Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 03-2684L ) ) ) ) ) ) ) ) ) ) )

SHELDON PETERS WOLFCHILD, et al., Plaintiffs, v. UNITED STATES, Defendant.

MOTION OF CERTAIN INTERVENOR GROUPS TO DEFER RULING ON PENDING POST-DEADLINE INTERVENTION MOTIONS The undersigned, counsel for the Lafferty, Whipple, Lowe and Blaeser Intervenors, on behalf of those groups and on behalf of the intervenor groups named at the end of this motion, all of which expressly join in this motion, hereby move this Court for its order deferring ruling(s) on any and all pending and future-filed intervention motions that post-date the July 2006 deadline previously set by this Court until a later date that will be established by the Court in a comprehensive scheduling order. The grounds for this motion are as follows: 1. There is, as yet, no articulated standard of "good cause" framed by this

Court in the context of the issues that confront both potential intervenors and counsel for potential (and existing) intervenors in this case. Articulation of a standard of "good cause" depends on numerous factors that have not yet been litigated in this case, but that necessarily will be litigated in this case. 2. It is in the best interests of judicial economy and all parties to this

litigation to avoid a proliferation of motions to intervene and to consolidate briefing and

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argument on all such motions at a single point in time that is set well in advance by the Court after full consideration of numerous issues not yet briefed or considered by the Court. These issues--and the Court's rulings on them--will almost certainly have a bearing on the question of whether intervention is timely and proper by any given proposed intervenor. 3. The Intervenors who bring this motion ("Moving Intervenors") have all

(or virtually all) been contacted by potential intervenors whose names were not included on motions to intervene filed prior to the July 2006 deadline. Reasons for the noninclusion of such persons vary widely, and include such reasons as · · · · · · · subsequent birth; adoption; incarceration; service in the Armed Forces; absence of notice of any kind; person was turned down for representation by another attorney shortly before the deadline; etc.

As well, questions arise concerning substitution of parties upon the death of an intervenor. Moving Intervenors believe that periodic, sporadic and repetitive motions of this kind are expensive, time consuming for the Court and its staff, and unnecessary at this stage of the case. 4. This Motion is premised in part on a belief by Moving Intervenors that the

statute of limitations for direct filing of breach of trust claims against the United States has not run, because the breach is ongoing, and will not run until an unknown date well in

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the future. Accordingly, the urgency of a ruling by the Court on motions to intervene is minimal. Denial of such motions could lead to the filing of separate suits that would almost certainly be consolidated with this case for further proceedings. For this reason alone, early determination of these motions could be counter-productive (if the motions are denied), because this case would be at risk of becoming procedurally even more complex than it already is without changing the relevant issues that must be decided. 5. Moving Intervenors believe that questions of intervention (and the right to

intervene) should be considered only after the resolution of several underlying issues in this case, including the following: · Issue No. 1: Who is a beneficiary of the trust? Many existing intervenors (and undoubtedly some prospective intervenors) claim that they are descended from Loyal Mdewakanton who qualified for trust beneficiary status, but who were not listed on the 1886 or 1889 census rolls. But these two censuses appear to have formed the exclusive basis for qualification to be one of the "original" plaintiffs in this case. This Court's prior rulings have distinctly left open the possibility that other groups may qualify for trust beneficiary status as well. The viability of claims asserted by at least some Moving Intervenors rests entirely on resolution of such issues. Issue No. 2: When must genealogical proof/evidence be produced? While there has been no ruling on either the nature, quality, or timing of genealogical evidence, counsel for plaintiffs (and, on information and belief) counsel for some intervenor groups have required production of specific genealogical evidence as a precondition to representation. As a result, great confusion exists in the greater Mdewakanton community as to whether intervention is possible without presentation of genealogical proof. Moving Intervenors suggest, and will argue strenuously at such time as the Court entertains motions for a scheduling order, that questions of genealogy should be resolved only at the "back end" of these proceedings, so as to avoid waste of the Court's time on matters of genealogy for groups whose ancestors are later ruled to have been ineligible for trust beneficiary status. Issue No. 3: Class certification, notice and due process: Though originally styled a class action, this case is not proceeding as a class action at this time. Moving Intervenors believe the question of whether this case could or should proceed as a class action have not been fully examined by 3

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motion and briefing. While Moving Intervenors take no position at present on these questions, there appear to be open questions as to the possibility of future class certification motions, the possibility of subclasses, and the possibility that notice must be directed to known and unknown class members in a manner very different than the manner in which notice in this case originally emanated. Again, these questions depend in turn on resolution of the larger question of exactly who is a trust beneficiary. Moving Intervenors are confident that the answer to this question will require briefing and rulings from this Court before issues of class certification and further notice become necessary or even relevant. 6. As well, Moving Intervenors believe that significant passage of time is

likely to occur before it is logically or equitably necessary to foreclose participation by descendants of trust beneficiaries. This belief is based on the fact that there are important questions--both legal and practical--that almost certainly will (or should) be decided before it is possible to identify specific descendants who may be entitled to share in any damages awarded in this case. As the case progresses, one or more parties may well petition for interlocutory appeal of critical rulings, given the unique nature of the case and the trust. These rulings include the rulings in Wolfchild I and II; the sovereign immunity issues currently pending before the Court; later rulings on who was--and was not--an original trust beneficiary; and rulings on how damages might be determined in the event the Court's prior rulings are upheld. The latter issue will be impacted by the outcome of the currently pending sovereign immunity ruling, though Moving Intervenors recognize that a ruling on the pending motion to quash the Court-issued subpoena may involve somewhat different considerations than a later ruling on whether the Communities must respond to discovery in aid of the necessary trust accounting. 7. Moving Intervenors intend, at such time as the Court requests proposals

for a scheduling order, to propose a detailed approach that will permit resolution of the "large" issues (which do not include issues of individual intervenor genealogy) before

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consideration of individual claims and genealogical proofs of any kind. Only at that point will the correct makeup of the intervenor population be determinable; at that point, Moving Intervenors suggest, the Court may well permit--or even require--that

additional notice be given, whether or not in the context of class certification. Dated: January 29, 2007. MOVING INTERVENORS

By:

s/ Wood R. Foster, Jr.
Wood R. Foster, Jr. Siegel, Brill, Greupner, Duffy & Foster, P.A. 1300 Washington Square 100 Washington Avenue South Minneapolis, MN 55401 (612) 337-6100 (612) 339-6591 (facsimile) Attorneys for Lafferty, Whipple, Lowe and Blaeser Intervenor Groups Jack E. Pierce Pierce Law Firm, P.A. 6040 Earle Brown Drive Suite 420 Minneapolis, MN 55430 (763) 566-7200 Fax: (763) 503-8300 Attorneys for Cermak, Sr., Stephens, Cermak, Henderson, Klingberg, Alkire, Arnold, Jr., and Godoy Intervenor Groups

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Kelly Hope Stricherz P.O. Box 187 Vermillion, SD 57069 (605) 624-3333 Attorney Group for Mozak Intervenor

Larry B. Leventhal David Garelick Larry Leventhal & Associates 319 Ramsey Street St. Paul, MN 55102 (612) 333-5747 Fax: (612) 344-1126 Attorneys Group for Burley Intervenor

Scott Allen Johnson Johnson Law Group 10801 Wayzata Boulevard Suite 120 Minnetonka, MN 55391 612 525-1224 Attorneys for Rocque and Taylor Intervenor Groups Robin Leonard Zephier Abourezk & Zephier 2020 W. Omaha Street P.O. Box 9460 Rapid City, SD 57709-9460 (605) 342-0097 Fax: (605) 342-5170 Attorneys for Zephier Intervenor Group

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Randy V. Thompson 710 Lawson Commons 380 St. Peter Street St. Paul, MN 55102 (651) 227-6661 Fax: (651) 287-0005 Attorneys for Abrahamson Intervenor Group Frances Elaine Felix P.O. Box 141232 Minneapolis, MN 55414 (612) 378-5214 Pro Se for herself and immediate family members

37-HSF-1/29/07-24467

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