Free Joint Status Report - District Court of Federal Claims - federal

Case 1:92-cv-00675-ECH

Document 265

Filed 09/29/2006

Page 1 of 4

UNITED STATES COURT OF FEDERAL CLAIMS CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S RESERVATION, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 92-675 L Judge Emily C. Hewitt

JOINT STATUS REPORT The parties submit this Joint Status Report pursuant to the Court's Order dated July 31, 2002.1/ I. ONGOING LITIGATION 1. On January 26, 2006, the Court issued its Opinion, 69 Fed. Cl. 639 (Fed. Cl. 2006), deciding multiple motions and cross motions briefed from August, 2004, through October, 2005, and argued by the parties on October 25, 2005. 2. On January 31, 2006, the Court issued three Orders: 1) allowing Plaintiffs' Unopposed Motion to Lodge in this action the Opinion in Wolfchild v. United States, No. 03-2684L, 2005 WL 3446266 (Fed. Cl. Dec. 16, 2005); 2) regarding its January 26, 2006 Opinion, directing the parties to cite to the page numbers in the official reporter once it has been released, and in the interim, to the page numbers of the electronic version of the Opinion; and, 3) granting Defendant's Motion to Supplement the Record with Declaration of Ross O. Swimmer. By the July 31, 2002 Order, the Court lifted the stay in the case and established scheduling deadlines including the filing of "a joint status report on or before September 27, 2002, and every three months thereafter, setting forth in detail the progress of . . . settlement negotiations."
1

Case 1:92-cv-00675-ECH

Document 265

Filed 09/29/2006

Page 2 of 4

3. On April 10, 2006, the United States filed a "Motion for Reconsideration of a Portion of the Opinion and Order dated January 26, 2006." Specifically, the United States sought reconsideration of the ruling declaring that the Pembina Judgment Fund ("PJF") per capita beneficiaries are an "identifiable group" under the Indian Tucker Act, 28 U.S.C. § 1505, for purposes of litigating claims that the United States mismanaged PJF monies, and designating the Tribal Plaintiffs as the representatives of that group. See 69 Fed. Cl. at 670-74. 4. On April 18, 2006, the Court entered an Order granting the United States' "Unopposed Motion for Leave to Revise the Parties' Proposed Briefing Schedule"and denying as moot the parties' "Joint Motion to Modify Schedule as Discussed during February 28, 2006 Conference Call," and "Plaintiffs Unconsented-To Motion for Approval of Notice to Beneficiaries." The Court stated that it would consider the form and method of notice to be provided to the PJF beneficiaries based on new submissions that the parties would be directed to file after the Court ruled on the pending Motion for Reconsideration. April 18, 2006 Order, n.1. 5. On May 10, 2006, Plaintiffs filed their Opposition to the United States' Motion for Reconsideration, and on May 25, 2006, the United States filed its Reply to Plaintiff's Opposition. 6. On September 27, 2006, the Court denied the United States' Motion for Reconsideration. Pursuant to the Court's April 18, 2006 Order, the parties will now confer on a "fresh filing of agreed forms and methods of notice to the group as shall serve reasonably to publicize the pendency of this action and the opportunity to participate therein" for the Court's consideration.

2

Case 1:92-cv-00675-ECH

Document 265

Filed 09/29/2006

Page 3 of 4

II. STATUS OF NEGOTIATIONS 1. As previously reported, the parties postponed settlement discussions while the motions decided by the January 26, 2006 Opinion, 69 Fed. Cl. 639 (Fed. Cl. 2006), were pending. 2. Since the issuance of the Court's January, 26, 2006 Opinion, the parties have continued their efforts to lay the groundwork for resuming settlement discussions. 3. As previously reported, at a February 14, 2006 meeting held in Washington, D.C., counsel agreed to resume negotiations on the "baseline" (non-investment) transactions for the PJF, primarily to take into account the addition of the White Earth Band of Minnesota Chippewa Indians as a named plaintiff under the January 26, 2006 Order. 4. Plaintiffs' expert is preparing for the United States' review a revised Baseline Transactions Report for the PJF 1964 and 1980 Awards for the time period at least up until September 30, 1992. Plaintiffs have requested additional documents to assist them in preparing the Revised Report, and the United States is working with Plaintiffs in an attempt to locate and provide the requested documents. 5. Plaintiffs' expert also is preparing for the United States' review a revised "Partial Preliminary Report of Estimated Damages" that will estimate Plaintiffs' damages in this action based on its accounting and investment claims for the time periods up to the dates just prior to the major distributions of the 1964 and 1980 Awards in October 1984 and May 1988. 6. On August 3-4, 2006, counsel for the parties, agency counsel, plaintiffs' accounting/investment expert, Kevin Nunes, and John McClanahan of Interior's Office of Historical Trust Accounting ("OHTA"), met in person in Washington, DC, to discuss progress made in identifying and documenting baseline transactions for the 1964 and 1980 Awards. The 3

Case 1:92-cv-00675-ECH

Document 265

Filed 09/29/2006

Page 4 of 4

parties have made substantial progress in documenting baseline transactions associated with the 1964 Award. For negotiation purposes, the parties have resolved all outstanding baseline transactions issues for the 1964 Award through September 30, 1992, and all but two baseline transactions for the period prior to May, 1988 for the 1980 Award. The parties now turn their attention to four groups of baseline transactions for the 1980 Award in the post-May, 1988 period that still require additional documentation or substantiation. As agreed at the August 3-4, 2006 meeting, each side is working on a list of agreed-upon tasks intended to narrow the remaining gaps in information or documentation. 7. The parties intend to meet again in January/February, 2007 to discuss their progress in narrowing the gaps in accounting data and documentation, assess the work that remains to be done along those lines, and plan the next stage in the continuing process of substantiating and documenting remaining transactions as well as the PJF investment history. DATED: September 29, 2006 Respectfully submitted, /s/ Melody L. McCoy MELODY L. McCOY Attorney of Record for Plaintiffs Native American Rights Fund 1506 Broadway Boulder, CO 80302 (303) 447-8760 Fax (303) 443-7776 /s/ Carol L. Draper CAROL L. DRAPER Attorney of Record for Defendant United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0465 Fax: (202) 305-2021 Of Counsel: Elisabeth C. Brandon Department of the Interior Office of the Solicitor 4