IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Transcription

1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS CHIPPEWA CREE TRIBE OF THE ) ROCKY BOY'S RESERVATION, et al., ) ) Plaintiffs, ) ) v. ) No L ) Judge Emily C. Hewitt THE UNITED STATES OF AMERICA, ) ) March 12, 2009 Defendant. ) ) PLAINTIFFS NOTICE OF CHANGE IN PLAINTIFF GROUP REPRESENTATIVE STATUS; PLAINTIFFS UNOPPOSED MOTION FOR ORDER REMOVING FRANCIS CREE, KATHERINE PEARL SINCLAIR CHILTON, AND DENNIS CHARLES PERRAULT AS PLAINTIFF GROUP REPRESENTATIVES AND FOR LEAVE TO MOVE TO NAME REPLACEMENT REPRESENTATIVES; AND, JOINT MOTION TO AMEND ORDER DATED FEBRUARY 24, 2009 I. INTRODUCTION Plaintiffs hereby notify the Court that three named individual Plaintiff Group representatives, Francis Cree, Katherine Pearl Sinclair Chilton, and Dennis Charles Perrault can no longer serve in that capacity. Plaintiffs also move this Court, without opposition, for an Order removing Mr. Cree, Ms. Chilton, and Mr. Perrault from serving as Plaintiff Group representatives in this action. As stated more fully below, with the Court s leave and Defendant s cooperation, Plaintiffs will shortly move to nominate appropriate Plaintiff Group representative replacements for Mr. Cree, Ms. Chilton, and Mr. Perrault. In addition, the parties jointly move to amend the Order dated February 24, 2009 (Dkt. No. 359) to provide that: 1) on or before March 31, 2009, Defendant will provide Plaintiffs with the names of at least 100 Non-member lineal descendant per capita beneficiaries of the Pembina Judgment Fund (PJF) 1980 Award and with the names of at least 100 White Earth Band of - 1 -

2 Minnesota Chippewa Indians (White Earth) tribe member per capita beneficiaries of the 1980 Award, and that these records or information provided will be taken from existing beneficiary records in Defendant s possession; 2) on or before April 30, 2009, Defendant will provide Plaintiffs with summary descriptions (such as document titles or document types) of records or information located by Defendant up to that point that contain PJF beneficiary names or information potentially relevant to the parties efforts to compile a complete list of PJF beneficiaries; 3) on or before May 15, 2009, the parties will confer and attempt to agree upon a list of records or information that the parties deem most relevant or most useful in compiling a complete list of PJF beneficiaries; 4) on or before July 15, 2009, Defendant will produce copies or images of the records jointly identified by the parties; 5) that portion of the Order requiring Defendant to produce any information in Defendant s possession regarding the whereabouts of any person named on any of the foregoing lists is stayed pending further discussions and development of jointly-agreed upon plans by the parties with beneficiary records. II. BACKGROUND Plaintiffs breach of trust claims challenging Defendant s management of the PJF are being litigated as group claims under the Indian Tucker Act, 28 U.S.C with the named Plaintiffs representing the interests of all PJF beneficiaries. Chippewa Cree Tribe of the Rocky Boy s Reservation v. United States, 69 Fed. Cl. 639, (Fed. Cl. 2006), recon. denied, 73 Fed. Cl. 154 (Fed. Cl. 2006). The named Plaintiffs are four Tribes, the Turtle Mountain Band of Chippewa Indians (Turtle Mountain), the Chippewa Cree Tribe of the Rocky Boy s Reservation, White Earth, and the Little Shell Tribe of Chippewa Indians of Montana, and thirty-four individuals. Pls. Third Amd. Compl., filed Apr (Dkt. Nos. 284, 286). All of Plaintiffs breach of trust claims against - 2 -

3 the United States are now in Alternative Dispute Resolution (ADR) proceedings before Court of Federal Claims Senior Judge Eric Bruggink. Feb. 24, 2009 Order, Dkt. No The February 24, 2009 Order directs the United States to provide a list of beneficiaries of the 1964 Award (including those individuals on the distribution list of 1984), and a list of beneficiaries of the 1980 Award (including those individuals on the distribution list of 1988 and the distribution list of 1994). Id. The Order further directs the United States to produce any more recent information in Defendant s possession regarding the whereabouts of any person named on any of the foregoing lists, to plaintiff as soon as reasonably practicable and in any case no later than Tuesday, March 31, Id. Finally, the Order states that Plaintiffs need prompt access to Turtle Mountain and Non-member lineal descendant beneficiary lists so they can select replacements for Mr. Cree and Ms. Chilton. Id. In the wake of the February 24, 2009 Telephone Status Conference (TSC) and ensuing Order, Plaintiff moves this Court, without opposition, for an Order removing Francis Cree, Katherine Pearl Sinclair Chilton, and Dennis Charles Perrault from their status as named representatives for the Plaintiff Group, and for leave to move shortly to nominate appropriate replacement Plaintiff Group named representatives for Mr. Cree, Ms. Chilton, and Mr. Perrault. In addition, the parties move jointly for an Order modifying the February 24, 2009 Order to grant the relief requested in Parts I and IV for the reasons that follow

4 III. PLAINTIFFS NOTICE OF CHANGE IN PLAINTIFF GROUP REPRESENTATIVE STATUS, AND PLAINTIFFS UNOPPOSED MOTION FOR AN ORDER REMOVING FRANCIS CREE, KATHERINE PEARL SINCLAIR CHILTON, AND DENNIS CHARLES PERRAULT FROM THEIR STATUS AS NAMED REPRESENTATIVES FOR THE PLAINTIFF GROUP AND FOR LEAVE TO MOVE TO NAME REPLACEMENT REPRESENTATIVES 1. As Plaintiffs reported during the February 24, 2009TSC two named individual representatives of the Plaintiff Group can no longer serve in that capacity due to changed circumstances. See Feb. 24, 2009 TSC Transcript at pp / 2. Plaintiffs reported that Mr. Francis Cree, a representative for the 1980 Award Turtle Mountain tribe member beneficiaries, is now deceased. See id. at p Mr. Cree represented members of the Plaintiff Group who are individual members of the Turtle Mountain tribe or their heirs, descendants, or successors in interest, who received or were eligible to receive per capita payments from the 1980 Award. See id. 4. Plaintiffs reported that Ms. Katherine Pearl Sinclair Chilton, a representative for the 1980 Award Non-member lineal descendant beneficiaries, now resides in a long-term care facility and can no longer perform in her representative capacity. See id. 5. Ms. Chilton represented members of the Plaintiff Group who are individual members of the group of Non-member lineal descendants or their heirs, descendants, or successors in interest who received or were eligible to receive per capita payments from the 1980 Award beneficiaries. See id. 6. Plaintiffs reported their intent to move this Court for leave to nominate two appropriate 1/ Defendant has no independent knowledge of the facts stated in paragraphs 1 to 6, but does not oppose Plaintiffs request for relief herein

5 additional representatives to replace Mr. Cree and Ms. Chilton as named representatives for the Plaintiff Group. See id. at pp Prior to and during the February 24, 2009 TSC, the parties discussed Plaintiffs informational needs to support a motion for replacement, and Defendant agreed to provide Plaintiffs with additional names of individual 1980 Award Turtle Mountain tribe member and Non-member lineal descendant beneficiaries. See id. at pp. 11, Immediately following the February 24, 2009 TSC, counsel continued their discussion about Plaintiffs informational needs from Defendant in replacing Mr. Cree and Ms. Chilton. 9. In a post-february 24, 2009 discussion, Plaintiffs counsel stated that upon further consideration, Plaintiffs do not need from Defendant the names of any additional Turtle Mountain tribe member beneficiaries to replace Mr. Cree and will require from Defendant only the names of some additional Non-member lineal descendant beneficiaries of the 1980 Award to select Ms. Chilton s replacement. Additionally, in another post-february 24, 2009 discussion, Plaintiffs counsel stated that since the February 24, 2009 TSC, she has learned that a named individual representative of the Plaintiff Group for the 1980 Award White Earth tribe members, Mr. Dennis Charles Perrault, is unable to serve in his capacity. 10. In these post-february 24, 2009 discussions, Defendant reaffirmed its intent to provide to Plaintiffs the names of additional Non-member lineal descendant beneficiaries of the 1980 Award, to work with Plaintiffs to confirm the beneficiary status of any individual Plaintiffs nominate to replace Mr. Cree, and to provide to Plaintiffs the names of additional White Earth tribe member beneficiaries of the 1980 Award. 11. Defendant will provide to Plaintiffs the names of at least 100 Non-member lineal - 5 -

6 descendant per capita beneficiaries of the 1980 Award on or before March 31, 2009 that will be taken from existing beneficiary lists currently in Defendant s possession. Defendant also will provide to Plaintiffs the names of at least 100 White Earth tribe member per capita beneficiaries of the 1980 Award on or before March 31, 2009 that will be taken from existing beneficiary lists currently in Defendant s possession. 12. Plaintiffs intend to file a motion to nominate additional appropriate named representative replacements for Mr. Cree, Ms. Chilton, and Mr. Perrault on or before April 13,2009 so that these replacements are nominated before the informational meetings scheduled for April 21 and 23, Wherefore, without opposition, Plaintiffs seek an Order removing Francis Cree, Katherine Pearl Sinclair Chilton, and Dennis Charles Perrault from their status as named representatives for the Plaintiff Group in this action, and granting leave to file a motion nominating appropriate replacements for Mr. Cree, Ms. Chilton, and Mr. Perrault on or before April 13, IV. JOINT MOTION TO AMEND FEBRUARY 24, 2009 ORDER 13. During the February 24, 2009 TSC, the Court proposed a March 31, 2009 deadline initially for the production of lists of 1980 Award Turtle Mountain tribe member and non-member lineal descendants per capita beneficiaries, and subsequently for the production of the list that exists from the 1988/1994 2/ with respect to the 1980 distribution and from 1984 with respect to the 1964 distribution as well, stating that such lists should be in the Plaintiffs hands at the earliest opportunity. Feb. 24, 2009 TSC Transcript at p. 17, lines 1-11, p. 25, lines 4-14; see also p. 28, lines 7-17, p. 29, line 21. 2/ The TSC Transcript references the 1988/1984 distribution, but it appears that the 1984 reference is a transcription error. See id. The correct 1994 date is referenced in other portions of the Transcript

7 14. Defendant s counsel did not object to the proposed March 31, 2009 deadline during the TSC. 15. However, Defendant since has inquired into the efforts necessary to search for and locate existing PJF per capita beneficiary lists for all PJF per capita beneficiary groups and has determined that for the reasons stated below and as stated in the accompanying declarations from the Department of the Interior (Interior) representatives, Interior will require substantial additional time to locate and review potentially responsive records for relevancy and privilege, and copy or image the materials identified as responsive. 3/ J. Zippen Decl. at PJF per capita beneficiaries include members of four Tribes who are serviced by BIA offices in North Dakota, Montana, and Minnesota. K. Ramirez Decl. at Interior s search for potentially relevant records will therefore include BIA agency offices in North Dakota and Montana, the Great Plains Regional Office in Aberdeen, South Dakota, the Midwest Regional Office in Fort Snelling, Minnesota, the Office of the Special Trustee (OST) in Albuquerque, New Mexico, the Office of Historical Trust Accounting in Washington, D.C. and the American Indians Record Repository (AIRR) in Lenexa, Kansas. See K. Ramirez Decl. at 4-5; J. Zippen Decl. at 3-7; R. Fielitz Decl. at Additional steps will be required to search Indian trust records stored at the AIRR, including formulating search queries for the Box Inventory Search System (BISS); running and refining such queries, searching records found in boxes that the BISS search identifies as containing potentially responsive records and conferring with BIA or OST staff regarding the records identified 3/ Plaintiffs have no independent knowledge of the information stated in paragraphs but, without taking any position on these assertions, nevertheless join in the relief requested herein with respect to the February 24, 2009 Order

8 as potentially responsive. K. Ramirez Decl. at Interior has begun the process of searching for potentially responsive documents. See D. Marion Decl. at 3-7; D. Daugherty Decl. at 4-6; J. Montes Decl. at 3; W. Heisler at 3; R. Fielitz Decl. at Interior staff have located certain trust records that may provide the names and addresses of PJF per capita beneficiaries, but further extensive work is required to search and locate additional records, review the records located, confirm relevancy, eliminate unnecessary duplication, review for privileged materials, and copy, scan, digitize or otherwise produce the records or information to Plaintiffs. See D. Marion Decl. at 8; J. Montes at at 5; D. Daugherty Decl. at Potentially responsive trust records located thus far include check listings, check registers, hold code lists, per capita membership lists, computer printouts and information recorded in books. D. Daugherty Decl. at 4-6; D. Marion Decl. at 3-7; J. Montes Decl. at Some potentially responsive records identified thus far, such as certain check registers, contain beneficiary names, but not addresses. D. Marion Decl. at Certain potentially responsive records identified thus far cannot be reproduced using continuous-feed copiers or scanners and will require special care and handling, because they are printed in books or bound volumes, printed on legal or ledger size form-feed computer paper, or are in printed on fragile paper. D. Daugherty Decl. at 4-6; D. Marion Decl. at Interior has started the process of determining whether and the extent to which existing lists of PJF per capita beneficiaries located thus far may contain updated contact information but significant further work is required to compete that evaluation. D. Marion Decl. at 9-11; 25. Thus far, the only updated list of PJF per capita beneficiaries that Interior has located is a list maintained on a computer database by BIA Turtle Mountain agency staff that includes Little - 8 -

9 Shell and non-member lineal descendant beneficiaries of the 1980 Award. That list has been updated only to the extent that non-member lineal descendant beneficiaries have voluntarily provided the Turtle Mountain agency with address and name changes or other updates. Further, the list does not identify which beneficiaries information includes updates and which do not. D Marion Decl. at The Turtle Mountain Agency also maintains and periodically updates a list of approximately 30,000 enrolled Turtle Mountain Tribal members, but does not maintain a separate updated list of PJF Turtle Mountain beneficiaries. Producing such a list would require the Turtle Mountain Agency to manually cross-check and cross-reference thousands of Turtle Mountain PJF beneficiary names against its list of Turtle Mountain Tribal members; the Agency has limited staff and funding to devote to such a time-consuming labor-intensive effort. D. Marion Decl. at To the extent that the PJF beneficiary records and lists currently in Interior s possession have not been updated since the per capita distributions, updating beneficiary contact information will require tracing or confirming the current whereabout of tens of thousands of PJF beneficiaries whose most recent address on the PJF lists may be decades-old, who may have since changed their names or who have passed away. R. Fielitz Decl. at 4-9; J. Zippen Decl. at Bringing beneficiary information current involves several steps. The first step is gathering existing records and information held by Interior, eliminating duplicate records, conferring with Plaintiffs to jointly determine which records the parties will find most useful, preparing records for production to Plaintiffs producing the records for Plaintiffs review, working with Plaintiffs to identify logical and efficient next steps to bring the existing beneficiary information current, review the lists for completeness, etc., determine the sequencing and scheduling of the next steps jointly identified by the parties. R. Fielitz Decl. at While it is premature to identify the steps that the parties will jointly identify as a logical - 9 -

10 process and sequencing for updating beneficiary information, the process will likely include digitizing or entering the beneficiary information into a common database at some point so that beneficiary names can be readily checked against or cross-referenced against other data or lists. R. Fielitz Decl. at 4; J. Zippen Decl. at While the task of updating beneficiary contact information will be time-consuming and labor intensive, there is risk associated with carrying out the task too early, because the information may again become outdated before settlement or judgment funds are disbursed to per capita beneficiaries. J. Zippen Decl. at The parties will confer and attempt to devise a jointly-acceptable strategy for updating beneficiary information as the at a further later stage of the ADR process as the parties settlement discussions move closer to fruition. Wherefore, the parties jointly move for an amended Order modifying the February 24, 2009 Order and providing that: 1) on or before March 31, 2009, Defendant will provide Plaintiffs with the names of at least 100 non-member lineal descendant per capita beneficiaries of the 1980 Award and with the names of at least 100 White Earth tribe member per capita beneficiaries of the 1980 Award, and these records or information provided will be taken from existing beneficiary lists in Defendant s possession; 2) on or before April 30, 2009, Defendant will provide Plaintiffs with summary descriptions (such as document titles or document types) of records or information located by Defendant up to that point that contain PJF beneficiary names or information potentially relevant to the parties efforts to compile a complete list of PJF beneficiaries; 3) on or before May 15, 2009, the parties will confer and attempt to agree upon a list of records or information that the parties deem most relevant or most useful in compiling a complete list of PJF beneficiaries; 4) on or before July 15, 2009, Defendant will produce copies or images of the records jointly identified by the parties; 5)

11 that portion of the Order requiring Defendant to produce any information in Defendant s possession regarding the whereabouts of any person named on any of the foregoing lists is stayed pending further discussions and development of jointly-agreed upon plans by the parties with beneficiary records. Respectfully submitted on this 12th day of March, /s/ Melody L. McCoy /s/ Carol L. Draper MELODY L. MCCOY CAROL L. DRAPER Attorney of Record for Plaintiffs Attorney of Record for Defendant Native American Rights Fund United States Department of Justice 1506 Broadway Environment & Natural Resources Division Boulder, CO Natural Resources Section Tel: (303) P.O. Box 663 Fax (303) Washington, D.C Tel: (202) Fax: (202) Of Counsel: Dawn Sturdevant Baum Native American Rights Fund 1712 N St., N.W. Washington, DC Tel: (202) Fax: (202) Of Counsel: Elisabeth C. Brandon Joshua A. Edelstein Department of the Interior Office of the Solicitor

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