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

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

Plaintiffs, Vs. United States, Defendant, and Deborah L. Saul et al., and Individuals Listed on the Following Pages Intervenors.

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

FIRST AMENDED COMPLAINT IN INTERVENTION

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First Name Gaynell Larry Leslie Elaine Darren Patricia Rebecca Candy Cami Maci Benjamin Michael Toni Donna Kelsey Kayla Mona Michael Denise Kylie Javier Elizabeth

Last Name Rouillard Rouillard Rouillard James James Eichberger White Schott Schott Schott Schott Eichberger Ehlers Krom Krom Krom Wendzillo Wendzillo-Gracey King King Garzon Richardson

AKA/MAIDEN Mackey

Mackey Rederth Iacona Sullivan Sullivan

Wendzillo Wendzillo

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Anthony Cynthia Damon Kelli Brianna Jayden Ryan Victoria Aaron Adam Phillip Brenda Jason Jaden Jasmin Brendan Lillian Christen Richard Kathryn Andrea Meghan Judy

King Lingebach Deming Deming Jacobs Jacobs Deming Deming Deming Deming Wendzillo Semmler Semmler Semmler Semmler Semmler Semmler Semmler Mackey Spelbring Spelbring Spelbring Gaston Mackey Mackey Mackey Wendzillo Wendzillo

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Foley Ryan Wade Griffen West Chase Jodi Osborne Olivia Hannah Jeremy Shisty Sadie Allen Peter Travis Megan Grace

Mackey Gaston Mackey Mackey Mackey Mackey Campbell Snedeker Snedeker Campbell Mackey Mackey Mackey Mackey Mackey Mackey Mackey Mackey Snedeker & Mackey

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Intervenors Deborah L. Saul, et al., and Individuals Listed on the Aforesaid Pages ("Intervenors"), for their Complaint in Intervention, state and allege as follows: JURISDICTIONAL STATEMENTS 1. Intervenors file this Complaint in the U. S. 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. Intervenors are 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 whereby those who claim to be descendants of the loyal Mdewakanton could appear in this action. Intervenors are descendants of the loyal Mdewakanton.

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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 during 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, 228-229, March 2, 1889, 25 Stat. 980, 992-993 and August 19, 1890, 26 Stat. 336, 349. The August 19, 1890 Act dealt with full and mixed blood Indians. 7. With respect to land actually purchased, the land was designated as

"the1886 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 direct descend ants of Mary Jane Robinson also known as

Mary Jane Wagiwin also known as Mary Jane Wakute. Mary Jane Robinson, born on or about 1824, was a daughter of chief Wakute (Redwing Sr.). (McLeod Roll). 9. Mary Jane (Wagiwin) appears on the 1886 Census as the sixty-two year

old Mother-in- law of Samuel Bluestone. A copy of the 1886 Census is attached hereto, marked Exhibit 1 and made a part hereof as if fully set forth herein. 10. Mary Jane Wakute appears on the 1889 Census as a widow. A copy of the

1889 Census is attached hereto, marked Exhibit 2 and made a part hereof as if fully set forth herein. 11. Mary Jane Robinson, a/k/a Mary Jane Wagiwin, a/k/a Mary Jane Wakute

was married to Thomas Robinson who was a "noted" scout for the United States

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Government after the Sioux outbreak of 1862 and was a member of General Silbey's expedition in 1863. Mary Jane Robinson is listed as the widow of Thomas Robinson in the 1892 List of Sioux Scouts and Soldiers, prepared by S.H. Elrod. A copy of the 1892 List of Sio ux Scouts and Soldiers, prepared by S.H. Elrod is attached, marked Exhibit 3, and made a part hereof as if fully set forth herein. 12. Thomas Robinson died September 29, 1887 at his home three miles west

of Tyler, Minnesota. He was sixty-six years old at the time of his death. 13. Thomas Robinson had a second wife named Mary Robinson (Mastin), age

thirty-nine in 1885 who should not be confused with Mary Jane Robinson, a/k/a Mary Jane Wagiwin, a/k/a Mary Jane Wakute. 14. In 1890, Mary Jane Robinson (Wagiwin) located in Mendota Township,

Dakota County, Minnesota with Louise (Lucy) Bluestone and Lucy's husband Samuel Bluestone who is also listed with Mary Jane in the 1886 Census. 15. The Wabasha County Rolls show Mary Jane Robinson had three children

with Thomas Robinson, namely Sarah, Eliza and Lucy. Under information and belief, Mary Jane Robinson had a fourth child named Celestia. 16. Mary Jane Robinson, as the mother of minor child, Sarah Robinson, born

at St. Paul, Minnesota, September 14, 1855, gave consent to the marriage of Sarah Robinson and Alfred Henry Demers (French descent) in Wabasha County, Minnesota on August 15, 1870. Mary Jane Robinson was listed as Jane Robinson in this document. A copy of the Wabasha County, Minnesota District Court consent to Solemize Marriages is attached, marked Exhibit 4, and made a part hereof if fully set forth herein.

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17.

Sarah Robinson and Alfred Henry Demers were divorced in Minnesota

State Court on or about six years later. Sarah and Alfred Henry Demers had three children, namely: Edward Mackey, Martha Mackey and Paul (Napoleon) Demers. A copy of the Order Determining Heirs in the Estate of Sarah Mackey and attached testimony of disinterested witnesses Antoine Trudell and Abraham Redwin and testimony of claimants Martha Mackey Redowl, John Mackey, Henry Robinette and Lorinda Robinette are attached, marked Exhibit 5 and made a part hereof as if fully set forth herein. 18. Sarah Robinson was then legally married to Thomas Mackey in 1879.

Sarah and Thomas Mackey had nine (9) children, namely: William Mackey, Frank Mackey Robinson, Mary Mackey Robinette, John Mackey, Carrie Mackey, Thomas Mackey, Florence Mackey, Clarence Mackey and Robert Mackey. 19. Sarah Mackey (Robinson) is listed in the Cens us of Santee's, October 1,

1887 along with her surviving children from the two marriages. A copy of the Census of Santee's, October 1, 1887 is attached, marked Exhibit 6, and made a part hereof as if fully set forth herein. 20. Sarah Mackey (Robinson) is listed in the Santee Indian Census, 1902

along with several of her surviving children. The Santee Indian Census, 1902 lists Sarah Mackey's parents as Tom Robinson, deceased and Wagiwin. (Emphasis Added). A copy of the Santee Indian Census, 1902 is attached, marked Exhibit 7, and made a part hereof as if fully set forth herein. 21. The Intervenors are descendents of loyal Mdewakanton.

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22.

As trustee of the 1886 Land of the United States of America had the duty

and obligation to maintain and manage the 1886 Lands in the best interest for all of 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 the beneficiaries, and only to the beneficiaries. This includes the distribution to beneficiaries of casinos and other business revenue generated by the 1886 Land. 23. In 1980, by an Act of Congress the United States of America transferred the 1886 Lands to be held in trust for three the Indian communities rather than for the loyal Mdewakanton. COUNT ONE BREACH OF FIDUCIARY DUTY/TRUST MISMANAGEMEMENT 24. Intervenors reallege the allegations set forth in the preceding paragraphs of

this Complaint in Intervention as though fully restated herein. 25. 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. 26. As a consequence of Defendant's breaches of its statutory and other

fiduciary duties, certain of 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.

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27.

As a direct and proximate cause of Defendant's breaches of its statutory

and other fiduciary duties, certain of the Lineal Descendants have suffered damages in an amount in excess of $10,000.00. WHEREFORE, Plaintiffs-Intervenors Deborah L. Saul, et al., respectfully pray for judgment form the Court as follows: 1. For damages, including prejudgment interest, to be paid by the United

States to those Lineal Descendants of Mary Jane Robinson who are Lineal Descendants of the 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 those members of the Cournoyer family who are Lineal Descendants of the Loyal Mdewakanton Indians 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 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

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

under the Equal Access to Justice Act, see 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 28th day of February, 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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