Free Response to Motion - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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Filed 02/05/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on February 5, 2007

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO VACATE STAY ON BRIEFING AND CONSIDERATION OF MOTIONS FOR PARTIAL SUMMARY JUDGMENT Defendant, the United States, submits this memorandum in opposition to Plaintiffs' Motion To Vacate Order To Stay Briefing And Consideration Of Plaintiffs' Motion For Partial Summary Judgment (Dkt. No. 405). The stay was entered because Plaintiffs' motions for partial summary judgment were premature. As the United States explains, infra, the stay should remain in place because the motions remain premature. Furthermore, Defendant should not have to incur, at any time, the burden of preparing and filing a response to Plaintiffs' motion for partial summary judgment regarding the approval of the Shakopee Mdewakanton Sioux Community's "base roll" in 1969; and "approving Shakopee's Constitution in 1969," because that motion concerns issues this Court does not have any jurisdiction to consider, and has stated it will not consider.1/

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For example, at the outset of the January 25, 2007, hearing in this case, the Court stated that this case was not about tribal membership (among other things). As the United States explained in its January 12, 2007, response to Plaintiffs' additional briefing on the Communities motion to quash (Dkt No. 401), this Court has no jurisdiction to entertain disputes relating to

Case 1:03-cv-02684-CFL

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The Court granted the stay of briefing of Plaintiffs' motions for partial summary judgment to allow the question whether the Shakopee Mdewakanton Sioux Community and Prairie Island Indian Community ("the Communities") could be summoned into the case to be decided; and to allow the joinder of additional plaintiffs to be completed. Contrary to Plaintiffs' assertions in their motion to vacate, neither of those important issues has been resolved. The Court has taken the Communities' motion to quash and to dismiss under advisement, and has before it voluminous briefing by Plaintiffs, Defendant, the Communities, and one intervenor group on the question whether the Communities may properly be summoned (at Plaintiffs' behest) to participate in the case. The Communities stated at the January 25, 2007, hearing, that they intend to pursue interlocutory appeal if their motion to quash is denied. In short, the issue has not been decided. Likewise, the process of joinder of plaintiffs is not yet complete, despite the Court's setting (and twice extending) a deadline for intervention. Thousands of persons have sought intervention in this action since the most recent (July 12, 2006) extended deadline. The "original" Plaintiffs themselves filed a motion in January 2007 seeking to file a Fourth Amended Complaint to add more parties plaintiff to the case. (The United States filed an opposition to that motion.) Existing intervenor "groups," who seek to have more individuals admitted as intervenors, and new "groups" have sought to intervene as plaintiffs. The most recent intervention motion of which the United States is aware was not filed until January 24, 2007; and the United States's response to that motion is due no earlier than February 12, 2007. In its August 22, 2006, Opinion and Order, the Court rejected Plaintiffs' efforts to

tribal membership or approval of the Communities' constitutions. 2

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exclude intervenors from participating in the briefing and argument on the motions for partial summary judgment. Wolfchild v. United States, 72 Fed.Cl. 511, 520-21 (2006). To lift the stay before the party motions are decided and joinder of plaintiffs is complete, or before the final resolution of the question whether the summonses to the Communities should be quashed, would be inconsistent with the principle that all proper parties to the litigation should have the opportunity to participate in the decision of those issues. In summary, the briefing and consideration of Plaintiffs' pending motions for partial summary judgment remains premature, in light of the foregoing. In addition, as noted above, Plaintiffs' motion for partial summary judgment involving membership issues and approval of the Shakopee Constitution should not be entertained at all. If the Court should decide, at an appropriate time, to entertain that motion after responsive briefing, the United States intends file an opposition to it; however, the Defendant should not be made to suffer the severe prejudice of having to expend time and resources briefing and filing an opposition to a motion on issues that have no place in this litigation or this Court. Nor should the record in this case be filled with additional voluminous material that has no relevance to the claims and defenses in the case.2/ For all of the foregoing reasons, Plaintiffs' motion to vacate the order to stay briefing on Plaintiffs' motions for partial summary judgment should be denied.

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Plaintiffs' supplemental briefing on the Communities' motion to quash and the United States's response thereto was ten pages long, but was accompanied by two voluminous appendices containing hundreds of pages of material relating to membership issues, which this Court has no jurisdiction to entertain, and which the Court properly has stated it will not entertain. 3

Case 1:03-cv-02684-CFL

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Dated: February 5, 2007

Respectfully submitted,

MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division

s/Laura Maroldy LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorney of Record for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044-0663

OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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