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Tuesday, May 29, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD vs UNITED STATES (Docket No. 2012-5035)
Update
The Defendant-Appellant United States filed their opening brief.
Comment: The document contains 177 pages and will require a couple days of reading before commenting.
Peace. Patience.
Saturday, May 26, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD vs UNITED STATES (Docket No. 2012-5035)
Update
The deadline for Defendant-Appellant United States to file their opening brief expired yesterday.
The document is not yet available for download.
Comment: Being that there is no document available this morning and that there is no third "Unopposed Motion
by Defendant-Appellant United States for another delay, I assume they filed the opening brief via U. S. Postal Service.
If that is the case, the court will need to scan the document to make it available electronically.
Federal workers will not be back to work until Tuesday so I am not expecting to see the brief available on PACER until the first of June.
Peace. Patience.
Thursday, April 26, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
Update
Today, the CAFC has granted the United States' motion for another 21 day delay. Their brief is now due on or before May 25th, 2012.
Opinion:
The attorney's for the United States apparently are having trouble coming up with good reason for overturning Judge Lettow's last ruling.
Sunday, April 22, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
Update
Last Tuesday, April 17th, an Unopposed Motion of Defendant-Appellant United States for 21-day Extension of Time within Which to File Opening Brief was filed in the Public Access to Court Electronic Records (PACER) system by the Clerk for the United States Court of Appeals (Federal Circuit).
No action (granted or denied) has been filed by Judge Lettow regarding this latest motion.
Opinion:
The CAFC will allow another delay tactic by the defendant-appellant United States.
Probably due to the Entry of Appearance document filed earlier by the United States notifying the Court of Appeals that John L. Smeltzer has replaced Aaron Avila as the principal attorney. Avila will remain on the case.
Saturday, April 14, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
Update
The defendant-appellant's brief (USA brief) is still due May 4, 2012.
Oral arguments could begin as early as June.
Opinion:
I have not been optimistic lately regarding a positive outcome to the Wolfchild v. USA.
However, finding the link to the following news article on the 1886 board does makes me think - Maybe, just maybe!
Obama Moves to Settle 41 Tribal Trust Cases for $1 Billion
By Rob Capriccioso April 11, 2012
Indian Country Today Media Network.com
WASHINGTON – The Obama administration announced April 11 its intent to resolve 41 long-standing disputes with Indian tribal governments over the federal mismanagement of trust funds and resources.
Ignacia Moreno, assistant attorney general at the U.S. Department of Justice, said the settlements will amount to a combined total of $1.023 billion to the 41 tribes for past federal mismanagement.
Beyond money, the settlements also set forth a framework for promoting tribal sovereignty and improving nation-to-nation federal-tribal relations, while trying to avoid future litigation through improved communication, Moreno said.
Wyn Hornbuckle, a spokesman for the Justice Department, told Indian Country Today Media Network that the Obama administration is choosing not to announce a breakdown of monies to each tribe, “leaving it at discretion of the tribes.”
He said that the decision was made “in deference to the tribes” out of “respect for their confidentiality.”
Some of the settlements – about 35 – are available with the D.C. district court, Hornbuckle said, but the others are filed as “dismissed,” so they are not public record.
Hornbuckle said that the money for the settlements does not have to be approved by Congress; rather, it comes out of the United States’ Judgment Fund.
The announcement was made at a White House ceremony, with Attorney General Eric Holder, Secretary of the Interior Ken Salazar, Senior Advisor to the President Valerie Jarrett, and other senior members of the Obama administration joining tribal leaders in attendance.
“May we walk together toward a brighter future, built on trust, and not acrimony,” said Hilary Tompkins, Solicitor General of the Interior Department, at the event.“
And when I say the word trust, I don’t mean the legal definition of that word, I mean the dictionary’s definition of that word—assured reliance on the integrity, veracity, justice, friendship, or other sound principle of a person or thing….”
Tompkins is a Navajo Nation citizen, and she personally helped sort out the legal parameters of the deals.
“I know it hasn’t been easy to get to this point,” Holder later added, thanking tribal leaders and agency officials for their negotiation efforts.
He said the settlements represented “a model for fairness and success.”
The negotiations took 22 months, according to the White House.
Salazar called the settlements a “deliverance” on the promise Obama made to Indians when campaigning for president in 2008.
He added that some in his orbit had advocated continuing fighting lawsuits against the tribes, but advocates within the administration decided that settlement was the better and right route.
Charlie Galbraith, an associate director in the White House Office of Intergovernmental Affairs, called the development “a significant step forward in the resolution of tribal trust cases pending against the United States,” in a blog post on the White House website.
“Many of the cases include claims by the tribes that go back over 100 years,” Galbraith said, adding that the deal represented “good-faith cooperation and hard work of the administration and 41 American Indian tribes in working out fair and honorable resolutions of the tribes’ claims.”
The announcement is one of several settlements the Obama administration has announced with individual Indians and tribes since 2009.
In 2010, the administration settled the $760 million Keepseagle case brought by Native American farmers and ranchers against the U.S. Department of Agriculture.
They alleged discrimination by the agency in its administration of loan programs.
President Barack Obama also signed into law the Claims Resolution Act in December 2010, which included the $3.4 billion Cobell settlement agreement that aims to resolve a lawsuit over the management and accounting of more than 300,000 individual American Indian trust accounts.
That settlement is still on appeal in federal court. It was first announced by the administration in December 2009.
The Claims Resolution Act also included four water rights settlements, meant to benefit seven tribes in Arizona, Montana, and New Mexico.
In October 2011, the Obama administration reached a $380 million settlement with the Osage Nation over the tribe’s long-standing lawsuit involving the federal government’s mismanagement of trust funds and trust resources.
That settlement featured measures designed to improve the trust relationship between the tribe and the United States.
Chief James Allan, Coeur d’Alene tribal chairman, said at the event that he believes Obama has done more for tribes than the last five presidents combined.
Gary Hayes, chairman of the Ute Mountain Tribe, thanked the U.S. agencies for moving to settle the lawsuits that have already proven costly to tribes as they have carried out their legal challenges for years.
He also thanked the Native American Rights Fund for its role in assisting tribes on the deals.
“The seeds that we plant today will profit us in the future,” Hayes said.
“These agreements mark a new beginning, one of just reconciliation, better communication…and strengthened management….”
The tribes affected by the settlements, as listed by the White House, are:
//// SNIP ////
For brevity, I have not listed the 41 tribes but 29th on the list is the Santee Sioux Tribe who would not be among the 'loyal Mdewakanton" allowed to remain in Minnesota in 1863.
We should understand that this settlement addresses "Indians living on Reservations" not "Lineal Descendants living on (& not living on) Minnesota Communities."
Although the three Minnesota communities profess to be "federally-recognized tribes" they are not included in the published Bureau of Indian Affairs Listing of Federally-Recognized Tribes.
Two government officials mentioned in the above article are two main officials involved in delaying the outcome of the Wolfchild v. USA lawsuit.
The name of Ignacia Moreno, assistant attorney general at the U.S. Department of Justice appears on all the governments motions against the Wolfchild case.
Secretary of the Interior Ken Salazar was directed by Judge Lettow in August 2011 to have a list of legitimate lineal descendants prepared by August 2012 and a plan for distribution of damages to those persons appearing on the list.
So what "government stance" is going to be in AAG Moreno's May 4th brief;
the S.O.S. or
one with an "assured reliance on the integrity, veracity, justice, friendship, or other sound principle of a person or thing…."
Saturday, March 31, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
Update
Nothing new; the defendant-appellant's brief is still due May 4, 2012.
My Opinion:
I do not expect to see any activity on this case during the coming month of April.
We will have to wait to hear how the Federal Circuit rules in May on the pending appeals by the defendant USA, plaintiffs and plaintiff-intervenor's.
There should however, be activity going on at the BIA in regards to preparing a roll of the "loyal Mdewakanton" which was ordered by Judge Lettow in August last year.
As I understand this simple matter (which is only complicated by repeated delays by the DOI/BIA), it is that, so far, Judge Lettow has not stayed his last
opinion and order of August 5, 2012, specifically; "In accord with 28 U.S.C. § 1402, the Secretary [DOI] shall complete preparation of such roll and plan
satisfying the criteria specified in 25 U.S.C. § 1403 within one year from the date of this decision and judgment.
Upon completion, the Secretary shall submit a report to the court setting out the proposed roll and plan."
If the Federal Circuit appellate court rules that Judge Lettow was correct in his August 5th opinion and order, we should finally see an up-to-date roll of "loyal Mdewakanton."
But as we have all come to expect, the BIA will not be ready come August 5th and will ask for another delay.
And Judge Lettow, as we have all come to expect, will again allow them all the time they desire.
Tuesday, February 28, 2012
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
Update
The 2/20/2012 unopposed motion by defendant-appellant for a 60-day extension of time to file opening brief was granted
by the CAFC on 2/23/2012.
The defendant-appellant's brief is now due May 4, 2012.
Notes: Next update - whenever changes appear on PACER.
Saturday, February 11 2012
Case Details - Update
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
HISTORY ADDITIONS/CHANGES:
[None - Appellant USA "blue brief" still due March 5th, 2012]
MOTIONS/OTHER ENTRY ADDITIONS/CHANGES:
2/2/2012 : Entry of Appearance for Aaron P. Avila as principal counsel on behalf of the appellant, United States.[no downloadable document]
2/3/2012 : Docketing Statement for the appellant, United States.[no downloadable document]
2/10/2012 : Entry of Appearance for Erick G. Kaardal as principal counsel on behalf of the cross appellants, Aaron Swenson, et al.[no downloadable document]
Notes: Next update - whenever changes appear on PACER.
Sunday, February 5, 2012
Case Details
U.S. Court of Appeals for the Federal Circuit
WOLFCHILD V US 2012-5035
The following activity history was downloaded from PACER:
HISTORY
3/5/2012 Due BLUE BRIEF
/ / Appellant Principal Brief Filing Date
/ / Appellee or Cross Appellant Principal Brief Filing Date
/ / Appellant Reply Brief Filing Date
/ / Cross Appellant Reply Brief Filing Date
/ / Appendix Filing Date
/ / Disposition: ; by
/ / Mandated on
/ / (Please Note: The briefs above are only the most current.)
MOTIONS AND OTHER ENTRIES
1/4/2012 : Official Caption.
SERVICE : by Court on 1/4/2012
DOC : : Wolfchild 2012-5035 (1.10.12 CAPTION).pdf
[NOT ADDED AS LINK - see next entry]
1/9/2012 : Letter from attorney, Erik Kaadal, informing the court that a listing is attached of the parties he represents. (noted-requested by clerk's office)
1/10/2012 : Revised official caption to reflect new cross appeals being filed.
SERVICE : by Court on 1/10/2012
DOC : : Wolfchild 2012-5035 (1.10.12 CAPTION)1.pdf
1/13/2012 : Entry of Appearance for Gary J. Montana as principal counsel on behalf of the cross appellant, Julia DuMarce, et al.
SERVICE : by Mail on 1/6/2012
1/17/2012 : Certificate of Interest for cross appellant Harley Zephier Group, et al.
SERVICE : by Mail on 1/13/2012
1/17/2012 : Entry of Appearance for Robin L. Zephier as principal counsel on behalf of the cross appellant, Harley Zephier Sr.
SERVICE : by Mail on 1/13/2012
1/17/2012 : Entry of Appearance for Randy Vern Thompson as principal counsel on behalf of the cross appellant, Kristine Abrahamson.
SERVICE : by Mail on 1/13/2012
1/23/2012 : Entry of Appearance for Creighton A. Thurman as principal counsel on behalf of the cross appellants, Charlene Wanna, et al.
SERVICE : by Mail on 1/17/2012
1/24/2012 : Letter of counsel for Cross-Appellants Wolfchild, et al. advising that he is unavailable for oral argument 4/4/12.
SERVICE : by Mail on 1/16/2012
1/25/2012 : Entry of Appearance for Garrett J. Horn as principal counsel on behalf of the plaintiffs, Daniel M. Trudell, et al.
SERVICE : by Mail on 1/17/2012
1/30/2012 : Notice of Rejection: The Entry of Appearance for Larry Leventhal, principal counsel on behalf of the cross appellant, Dawn Burley, et al., received on 01/25/2012, cannot be filed; attorney is not admitted to the bar of this court.
SERVICE : by Court on 1/30/2012
1/30/2012 : Notice of Rejection: The Certificate of Interest for the cross appellant, Dawn Burley, et al., received on 01/25/2012, cannot be filed; attorney who signed the document is not admitted to the bar of this court and has not filed an EOA.
SERVICE : by Court on 1/30/2012
Notes:
I have accumulated and condensed the following from several online sources:
When cases go up on appeal, the different briefs are color-coded. The appellant [USA in the Wolfchild case] uses a blue cover; the appellee [the satisfied party in the original case] uses a red cover. The practice makes it much easier to keep track of the relevant documents when you’re going through the filings in case.
Once the appellant files the “blue brief,” the appellee—the satisfied party in the original case—files a “red brief” in return. The appellee has forty-five days in which to file this brief.
Once the red brief is filed, the appellant replies in a “gray brief,” which it has fourteen days to file.
In Wolfchild, the plaintiffs' and the plaintiff-intervenor's both filed cross-motions of appeal so I believe that there is no appellee [the satified party]. All three parties wish the appellate court to reverse some part of Judge Lettow's last opinion and order.
After all the briefs and the appendix—a combined document containing copies of all exhibits that are referenced in the briefs—have been filed, the court schedules oral arguments for a date that is usually three to four months out.
In oral argument the parties generally are limited to fifteen minutes per side for oral argument. At oral argument, even more than in the briefs, it is not necessary to provide background to the Federal Circuit judges; they have read the briefs and are prepared for this discussion. Opening statements setting forth the issues should be two to three minutes—and even then, an attorney rarely gets through before the judges start firing questions. [This happened to Kaardal at the first appeal]
My Opinion: I believe there will be no "red briefs nor gray briefs" because all three parties are unsatified with something. It looks like all briefs may be due on March 5th.
Noting that Kaardal notified the court he is not available for oral agruments on April 5th, this second appeal appears to be on the fast track.
More when I find it . . . .
Friday, January 27, 2012
Wolfchild vs. USA offically docketed at CAFC
There are no available appeal documents to read yet, but the case now appears on the list of new cases docketed at the United States Court of Appeals for the Federal Circuit (CAFC).
You can find the list at http://www.cafc.uscourts.gov/
I'm not anticipating any activity for a couple of months, but who knows.
Maybe MKLaw will "share something" with us soon. As I get wind of anything, I'll post it here. Later . . . .
Saturday, January 14, 2012
Nothing New on PACER This Week
Nothing new. Would expect to see the appeals fairly soon to see what the defendant USA is belly-aching about this time.
NOTE: W.A.B.O.S.!
Friday Afternoon, January 6, 2012
Trying to Better Understand
The Three Recent Appeals
Each of the three parties use different language for the same item so I am attempting here to make each notice of appeal easier to understand.
By Document 1113, the Defendant USA appealed
Document 1094 - the Corrected Clerk's Judgment dated August 5, 2011
as corrected by
Document 1098 dated August 22, 2011.
- - - -
By Document 1114, the Plaintiff-Intervenor's appealed
Document 1093 - the Judge's Opinion and Order dated August 5, 2011
as corrected by
Document 1098 dated August 22, 2011.
However, the document that corrected Document 1093 is
Document 1097 dated August 22, 2011
Plaintiff-Intervenor's are also appealing
Document 1094 - the Clerk's Judgment dated August 5, 2011
and
Document 1110 - the Judge's Reconsideration Opinion and Order dated October 25, 2011
- - - -
By Document 1115, the Plaintiff's has appealed the following:
Document 836 - the Judge's Opinion and Order dated December 21, 2010
Document 1093 - the Judge's Opinion and Order dated August 5, 2011
as corrected by
Document 1098 dated August 22, 2011. However,
the document that corrected Document 1093 is
Document 1097 dated August 22, 2011
Plaintiff's are also appealing
Document 1094 - the Clerk's Judgment dated August 5, 2011
and
Document 1110 - the Judge's Reconsideration Opinion and Order dated October 25, 2011
- - - -
I've eMailed Attorney Kaardal for clarification on whether it is Document 1097 or 1098 that corrects Document 1093.
NOTE: I'm confused . . . . (again)
Friday Morning, January 6, 2012
Wolfchild Plaintiffs File
Notice of Joint Cross Appeal
Kaardal, on his website yesterday, stated: "Today, the Wolfchild Plaintiffs filed a cross-appeal in the U.S. Court of Federal Claims.
This cross-appeal was in response to the United States government appealing from the judgment favoring the Wolfchild Plaintiffs in the U.S. Court of Federal Claims."
Document 1115 - Notice of Joint Cross Appeal by Plaintiffs
NOTE: Game on . . . . (again)
Tuesday, January 3, 2012
Two Notices of Appeal Filed Dec 27
Are Now Entered in the PACER system
The Notice of Appeal filed by defendant USA (Document 1113) & the
Notice of Appeal filed by Group B Intervening Plaintiffs (Document 1114) on December 27th were entered in the PACER system
this afternoon and are now available for reading and/or downloading.
Document 1113 - Notice of Appeal by defendant USA
Document 1114 - Notice of Appeal by Group B plaintiff-intervenors'
NOTE: Later . . . . .
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