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					      Case 1:03-cv-02684-CFL Document 1087    Filed 06/24/11 Page 1 of 6



         IN THE UNITED STATES COURT OF FEDERAL CLAIMS


_____________________________________________
SHELDON PETER WOLFCHILD, et al.,             )
                                             )
                                             )
                 Plaintiffs,                 )
                                             )      Case No. 03-2684L
                                             )       and
v.                                           )      Case No. 01-568L
                                             )      (consolidated)
THE UNITED STATES OF AMERICA,                )
                                             )
                 Defendant.                  )
                                             )
____________________________________________ )




               THE WOLFCHILD PLAINTIFFS’ RESPONSE
                 TO THE COURT’S JUNE 3, 2011 ORDER




                                         Erick G. Kaardal
                                         William F. Mohrman
                                         Mohrman & Kaardal, P.A.
                                         33 South Sixth Street
                                         Suite 4100
                                         Minneapolis, Minnesota 55402

                                         Attorneys for Wolfchild Plaintiffs
Dated: June 23, 2011

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      The Wolfchild Plaintiffs submit their Supplemental Brief answering

the three questions set forth in the Court’s June 3, 2011 Order.

        Question #1: Do 25 U.S.C. §§ 1401-08 apply to a money judgment
that is entered and subject to payment under 28 U.S.C. § 2517 and 31 U.S.C.
§ 1304?

        Answer: No. 25 U.S.C. § 1401 does not apply to the Wolfchild

plaintiffs’ case for two reasons.

        First, 25 USC § 1401 does not apply because the Court’s forthcoming

final judgment will be in favor of individuals – not in favor of a group. 25

USC § 1401 does not apply to judgments entered in favor of individual Indian

class beneficiaries as demonstrated in Short v. United States, 12 Cl.Ct. 36

(1987). 25 USC § 1401 does not apply to judgments in favor of such

individuals because the statute’s application is specifically limited to

judgments issued “in favor of any Indian tribe, band, group, pueblo or

community”:

      (a) Use and distribution
      Notwithstanding any other law, all use or distribution of funds
      appropriated in satisfaction of a judgment of the Indian Claims
      Commission or the United States Court of Federal Claims in favor of
      any Indian tribe, band, group, pueblo, or community (hereinafter
      referred to as "Indian tribe"), together with any investment income
      earned thereon, after payment of attorney fees and litigation
      expenses, shall be made pursuant to the provisions of this chapter.

(emphasis added.) It is clear from the plain language of §1401 and its clear

purpose that §1401 only applies if the party plaintiff is an entity and not


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specifically named individuals. It seems clear that Congress’ concern was

that if a money judgment was entered against the United States in favor of,

for instance, an Indian tribe and the money was supposed to be distributed to

the individual members of the tribe, Congress was concerned that if the gross

amount of the judgment were paid to the tribe the individual members of the

tribe would not ultimately receive each individual’s share of the money

judgment.

      This analysis is confirmed in Short which held that 25 USC § 1401 did

not apply because the judgment was issued in favor of individual Indian class

beneficiaries.

      The United States’ brief harmonized the inapplicability of 25 USC §

1401 in Short with 157 cases where 25 USC § 1401 applied by stating Short

was a case with individual plaintiffs. So, the applicability of 25 USC § 1401

turns on whether the judgment is in favor of individual plaintiffs or a group

plaintiff.   The effort in the United States’ brief to establish that the

applicability of 25 USC § 1401 turns on the applicability of Indian Tucker Act

jurisdiction, 28 U.S.C. § 1505, is unavailing. 25 USC § 1401 does not even

mention the Indian Tucker Act; instead, it distinguishes between judgments

entered in favor of individual plaintiffs (does not apply) and judgment

entered in favor of a group or tribal plaintiff (does apply). The best way to



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explain the non-applicability of 25 U.S.C. § 1401 in Short is the judgment was

entered on behalf of individual plaintiffs.

      Second, 25 USC § 1401 does not apply because no separate, specific

appropriation has been enacted satisfying a CFC judgment in the Wolfchild

Plaintiffs’ favor. 25 U.S.C. § 1401 does not apply until Congress has actually

appropriated funds to pay a COFC judgment separate and apart from

funding via 28 U.S.C. § 2517 and 31 U.S.C. § 1304. So, the government’s

argument is based on a contingency – that Congress would actually enact, in

the future, a specific claims distribution act for the 1886 claimants someday

to satisfy a COFC judgment of less than $1,000,000. It is possible, but it may

not happen. Thus, the government’s argument is premature until such a

Congressional Act is enacted.

Question #2: If Chapter 16 of Title 25 does not apply to such a money
judgment, can and should a distribution plan nonetheless follow and reflect
the plan provisions set out in Chapter 16?

      Answer: No. If Chapter 16 of Title 25 does not apply, under Short v.

United States, 207 Ct.Cl. 964 (1975), the determination of the individual

class beneficiaries remains an adversarial proceeding. The United States

brief agrees:

      [T]he government does not have a role in distribution of a money
      judgment outside of the requirements of the Act [25 USC § 1401].
      Indeed, in that circumstance the onus would be on the Plaintiffs to
      come before the Court and prosecute their claims. Short v. United
      States, 207 Ct.Cl. 964 (1975) (“The Plaintiffs must prove their own

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      claims and the Government is not required to make such proof for them
      and this court is without authority to require the Government to
      prosecute the claims for them.”). Indeed, to the extent there is a
      distribution of funds of a money judgment before this Court, it remains
      an adversarial proceeding. Id. Therefore, eligibility standards and
      entitlement determinations are the burden of the plaintiffs.

Br. at 12.

      Under these circumstances, the Wolfchild plaintiffs respectfully request

the Court to follow a schedule to enter final judgment similar to the one that

follows:

             Wolfchild Plaintiffs’ Proposal:

             1981 Trust Fund Claim

                1. The Court enter summary judgment for all named
                   Plaintiff claimants of lineal descent to persons on 1886-
                   1889 censuses and thus entitled to a portion of 1981 trust
                   fund claim.

                2. The Court enters partial final judgment (liability, damages
                   and specific claimants listed) as to 1981 trust fund claim.

             Distribution Plan

                    The Court, in addition to issuing the partial final judgment,
             would issue an order directing the government to pay a check to
             Mohrman & Kaardal which would be deposited in the Mohrman
             & Kaardal trust account for distribution within 150 days to the
             persons entitled to judgment in the partial final judgment.
             Morhman & Kaardal will report to the Court regarding the status
             of the distribution and immediately contact the Court with issues
             that arise regarding that distribution (e.g., deceased claimants;
             no forwarding address to complete the distribution). The firm will
             also inform the Court upon the completion of the distribution.

             1863 Acts Claims

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                 After steps for 1981 trust fund claim are completed, the
           case proceeds to final judgment on 1863 Acts claims to be entered
           by end of August, 2011.


       Question #3: If Chapter 16 of Title 25 does apply to such a money
judgment, what is the court’s role in ensuring that the distribution plan
accords with the judgment that is entered?

     Answer: If the Court issues judgment in favor of the individual Indian

class beneficiaries, Chapter 16 of Title 25 does not apply. (See Answer to

Question No. 1.) If the Court enters a judgment in favor of a group or tribal

plaintiff causing Chapter 16 of Title 25 to apply, the Wolfchild plaintiffs

would agree that the Court’s role would be more limited. However, without

the final judgment issued by the Court in hand, any further response on this

question would be speculative.

 
                                      MOHRMAN & KAARDAL, P.A.

Dated: June 23, 2011
                                      /s/ Erick G. Kaardal
                                      Erick G. Kaardal
                                      William F. Mohrman
                                      33 South Sixth Street, Suite 4100
                                      Minneapolis, Minnesota 55402
                                      Telephone: 612-341-1074

                                      Attorneys for Wolfchild Plaintiffs


 




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