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

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Sheldon Peters Wolfchild, et al.

Plaintiffs, Vs. United States,

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

FIRST AMENDED COMPLAINT IN INTERVENTION Defendant,

and Henry Albert Meng IV et. Al., and Individuals Listed on the Following Pages

Intervenors.

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First Name Jamie Jessie Charity Purity Jessica Teigen Arionna LouDiamond Bobbi Jo Manuel Peter Francisco Carol Frankie Daniel Vanessa Dustin Alex Leroy Linda John Ann Kenneth Rose Naquia Rosanna Nevaeh Madison Joseph Alexander

Last Name Meng Meng Taylor Weisz Marshall O'Rourke O'Rourke O'Rourke Marshall Marshall Martinez Martinez Jr. Martinez Martinez Martinez Martinez Martinez Martinez Martinez Martinez Martinez Roberts Trudell Trudell Thomas Richard Richard Richard Richard Richard

AKA

Pedro Martinez

Trudell

Richard Richard

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Daniel Kenneth Jeffrey Jessie Cheyene Kiana Naqia Johnny Jacob Lucille Rochelle Terrence Terry Tina Mary Timothy Casey Dakota Denise Todd Tiffany Adam Tasha Lavina Ronald Christopher Brandy Brandon Reginald Crystal Gabriela

Richard Richard Garnett Garnett Garnett Garnett Garnett Garnett Garnett Case Barnes Case Case Trudell Reinert Reinert Jr. Reinert Reinert Svoboda Svoboda Svoboda Svoboda Svoboda Trudell-Prue Trudell Trudell- Wortman Trudell- Wortman Trudell- Wortman Trudell Ramirez-Chavez Harnandez Allison Trudell Trudell Trudell

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Tomas Lesandro Athena Lysandra Roberta Connie Maria Kelly Dillion Brendalyn Kora Alfred Joseph Zoeann Sarah Aaron Alexavier Elizabeth Samuel Rick Shania Shawn Ralph Duane William Damon Desiree Anthony Shannon Sebastian Aslia

Alvizo-Allison Alvizo-Allison Allison Nuno-Allison Babcock Salinsa Ruiz Babcock Babcock Babcock Babcock Babcock Babcock McKee Karn Letts Karn Karn Karn Babcock Babcock Babcock Babcock Babcock Babcock Picotte Picotte Trudell Saltzman Saltzman Saltzman Trudell Trudell Babcock

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Jonathan Melinda Jennifer Joe Sadee Rose Justin Jayceon Rhonda Brenda Roni Sesilia Marcus Troy Landon Juaquin Megan Desiree Cory Juania Donovan Tayden Quroeen Orion Shi-Matthew Mary Malia Mateo Anthony Kaylee Shanica

Saltzman Trudell Trudell Trudell Trudell Leading Fighter Adams LaBatte Bellis Manchego Sherman Chavez Chavez Sherman Sherman Manchego Manchego Manchego Manchego Manchego Manchego Esperas Manchego Clark Sartorio March Marquez Marquez Marquez Tucker Tucker Bellis Leading Fighter

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Dustin Harper Lance Kain Netawn Crystal Robert Franklin Eugene Nancy Kari Andrew Zona Logan Tara Aniya Patrick Nathan Peter Noah Landon Thomas Michael Gregory Timothy Tina McKayla Kelly Brianna John Kathleen

James Saul Brandt Brandt Kiogima DuBray DuBray LeMay LeMay Nicklin Gusman Nicklin Gusman Gusman Corpening Corpening LeMay LeMay LeMay LeMay LeMay LeMay LeMay LeMay LeMay Hoffman Hoffman Hoffman Hoffman LeMay Cooper LeMay LeMay Nicklin LeMay Nicklin Graham

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Michael Cerrissa Amanda

LeMay-Hajarizadeh Elkins Elkins

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The above named Intervenors, for their Complaint in Intervention, state and allege as follows: JURISDICTIONAL STATEMENTS 1. Intervenors file this Complaint in the United States Court of Federal

Claims pursuant to the jurisdiction granted under 28 U.S.C. §§ 1491, 1505 et. seq. Intervenors seek to recover damages for Defendant's mismanagement of a trust created for their benefit and breach of trustee fiduciary duties. Intervenors claim an interest in the property which is the subject of this action. The disposition of this action may impair or impede Intervenors' ability to protect their interests. PARTIES 2. Plaintiffs brought suit as trust beneficiaries of Minnesota lands, commonly

referred to as the "1886 Lands," held in trust by the United States of America. 3. Defendant is the United States of America since the federal government

was to hold the 1886 Lands in trust. 4. The above mentioned Plaintiffs/Intervenors are lineal descendants of

Joseph Moose Sr., Joseph Moose Jr., Lucy Otherday, Mary Labatte, Maggie Campbell, Benjamin Westman, John Frazier and Ellin Turpin. Intervenors are lineal descendants of Loyal Mdewakantons who resided in Minnesota on May 20, 1886 and severed their tribal relations; therefore, Intervenors are trust beneficiaries of the 1886 Lands. Some of the Intervenors have yet to attain the age of majority. Accordingly, they appear in this action by their parent, legal guardian and/or their next friends. 5. On December 16, 2005 the Court entered its Opinion and Order whereby

it provided a mechanism through which those who claim to be descendants of the Loyal

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Mdewakanton could appear in this action. Intervenors are descendants of a Loyal Mdewakanton. FACTS 6. As more fully set forth in the Court's opinions of October 27, 2004 and

December 16, 2005, certain Mdewakanton Sioux were loyal to the United States during the Sioux Outbreak in Minnesota in 1862. As such, the United States Congress in three separate Acts appropriated land, among other things, to be provided to the Loyal Mdewakanton. These Acts of Congress were enacted on June 29, 1888, 25 Stat. 217, 228229, March 2, 1889, 25 Stat. 980, 992-993 and August 19, 1890, 26 Stat. 336, 349. 7. With respect to land actually purchased, the land was designated as "the

1886 Lands." The 1886 Lands were purchased by the United States and placed into trust for the beneficiary class of Loyal Mdewakantons and their descendants. The 1886 Lands were acquired pursuant to the three Acts of Congress mentioned above. 8. Intervenors are lineal descendants of Joseph Moose Sr., Joseph Moose Jr.,

Lucy Otherday, Mary Labatte, Maggie Campbell, Benjamin Westman, and John Frazier, each of whom appear as a Loyal Mdewakanton whose name appears on the 1886 census prepared by U.S. Special Agent Walter McLeod ("1886 Census"). A copy of the relevant portions of the hand written 1886 Census, signed by U.S. Special Agent Walter McLeod, is attached hereto, marked Exhibit 1, and made a part hereof as if fully set forth herein. 9. Intervenors establish through birth certificates, death certificates,

baptismal records, etc., proof of their descendancy from Joseph Moose Sr., Joseph Moose Jr., Lucy Otherday, Mary Labatte, Maggie Campbell, Benjamin Westman and John Frazier.

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10.

Several of Intervenors parents and family members have been included as

parties by Plaintiff's Counsel in this action as lineal descendants of Joseph Moose Sr., Joseph Moose Jr., Lucy Otherday, Mary Labatte, Maggie Campbell, Benjamin Westman, John Frazie r who appear on the 1886 Census. 11. Intervenors were unable to provide proof of descendancy to Plaintiff's

Counsel prior to their deadline. Intervenors have since obtained the appropriate proof. 12. Remaining Intervenors are descendants of Ellin Turpin, a Loyal

Mdewakanton whose name appears on the 1886 census prepared by U.S. Special Agent Walter McLeod ("1886 Census"). A copy of the relevant portions of the hand written 1886 Census, signed by U.S. Special Agent Walter McLeod, is attached hereto, marked Exhibit 1, and made a part hereof as if fully set forth herein. 13. Intervenors establish through birth certificates, death certificates,

baptismal records, etc., proof of their descendancy from Ellin Turpin. 14. Intervenors parents have been included as parties by Plaintiff's Counsel in

this action as lineal descendants of Ellin Turpin who appears on the 1886 Census. 15. The Turpin Intervenors live in the Oregon area. The Turpin Intervenors

did not receive notice of the litigation until the Easter Holiday on April 7th 2007. Upon learning of the litigation they contacted counsel and provided the appropriate documentation to prove lineal descent to Ellin Turpin. 16. As the trustee of the 1886 Lands, the United States of America had the

duty and obligation to maintain and manage the 1886 Lands in the best interest of all the trust beneficiaries. Contemporaneous with this duty was the duty to ensure the uses, benefits, and revenue generated from the 1886 Lands would be distributed equally among

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the beneficiaries, and only among the beneficiaries. This includes the distribution to beneficiaries of casino and other business revenue generated by the 1886 Lands. 17. In 1980, by an Act of Congress, the United States of America transferred

the 1886 Lands to be held in trust for three Indian communities, rather than for the Loyal Mdewakanton. BREACH OF FIDUCIARY DUTY/TRUST MISMANAGEMEMENT 18. Intervenors reallege the allegations set forth in the preceding paragraphs of

this Complaint in Intervention as though fully restated herein. 19. Through actions taken in December 1980 and thereafter, Defendant has

breached its statutory and other fiduciary duties attendant to its role as trustee for the trust that was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants, which trust included land, improvements to land, and monies as the corpus. 20. As a consequence of Defendant's breaches of its statutory and other

fiduciary duties, the Lineal Descendants have been damaged. This damage includes, but is not limited to, the deprivation of the full benefit of trust income, profits, proceeds, and other tangible benefits arising from the trust corpus, to which these Lineal Descendants are lawfully and equitably entitled. 22. As a direct and proximate cause of Defendant's breaches of its statutory

and other fiduciary duties, the Lineal Descendants have suffered damages in an amount in excess of $10,000.00. WHEREFORE, Pla intiffs-Intervenors Henry Albert Meng IV et. Al., respectfully pray for judgment from the Court as follows:

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1.

For damages, including prejudgment interest, to be paid by the

United States to the Lineal Descendants of Joseph Moose Sr., Joseph Moose Jr., Lucy Otherday, Mary Labatte, Maggie Campbell, Benjamin Westman, John Frazier and Ellin Turpin, all Loyal Mdewakanton Indians; 2. For an accounting of all income, profits, proceeds, and other tangible

benefits arising from the trust corpus that are owed to the Lineal Descendants of Joseph Moose Sr., Joseph Moose Jr., Lucy Otherday, Mary Labatte, Maggie Campbell, Benjamin Westman, John Frazier and Ellin Turpin, who are thus Lineal Descendants of a Loyal Mdewakanton Indian, from the trust that was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants; 3. For a declaration, tied and subordinate to the award of damages and

remedy of accounting to the Lineal Descendants, describing the current and prospective legal rights and privileges owned or possessed by the Lineal Descendants of the Loyal Mdewakanton Indians, which arise from the trust that was created in connection with and as a consequence of the 1888, 1889 and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants; 4. For a declaration, tied and subordinate to the award of damages and

remedy of accounting to the Lineal Descendants, describing the current and prospective legal duties and obligations owed to the Lineal Descendants of the Loyal Mdewakanton Indians, by the United States of America, the Lower Sioux Community, the Shakopee Mdewakanton Sioux Community, and the Prairie Island Indian Community, which arise from the trust that was created in connection with and as a consequence of the 1888,1889,

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and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants; 5. For an award of prevailing party attorney fees and related costs allowed

under the Equal Access to Justice Act, 28 U.S.C. § 2412; and 6. For such other, further, or different relief as the Court deems proper, just,

and equitable, including any and all alternative relief sought in the Prayer for Relief of the Individual Plaintiffs' Third Amended Complaint. Dated this 18th day of April, 2007. /s/Garrett J. Horn Horn Law Office LLC P.O. Box 886 Yankton, SD 57078 (605) 260-4676 Telephone (605) 260-0624 Facsimile Attorney of Record for Intervenors

/s/Creighton A. Thurman Thurman Law Office LLC P.O. Box 897 Yankton, SD 57078 (605) 260-0623 Telephone (605) 260-0624 Facsimile Attorney of Record for Intervenors

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