Gaming

Wolfchild et al. v. United States

PART ONE IN A CONTINUING SERIES

An exclusive interview with attorney Erick Kaardal, P.A., on the background, potential outcome, and implications of this high-profile lawsuit seeking damages for breaches in U.S. trust responsibility in relation to the Mdwakanton Dakota Band of the Great Sioux Nation

Notice to plaintiffs: The deadline for application has been extended to June 23, 2006

There have been countless grievances – personal, political and legal – against the United States for wrongs done to Indian people since the formation of this Country. Many have been brought to the attention of the general public, a smaller number have been tried in court, and a few have been actually been successful in their effort to make the government accountable for the injustices. Wolfchild et al. v. United States is one of those rare examples. This court case, filed in the U.S. Federal Claims Court in Washington, DC in 2003 by the Minnesota law firm, Morhman and Kaardal, P.A., has been successful in arguing that a breach of trust responsibility has happened, and that certain compensation is due to those parties who have been damaged by this breach of trust. These people are, as named in the court case, all direct lineal descendants of the original members of a small band of Dakota Sioux called the “Loyal Mdewakanton.” These people signed a contract with the U.S. Government, were given tracts of land in Minnesota, and were promised the “exclusive and equal benefit” of said lands. The lawsuit contends that these benefits have not followed the descendants “exclusively and equally” as intended, and the U.S. Federal Court has concurred.

Not only does the outcome of this lawsuit promise payment of damages for past mismanagement of trust responsibilities, but it may have far reaching consequences for those Indian communities that have, up until the decision of this court case, been the sole beneficiaries of the “benefits” of the original lands. They are the Shakopee Mdewakanton Sioux Community and the Prairie Island Indian Communities of Minnesota. Those lineal descendants who participate in Wolfchild et al. may be provided the opportunity to become members of these communities and therefore may reap the current benefits of “said lands,” including significant casino revenues.

In the case of the Shakopee, owners of reportedly the second-most-profitable gaming operation in Indian country, the changes could be earth-shattering. Each of the 186 members of this community receive per-capita payments of over one million dollars per year. The current membership has been successful at severely restricting entrance of new members, including those with proof of adequate blood quantum and direct blood lineage. It is feasible that Wolfchild et al. v. United States could open up Shakopee’s membership to include all lineal descendants identified in this lawsuit, thereby re-distributing their percapita payments from under 200 members to over 4,000 members. The geographically less-advantaged Prairie Island Community has not been as successful in their gaming ventures, and has a different set of enrollment and per-capita payment guidelines.

This portion of the lawsuit, asking for compensation of “exclusive and equal benefit” into the future, has been by nature controversial. The Shakopee Community has been generous to the other, less financially successful Sioux tribes, donating millions of dollars each year to worthy causes and projects. They have been invited to participate in this lawsuit as plaintiffs, as has Prairie Island. Both Communities have declined the invitation.

There is a significant amount of work being done to identify the actual lineal descendants of the “Loyal Mdewakanton” for the purpose of compiling an accurate and complete Plaintiffs list for this case. If you believe that you are a direct lineal blood descendant, you have until June 23, 2006 to submit your application for consideration. All of the information relevant to this pursuit, including research, history, court documents and rulings, the original 1886 and 1889 census lists that form the original members of the “Loyal Mdwakanton,” and a list of current plaintiffs can be found on the Morhman and Kardaal, P.A. website: http://www.mklaw.com.

(Please do not contact The Native Voice with your inquiries. We will direct you to contact the law firm.)

King: First of all, how did this lawsuit get started and how did you come to be involved in this issue regarding the Mdewakanton Dakota?

Erick Kaardal, P.A.: Oddly enough I was born in Redwood Falls, [Minn.], and my family has been there for a long time. That’s right next to Morton and Lower Sioux. And my father has a State Farm Insurance Agency and always had good relations with the members of Lower Sioux. Then I went on to go to college and law school and I started my practice here in [Minneapolis/St. Paul] which included civil rights work. My father, after his retirement, was friends with a few elders from the Lower Sioux and they heard about some of the case work that we were doing in the legal arena including a case we had won in the U.S. Supreme Court involving civil rights. One of the elders, Royce Pendleton, asked my father if he could meet with me about issues of grievances or complaints he had regarding how the federal government was working with the lineal descendants [of the original Mdwakanton]. Then after that, Royce and I met for about an eighteen month period and we worked through the different grievances and issues. At times I was thinking there wasn’t any way I could help them and other times I was thinking, “Well there is some promise here.” Then I started doing some investigations factually and legally and then it really took off when Royce introduced me to others including Dr. Barbara Buttes (the lead anthropologist and historian for the Mdwakanton) and that’s when we decided to do it. At the time, I didn’t expect to win, I just thought that these people deserved having their question, their claim, put to a proper forum because I think that they had not been treated properly. So, that’s kind of where it was; with a civil rights background, I was looking to help people and sometimes it takes a lot of conversation to figure out if a lawyer can help people. We had that conversation and then we filed the lawsuit.

King: This started in 2003, so what is the status of the lawsuit now?

Kaardal: We’re in the U.S. Court of Federal Claims. They have jurisdiction over any Native American trust mismanagement claims. When we filed the lawsuit, the United States moved to dismiss on the grounds that our clients weren’t trust beneficiaries; we made a cross-motion for summary judgment on the grounds that, if the United States is wrong on that then they’d breach the trust because they made the elementary mistake of misidentifying trust beneficiaries. There are two elementary mistakes that a trustee can make; one would be losing or giving away the trust property to the wrong person, or secondly, misidentifying the beneficiary. And so, here, there has been a misidentification of the beneficiary – and that’s a big one, a very fundamental error – and so the judge resolved on our cross-motion that we won on liability at that point.

That was October 2004 and then the government made a motion for reconsideration and they lost that in November, 2005. Now we’re working hard on the genealogy, because it is important to us and to everyone to get resolution on this and we’ve resolved that the best way to get an expeditious result is to do the genealogy ourselves and not to rely on the government. I know that many other instances of these cases get resolved in the sense that liability is established but the settlement funds are never distributed because the genealogy is not finished. Or another way, the accounting is not finished in the Cobell case and so forth. So in our case, we saw that it was very important, if we want to get this case done with justice, that we complete the genealogy. And to the credit of every plaintiff, and we’re going to be at about 5,000, each one of them understands that they want to wait because by waiting and making sure that everyone’s pulled in we can move forward.

King: In that regard, there has been a lot of rumor about who is eligible, how they’re eligible and how the number of people affects the final outcome. You just got an extension for the lawsuit, what is that extension for?

Kaardal: It’s for plaintiffs joining the lawsuit. The deadline has been extended to June 23. They can either file a claim directly or they can use an attorney to file a claim, that would be a motion to intervene and a complaint and intervention.

King: So, what are the requirements for joining this suit?

Kaardal: The requirement for joining the suit is to be a lineal descendant of a person on the May 20, 1886 census inclusive of the 1889 supplement; there are about 264 people on the two lists. So, you are qualified to be a plaintiff, in our opinion, if you are a lineal descendant of any of those 264 people.

King: How are you expecting people to apply?

Kaardal: The challenge here is – particularly here in South Dakota, and in Nebraska, North Dakota and Montana and in Canada – that the connections can be somewhat remote and so there’s an issue here of, what is legal work and what information should someone know if they are going to get into this case.

The way I would describe it…it’s not really legal work to know who your grandparent is or your great-grandparent; so you need to be able to self-identify your ancestors and then once you’ve done that, then check on the census to see if they’re there. If they are, then you know that you are a lineal descendant. What the lawyers are really good at is helping prove something like that.

I think that critical first step is for people to identify their ancestors and then to see if one of their ancestors is on the ’86 or ’89 list and then once they are, then we’re here to help guide the search for finding the documents. Now, often, what happens is people are searching for documents but it’s not really for the purpose of proving the link, it’s to figure out who their ancestors are.

Now in Minnesota, there are easy cases. For example, a few people at Lower Sioux have parents on the list. So that’s not very hard; you just have to get your own birth certificate, your parent is on the list and you’re done. But because of the history here, particularly the 1,300 people who were shipped by U.S. Federal river boat from Fort Snelling to Crow Creek in 1863… some of those people leaving parents and grandparents behind end up on the list. These are difficult, challenging journeys for everyone to figure out. It’s one thing to know your great-grandparents, but to figure out who your great-great-grandparents are, that’s something.

For those people who are, and I’ll use the phrase “full” of Dakota blood, it’s a difficult task to find out who all your Dakota great-great grandparents are and each of them needs to be searched. We’ve had a case where a person that was Dakota had to search all 32 great-great grandparents, and then on the 32nd one being searched found the connection. So those who are just kind of getting started, we’re very sympathetic because we’ve been doing it for three years, helping people find their ancestors. Even more importantly, were helping them prove their lineage through Dr. Buttes and her expert opinion.

King: I’ve also heard that folks who have relatives who have already successfully made a claim as a lineal descendant, all they have to do then is link their blood lineage to the claim that has already been successfully proven.

Kaardal: You can imagine because not all families are perfect, not any family is perfect, but a lot of families are less perfect than others, so we have a lot of families saying, “We’re going to submit these documents but we don’t want the other family members to use them,” and vice versa. We have a rule: if you’re not going to let us share documents to prove other people’s lineal descendence, then we don’t want your documents. We’ll find their connections another way. We’re kind of tough on that one, but we’re all in it together, so we might as well get used to it.

King: There have been some people making claims about being able to “get people in on this claim,” and even going to the point of charging money for their services. Who is an authority on this lawsuit and who isn’t?

Kaardal: Dr. Buttes is an authority. She’s worked in this area professionally for 20-some years and she has a Ph.D. in anthropology. Not only has she shown the ability to collect relevant and important information, but she’s also shown an ability to analyze the information and almost as importantly she’s shown an ability to then take the information and put it in a useful way. I am in awe of Dr. Buttes’ work, because she’s done it and it’s just exceptional work.

There are a number of factors laying in favor of this and that is, basically, that people do self-identify Dakota and they have been for a long time, and particularly the story of the lineal descendants has been preserved at Lower Sioux. People have shown leadership by saying, “If we’re going to fix this, let’s fix it right and be done with all the litigation, the name-calling, all these disputes about genealogy. Do it once, have it done right, and then move on.” Because for 26 years, since 1980 when the BIA started saying that lineal descendants don’t have rights, they knew it was wrong and they have been working to get this resolved.

King: The BIA has been using probate records since they began accounting and trust management, so how can they then say lineal descendants doesn’t count, because that’s what probate records are?

Kaardal: That’s right. With respect to the genealogical rules that we’re following, and we’re kind of following the BIA standards, we’ve done our own independent research. Probate records are very useful in helping a person identify who their ancestors are, but when it comes to proving the genealogical connection, we have to use documents that more accurately reflect the parent-child connection and the records that most accurately reflect the parent-child connection are documents that are contemporaneous with the birth and those documents tend to be birth certificates, infant baptismal records, or hospital records if you can get them.

King: Because you can put someone on your probate, who is not necessarily [biologically connected] you can say, “I adopted this child?”

Kaardal: Exactly, or particularly death certificates, because what’s being recorded is the death, it’s not who the parents are. So, with probate records, if it’s adjudicated, maybe you have a good record to support the court’s findings. We understand the unfairness and arbitrariness of people not being trust beneficiaries when they are adopted in, but we’re trying to correct what we see as a huge injustice at Shakopee. And, that is, a small group of people has a co-opted the trust corpus of the federal government and we’re trying to fix that. So it’s not going to be a perfect world when we’re done, but we’re hoping it will be a more perfect world.

King: What can you tell me about those folks who are out there circulating false information on the reservations?

Kaardal: We identified, through complaints that were filed through our office, that a Becky Red Earth has been transmitting information, apparently with the sponsorship of the Yankton Sioux Tribe, and that information has not been useful. In fact, for two years, we’ve kind of been battling with Becky Red Earth providing information that is inaccurate. When she’s out there giving people bad information, the result is they’re copying documents, they’re making up lists and they’re paying FedEx fees or overnight fees and sending us information, but it’s bad information. So, if you can imagine, over half the stuff we received on April 20th (the previous application deadline) was mostly from the Yankton area or that part of South Dakota (where Red Earth is circulating), and it was not good information. So when people were filling out the cover sheet saying who their ancestor was on the 1886 census, it wasn’t a person actually on the 1886 census. (Please note: There are NO alternate or additional lists)

That is problematic for two reasons: one, these people may think they’re qualified and they ar not, and two, they may be qualified for the suit but they have not done enough work to prove their lineage and they are saying, “Oh, we’re qualified. We’re done.”

King: So they think their work is done and actually it’s not?

Kaardal: That’s right. And that’s our principle concern and then on the other hand there is a damage that is done if someone is told that they’re qualified and then they are not going to be qualified, that they are not a lineal descendant, then there are unrealistic expectations.

Then on the other side, and this just makes me gasp, in one instance we have an affidavit where Becky Red Earth has told someone that they are not qualified, where it appears they will be qualified or may be qualified, and that’s awful. So, we need to work through that and reeducate these people that they need to keep working until they either prove or disprove lineal descendence.

King: There’s also a rumor that the more people who participate in this lawsuit, the less money each peron will receive in the eventual settlement. Is this true?

Kaardal: I think the fact is that the judge has indicated (at the February, 2005 status conference) that the case won’t be completed until adequate notice has been given to the Minnesota Mdewakanton world and everyone has the chance to participate. So what we’ve added to that is this element that we’re so concerned about due process that we think it includes educating and informing everyone.

King: Let’s talk about family members sharing documents.

Kaardal: We need to persuade the genealogical researchers in the families to work together to find the necessary documents. The most successful people in South Dakota in qualifying through very difficult journeys – having to go six or seven generations back – have worked together. We have had examples of family members from five or six different reservations working together to find the critical documents. That’s the best, that’s ideal. Because, imagine 32 great-grandparents, they could have been scattered too; so different family members would know different information about different great-great grandparents.

King: How do you win this case? You have already been told by the court that the trust responsibility has been breached, and therefore there is a responsibility for the U.S. government to repair that, correct?

Kaardal: That’s right. I think the best way to describe the case is that, principally it’s about getting damages for the past and so we’re trying to establish these breaches so that we can get damages for the past misconduct of the federal government. As a secondary matter, we’re trying to get prospective relief and fix it for the future. The way the prospective relief is going to have to work is… if I’m speaking to a group of Mdewakanton, I always tell them “I’m looking at you, because you have many voices here as lineal descendants of Lower Sioux as the Lower Sioux Community.” The lead plaintiff on the lawsuit, Sheldon Peters Wolfchild, is now the Chairman of Lower Sioux and he’s firmly committed to the case. The other voice that is very important is the organization, or non-profit corporation, called the Minnesota Mdewakanton Dakota Oyate and they’ve been holding annual conventions for the last two years and they’re going to meet again on May 20. That’s a voice for the lineal descendants and what the lineal descendants need to decide is what they want for the future. So, this is in the hands of the descendants through these two organizations.

King: So, there are two parts to this lawsuit; one is that the plaintiffs are going to get money from the United States Treasury for past harms done and then, two, they’re all looking at the inclusion as direct beneficiaries of the original trust land revenues into the future. There is talk that this includes the possibility of enrolling in the Shakopee Community and becoming beneficiaries of the current casino revenues. Is this true?

Kaardal: Yes. But, there are papers that very clearly stated that the Shakopee Community was based on a constitution which was the product of a breach of trust by the United States, so there’s an issue of whether this would be an opportunity for the lineal descendants to reorganize the government. Because we have one trust beneficiary class, some lineal descendants think that one government may be appropriate. So you have one genealogical list, and then you could have some local governments; then you could have a Minnesota Mdewakanton Nation. To think about it, we’re at 5,000 lineal descendants now and we know there’s a few hundred more in communities that aren’t participating in the lawsuit. It would be a fantastic thing to have the Dakota finally reunited after they were forced into the diaspora back in 1862, 1863 and forward. Then again, some of the Dakota aren’t lineal descendants of the May 20, 1886 list who would not be Minnesota Mdewakanton Dakota Oyate based on the 1886 statutes because the membership was separate. But, then again, it isn’t about correcting all the world’s problems, it’s just about correcting the injustice at Shakopee.

King: Am I correct in saying that the settlement money from this case, as it stands now, is coming from the United States Treasury?

Kaardal: Absolutely.

King: Because there is a misunderstanding now because some potential plaintiffs think that they are getting casino money. So what I have been trying to qualify is exactly where that money is coming from and it’s coming from the United States Treasury for a breach of trust responsibility.

Kaardal: Exactly, dollar for dollar.

King: The rumors are rampant. Can you speak about the amounts that people may be getting?

Kaardal: The only thing I know, because we haven’t been allowed discovery, is there’s a 2000 Minnesota Court of Appeals decision called Vig v. Vig … and the Shakopee per capita payments were adjudicated and in the adjudication, the 1998 Shakopee per capita payments per individual were $950,000. So the per capita payments in 1998 were nearly a million per member, and there have always been about 185 members. Right now I think there are 186. At least in 1998, the per capita payments, apparently totaled $185 million.

(Editor’s note: the amount that the U.S. Government will be expected to pay for breach of trust responsibility may be based upon the revenues generated by the casino and the per-capita payments made to the community members. As these are the recent “benefits” of the trust land.)

I never had expected to win. When we won on liability, my reaction was “Wow, I have got a lot of responsibilities.” So, I have been much more reactive about this part. Remember, I came to this not as ambulance chaser, I came to it as a civil rights attorney and I represented elderly people forced out of a nursing home and I had represented parents who had their children wrongfully taken by child protection. And I represented interest involving certain minority Protestant sects who wanted to participate in the public school system. I’ve taken free speech cases…yesterday I won a free speech case in the Minnesota Court of Appeals, so I am very interested in constitutional issues, statutory issues, difficult legal issues. So I think I’m a bad person to talk about the money because to the people who had approached me, it wasn’t about the money, it was always about the land and of painting the political status, the political position of the Minnesota Mdewakanton.

King: But I’m trying to quash some rumors out there. This is part of what’s fueling the family feuds regarding “who is getting on the list and who is or isn’t sharing genealogical information.” So what I am trying to do is look at this realistically and realize that we’re not talking about each person getting millions of dollars individually.

Kaardal: Again, I can say that I don’t know that because we haven’t been allowed to do any discovery. But my advice to clients is that the case isn’t going to be completed until we get all of lineal descendants in, so we have got to continue to work on that. And then after we finish that, I think we will be allowed discovery and we’ll find out what the potential damages are. My recommendation to people who are prospective lineal descendants is to hurry up and get their work done and then we’ll find out. To me, the issue of being a landowner, a trust beneficiary, at Shakopee or Lower Sioux should be sufficient motivation to get your documents together and then with respect to cash payment for past, we’ll see how that goes.

Now with respect to prospective relief, I’m absolutely convinced that the consequence of this case that the lineal descendants will be receiving equal per capita payments and whether that’s a little money or a lot of money but I am going to look at the lineal descendants and say, “It’s up to you. If you decide for a reason that you’re not going to manage the casino well, or manage the casino at all, it’s up to you. Or you want to have one casino or other businesses it might end up being quite profitable for you.”

…to be continued…check the next issue of The Native Voice for Part Two of the interview with Erick Kardaal, P.A.

[Sidebar]

Anpetu-Tokece, (Other Day), who rescued sixty-two persons from the Indian Massacre of 1862, in Minnesota. One of the “Loyal Mdewakanton,” so named because they believed in living in peace with the United States and the settlers. The lineal descendants of this band are now the plaintiffs in the class-action lawsuit, Wolfchild et al. v. The United States for breach of trust responsibility. For more information, go to http://www.mklaw.com.

[Sidebar]

Dakota Sioux fight white settlers during the Minnesota uprising, 1862.

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Timing is key for ’06 NIGA Legislative Session

The mood was anxious and thoughtful at this year’s National Indian Gaining Association Legislative Session held January 31 to February 1 on Capitol Hill. As expected, the conversation was dominated by the Abramoff scandal and United States Senate hearings on off-reservation gaming.

A development that was not anticipated, however, was the call by several Republican members of Congress to close the so-called campaign giving “loophole” of Indian tribes. Each category of person or organization, such as individual or corporation, has a set ceiling on campaign contributions. Tribes, because of their unique relationship to the federal government as sovereign nations, have historically had no limits to their total political giving.

One of the arguments being cited as a reason to limit tribes’ ability to make political donations is that States, which are also sovereign, “Do not lobby Congress.” Those parties are failing to mention that each states’ respective members of the House of Representatives serve that purpose on their behalf.

Tribes, which are also sovereign, are being compelled to lobby from the outside for their interests since they do not have voting membership of Congress to lobby for their interests from within. State governments and their majority non-Indian constituents are often times at odds with the tribes and tribal constituents that reside within the state’s boundaries.

During the 1993-94 election cycle, tribal political contributions totalled only $700,000. Much has changed in the tribal political arena since then, and the totals for reported political giving for the years 2003-04 was $8.6 million. (Source: Center for Responsive Politics) Gaming revenues have provided tribes with the financial means to exercise more political clout.

Tribes must petition Congress for appropriations on an annual basis and must lobby their positions on legislation that affects the daily lives of Indian people nationwide, so “More political clout is supposed to be the goal,” said Ernie Stevens, Jr., Chairman of the National Indian Gaming Association. “But instead of positive press about increased tribal political savvy, the news is dominated by Abramoff.”

Jack Abramoff provides a negative example of how some tribes have been taken advantage of in their desire to find solutions to decades of being outsiders to the American political system. Capitol Hill insiders are calling Congressional efforts to impose new limits on Indian tribal political giving a “fast moving train.” This movement to impose contribution limits on tribes has arguably been a Republican response to the fallout of the Abramoff debacle.

Although tribes give to the coffers of both political parties, more money has been given to Democrats (61%) over Republicans (39%). (Source: Center for Responsive Politics) On the first day of the NIGA Session, USA Today featured the cover story: “Tribes’ political giving targeted, GOP bill would close donations loophole.” Abramoff has thrust tribes into the media spotlight, and it is anticipated that the stories in major and regional media will continue into the foreseeable future.

The question then becomes, how will tribes respond? Although only a handful of tribes were actually involved with Abramoff, all tribes will be affected. The current scandal has the potential to affect the very balance of power in Congress during the 2006 elections, tipping majority rule of the House and Senate to the Democrats. Indian tribal issues, which are normally relegated to the halls of Congress, have become fodder for media debate. As such, tribes have become a part of everyday conversation among average Americans.

This trend is expected to continue until at least the end of the 2006 election cycle. Republicans are clearly paying for their close proximity to Abramoff and associates, as this scandal has just been the last item on a laundry list of ethics questions that have been raised concerning favor and power brokering in Washington, DC. All of the speakers at the NIGA Legislative Day, February 1, addressed the concerns common to all tribes present. Most spoke directly to the Abramoff scandal and the expected lobbying reforms.

Sen. Tim Johnson (D-SD) said, “If we need more transparency in the process, for example, so be it. As long as we respect the tribes’ sovereignty in the process.” He stressed that “Indian gaming is the key engine for economic growth for Indian country and the surrounding areas.” Retired Senator Ben Nighthorse Campbell said, “I don’t remember a time more challenging than it is right now for Indian people…This guy (Abramoff) did a lot of damage.” He added, “Senators are well aware that tribes have been victimized,” echoing what many tribal leaders were saying as they returned from one-on-one meetings with members of Congress.

Many tribes were concerned about what they would find when they got to DC, but were reporting that their meetings “had gone very well,” and that it was clear that members of Congress were not blaming the tribes for the ethics and lobbying scandal. Nighthorse Campbell talked about traditional ways versus modern realities. He said, “There is this old tradition where you put your blanket over your head to show contempt for the decisions being made…However, we can’t do that now…Whether you agree with the decision or not,” he stressed, “You’ve got to hang in there. You’ve got to have a voice.” He continued, “We need to come back here more, not less…People are energized. They know that this is a crucial time for Indian people.”