Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) SHELDON PETER WOLFCHILD, et al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant, ) ) Anita D. Whipple, et al., Descendants of ) Lucy H. Trudell, et al., ) ) Plaintiffs in Intervention, )

Case No. 03-2684L Hon. Charles F. Lettow

AMENDED COMPLAINT IN INTERVENTION: DESCENDANTS OF LUCY H. TRUDELL, ET AL. Plaintiffs in Intervention ("Trudell Intervenors"), identified in paragraph 4 below, acting on behalf of themselves and (as specified below) on behalf of the minor children named herein and others born during the pendency of this suit, as contemplated by this Court's Orders of October 27, 2004 and August 6, 2007, make the following allegations and claims pursuant to RCFC 24(c): 1. The jurisdictional and fact allegations contained in the Fourth Amended

Complaint on file in the captioned matter [Docket 407], are hereby incorporated by reference in this Complaint in Intervention as though fully set forth herein. 2. To the extent inconsistent withor supplemental tothe allegations in the Second

Amended Complaint, the facts and findings contained in this Court's rulings commonly referenced as "Wolfchild I" [35], "Wolfchild II" [99] and "Wolfchild III" [250] are also

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incorporated by reference in this Amended Complaint in Intervention, as though fully set forth herein. 3. To the extent additional allegations of jurisdiction and/or fact are contained in a

subsequent Complaint filed and approved prior by this Court, such allegations are incorporated by reference in this Amended Complaint in Intervention as though fully set forth herein. 4. The Trudell Intervenors, claiming descendancy from Lucy H. Trudell, et al., are The

listed on Amended Exhibit A hereto, which is by reference made a part hereof. amendments to Exhibit A relate only to children born since original intervention. 5.

Trudell Intervenors are prepared, at a time and place to be determined by the

Court, to present all documents necessary to establish individual entitlement of each Trudell Intervenor to the status of Indian Class Beneficiary and/or individual relief under the claims asserted herein. Trudell Intervenors assert further that their investigation and genealogical

research has been frustrated by facts and circumstances beyond their control, as will be demonstrated to the Court at such time as the Court hears evidence concerning matters pertaining to lineage. 6. To the extent legally permitted, and consistent with the allegations in paragraph

13 hereof, Trudell Intervenors seek, to the fullest extent permitted by law and ruling, to protect the rights of other descendants of 1886 Census families who have not yet received notice of this action or otherwise taken affirmative steps to establish lineage and protect their rights. This reservation and request is in keeping with the allegation herein that one of the fiduciary duties of the United States in this case is to affirmatively identify, notify and inform the members of the Class of the existence and characteristics of the trust, as well as their trust beneficiary status and their rights.

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7.

Trudell Intervenors are permitted to appear in this case through separate counsel

by reason of a statement to that effect in the Court-approved Notice permitting intervention. 8. All facts and related allegations pertaining to the original plaintiffs in this case

pertain also to Trudell Intervenors. 9. Trudell Intervenors claim an interest relating to the property and trust that is the

subject of this action, and further claim that the disposition of this action may as a practical matter impair or impede their ability to protect such interest. 10. Trudell Intervenors assert they are entitled to status as members of the "Indian

Class Beneficiary." 11. Trudell Intervenors further assert that questions of law and fact pertaining to

Trudell Intervenors are so closely related to questions of law and fact pertaining to the named plaintiffs in this case that Trudell Intervenors are entitledand should be permittedto intervene at this time. COUNT I Trust Mismanagement (Breach of Trust, Breach of Fiduciary Duty) 12. 13. Trudell Intervenors restate and reallege the above allegations as if fully set forth. As trustee of all the Indian trust lands at Shakopee, Prairie Island and Lower

Sioux, the United States has the following duties, among other duties, to the members of the Indian Class Beneficiary: (1) to acknowledge their beneficiary status; (2) to identify, notify and inform the members of the class of the existence and characteristics of the trust, their trust beneficiary status and their rights; (3) to ensure that the income, profits and proceeds from all reservation land (including but not limited to per-capita payments from casino profits and other revenues) are distributed as equally as practicable among all of the trust beneficiaries of the

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reservation lands and (4) to ensure that the pro-rated share of the income, profits and proceeds attributable to the 1886 Lands would accrue to the Indian Class Beneficiary alone, and no others. 14. The United States has violated its statutory and other fiduciary duties associated

with being a trustee of the Shakopee, Prairie Island and Lower Sioux reservation lands by misidentifying the trust beneficiary and by failing to acknowledge the beneficiary status of the Indian Class Beneficiary. 15. The United States has violated its fiduciary duty by failing to identify, notify and

inform the members of the Indian Class Beneficiary of the existence and characteristics of the trust, their trust beneficiary status and their rights. 16. The United States has violated its fiduciary duty by failing to ensure that the

income, profits and proceeds from all reservation businessesincluding per-capita payments from casino profitsare distributed equally as practicable among all of the trust beneficiaries of the reservation lands. 17. The United States has violated its fiduciary duty by failing to ensure that the share

of the income, profits and proceeds attributable to the 1886 Lands would accrue to the Indian Class Beneficiary alone, and no others. 18. The United States has violated its fiduciary duty by permitting the Shakopee

community and its members to violate the entitlements, rights and privileges of the plaintiffs as members of the Indian Class Beneficiary. These United States' violations began with the

Department of Interior's initial approval in 1969 of the Shakopee constitution and original membership list. These violations continue today.

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19.

Since 1980, the United States has violated its fiduciary duty by permitting the

Prairie Island community and its members to violate the entitlements, rights and privileges of the plaintiffs as members of the Indian Class Beneficiary. 20. The United States has violated its statutory and fiduciary duties under federal

statutes including but not limited to the 1988 Indian Gaming Regulatory Act, 25 U.S.C. §2701, et seq. The United States failed to protect the Indian Class Beneficiary's interests (vis-à-vis the communities and their members) when approving or permitting state-tribal gaming compacts; tribal ordinances and policies regarding gaming, per-capita payments and membership; casino management contracts; expenditures of net casino revenue; and per-capita distributions. 21. The United States has violated its fiduciary duty by failing to collect rents and

other revenues attributable to the 1886 Lands which would accrue to the Indian Class Beneficiary alone, and no others. 22. In violation of the United States' duties under the above-described trust, many of

the plaintiffs have received no use, benefit or privilege from the 1886 Lands or from the Shakopee, Prairie Island or Lower Sioux reservationsalthough the Communities and members of the three Communities are wrongfully receiving millions every year. 23. The United States' mismanagement of the 1886 Lands and breach of fiduciary

duties is the proximate cause of damage to the Indian Class Beneficiary in an amount in excess of $10,000. COUNT II Separately-Pled Claims of Minor Plaintiffs 24. Pursuant to the Court's order dated October 27, 2004, claims of minor children

have been subsumed into Count I.

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COUNT III [This Count is intentionally omitted.] COUNT IV Claim for Attorneys' Fees 25. 26. Trudell Intervenors restate and reallege the above allegations as if fully set forth. Pursuant to 28 U.S.C. §2412(b), the Equal Access to Justice Act, prevailing

parties against the United States are entitled to reasonable attorney's fees and related costs. 27. If the Trudell Intervenors prevail in this lawsuit against the United States, they

further request a court order awarding attorneys' fees and costs against the United States as permitted by law. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray for judgment from the Court as follows: 1. 2. 3. For an order permitting intervention by Trudell Intervenors. For damages to be paid by the United States to the Plaintiffs. For all litigation costs, costs, expenses and expert witness fees and reasonable attorney's fees allowed by law. For prejudgment interest. For an order under 28 U.S.C. §1491(a)(2) for such other and further relief as the Court deems to be proper and just including but not limited to the following: (1) directing the Secretary of Interior that the Plaintiffs as Lineal Descendants of the May 20, 1886 Minnesota Mdewakanton census are hereby restored to class beneficiary status; (2) directing the Secretary of the Interior to create and maintain a list of trust beneficiaries and to send each an annual trust account; and (3) directing the Secretary of Interior to ensure that the plaintiffs receive all the benefits and privileges associated with being Indian Class Beneficiary of about 950 acres of the Shakopee, Prairie Island and Lower Sioux Reservation. For an order directing the provision of further notice to members of the Indian Class Beneficiary as necessary to fulfill any fiduciary obligation of the United States.

4. 5.

6.

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7.

For such other and further relief as the Court deems to be proper and just.

Dated: August 20, 2007. By: ____________________________________ Wood R. Foster, Jr. SIEGEL, BRILL, GREUPNER, DUFFY & FOSTER, P.A. 1300 Washington Square 100 Washington Avenue South Minneapolis, MN 55401 (612) 339-7131 (612) 339-6591 (facsimile) Attorneys for the Trudell Intervenors
37-HSF-8/20/07-24467-Trudell

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Exhibit A
Amended Complaint in Intervention: Decsendants of Lucy H. Trudell, et al. LAST NAME Angus FIRST NAME Gina Rene MINOR/DEPENDENT CHILDREN Keisha Marie Muirhead Joshua Beau Murhead Chante Nicole Muirhead Caleb Christian Lee Pemberton Noah Brady Pemberton Devaney Daniel Angus Hunter Bert Angus Clifton Grant Asay Kylo Jacek Asay Cade James Asay Degan Zane Asay Mitchell Colton Hadlock Waverly Marie Collett Rachael Lynn Collett Samantha Clarice Collett James Walker Collett Kyle T. DeCory Challie B. DeCory Chaney DeCory Alex C. DeCory

Asay Asay Asay Asay Bailey Bethers Collett

Clifton Zane Elizabeth Mildred Lawton C. Sandra LaVerne Hackford Janis Marcia Brandon J. Nathan Samuel

DeCory DeCory DeCory DeCory, Jr. DeCory, Sr. Dotter Dotter Dotter Dotter Dotter Dotter, Jr. Edwards Edwards Edwards Farnsworth

Jeremy Peter T. Russell H. Kermit M. Kermit M. Amy Chase Herbert Jack Justin Larry Dean Jack Duane Adam Justin Jarod Shane Vernon James Julie Beth Edwards

Kayden Henline Gabe Chase Dotter

Mika Paige Dotter Matthew Deegan Dotter Jraevon Shane Edwards Brigg McNiel Donald Edwards Meagan Lee Edwards Natosha Dawn Farnsworth Cassidy James Farnsworth Dakota Gene Farnsworth

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Exhibit A
Amended Complaint in Intervention: Decsendants of Lucy H. Trudell, et al. LAST NAME Fletcher Greg Hackford Hackford Hackford Hackford Hackford Hackford Hackford FIRST NAME Kimberly Lauren Clifton Kermit Edith Marie DeCory Jesica Lee Jonathon Dewey Kermit DeCory Opal Shyreen Randolph George MINOR/DEPENDENT CHILDREN Taylor Rae Fletcher

Chloee Heressa Hackford Sireech Jason Dominic Harrison Kenzie S. Hackford Dalton DeCory Hackford Chelsea Bea Murphy-Hackford Taylor George hackford Olivia Cree Hackford Schuyler Jade Hackford Junior James Hackford Max Clifford Hackford Veronica Hackford Richard Dean Hackford Galven DewRay Hackford

Hackford Hackford

Randy Van Richard DewRay

Hackford Hackford Hadlock Kitto Powell Read Rios Robertson Robertson Tabbee

Richard Douglas Richita Marie Courtney Nicole Vern Tanya Lee Stephanie Cicile Marie Edwards Keith Allen Robert Wade Edith D.

Dakota Rose Kitto Cheyenne Jean Kitto Taylen Jayde Powell Brenen DeCory Powell Mickenzie Read Jaycee Read

Francheska Tabbee Christopher Tabbee Johnzae Rae Teresa Catalan Josephine Valdez Jose Valdez Unborn child due 1/08 Joseph R. Valdez Ramona T. R. Valdex Angel O. R. Valdez

Thompson Valdez

Elizabeth H. Jose R.

Valdez Valdez

Raymond N. Rosanna F. Hackford

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Exhibit A
Amended Complaint in Intervention: Decsendants of Lucy H. Trudell, et al. LAST NAME Whipple Whipple Whipple FIRST NAME Anita D. Edna E. Heath MINOR/DEPENDENT CHILDREN

Joseph Whipple