Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 1 of 11
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
•••••••••••••••••••••••••••••••••••••
•
KENNETH G. DIFFERENT HORSE,
•
MIRANDA RAE DIFFERENT HORSE,
•
JENNIFER LEE GRASSROPE, GENEVA·
•
WATLEMATH, JOE BONE CLUB,
•
MONICABEARFACE, DONALD
•
WEINBERGER, Ill, DEBRA BOYD,
LARRY HENRY, MELISSA MOORE
•
AMMON, WINOWNA HENRY
•
SCHULTZ, IDA GUERRE, CHESTER
•
HERMAN, COLIN CAMPBELL,
•
MATTHEW LAMONT, SANDRA
•
HARMON, KEVIN SARGEANT,
•
GAYLENEJ. LONG-STUMP, PATRICK •
JACK LONG, and John Does 1 through
•
50,000, and all other persons similarly
•
situated,
•
Plaintiffs,
Ys.
CIV.
#09-yD4C1
CLASS ACTION
COMPLAINT
•
•
•
•
KENNETH L. SALAZAR, Secretary of the •
Interior, and DONNA M. ERWIN,
•
Special Trustee,
•
Defendants.
•
•
•
•••••••••••••••••••••••••••••••••••••
COME NOW the Plaintiffs, by and through the undersigned attorneys, and for
their cause of action against the Defendants state and allege as follows:
JURISDICTION AND VENUE
1.
This Court has jurisdiction herein pursuant to 28 USC §1331, §28 USC
1346 and 28 USC §2201.
2.
This is an action for declaratory judgment.
3.
Venue is proper before this Court pursuant to 28 USC §1391 because,
1
Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 2 of 11
inter alia, the underlying events or omissions giving rise to the Plaintiffs' claims occurred
in this judicial district and involve the unlawful taking of the Black Hills of South
Dakota.
PARTIES
4.
Plaintiff, Kenneth Different Horse, is a member ofthe Crow Creek
Sioux Tribe who, individually and/or through his tribe, is eligible to receive
compensation pursuant to Docket 74A and/or 74B.
5.
Plaintiff, Miranda Rae Different Horse, is a member of the Cheyenne
River Sioux Tribe who. individually and/or through her tribe, is eligible to receive
compensation pursuant to Docket 74A and/or 74B.
6.
Plaintiff, Jennifer Lee Grassrope, is a member of the Standing Rock
Sioux Tribe who, individually and/or through her tribe, is eligible to receive
compensation pursuant to Docket 74A and/or 74B.
7.
Plaintiff, Genvea Watlemath, is a member of the Lower Brule Sioux Tribe
who, individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
8.
Plaintiff, Joe Bone Club, is a member of the Standing Rock Sioux
Tribe who, individually and/or through his tribe, is eligible to receive compensation
pursuant to Docket 74A and/or 74B.
9.
Plaintiff, Monica Bearface, is a member ofthe Standing Rock Sioux Tribe
who, individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
10.
Plaintiff. Donald Weinberger, III, is a member of the Fort Peck Sioux
Tribe who, individually and/or through his tribe, is eligible to receive compensation
2
Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 3 of 11
pursuant to Docket 74A and/or 74B.
II.
Plaintiff, Debra Boyd, is a member ofthe Fort Peck Sioux Tribe who,
individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
12.
Plaintiff, Larry Henry, is a member of the Santee Sioux Tribe who,
individually and/or through his tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
13.
Plaintiff, Melissa Moore Ammon, is a member ofthe Santee Sioux Tribe
who, individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
14.
Plaintiff, Winona Henry Schultz, is a member of the Santee Sioux Tribe
who, individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
IS.
Plaintiff, Ida Guerre, is a member of the Rosebud Sioux Tribe who,
individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
16.
Plaintiff, Chester Herman, is a member of the Rosebud Sioux Tribe who,
individually and/or through his tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
17.
Plaintiff, Colin Campbell, is a member of the Cheyenne River Sioux Tribe
who, individually and/or through his tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
18.
Plaintiff, Matthew Lamont, is a member of the Cheyenne River Sioux
Tribe who, individually and/or through his tribe, is eligible to receive compensation
3
Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 4 of 11
pursuant to Docket 74A and/or 748.
19.
Plaintiff, Sandra Harmon, is a member of the Crow Creek Sioux Tribe
who, individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 748.
20.
Plaintiff, Kevin Sargeant, is a member of the Crow Creek Sioux Tribe
who, individually and/or through his tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 748.
21.
Plaintiff, Gaylene J. Long-Stump, is a member of the Ogalla Sioux Tribe
who, individually and/or through her tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 74B.
22.
Plaintiff, Patrick Jack Long, is a member of the Ogalla Sioux Tribe who,
individually and/or through his tribe, is eligible to receive compensation pursuant to
Docket 74A and/or 748.
23.
Plaintiffs, John Does I through 50,000, are, as yet, unnamed members of
the Sioux Tribe who, individually and/or through his or her respective tribe, are eligible
to receive compensation pursuant to Docket 74A and/or 74B and all other persons
similarly situated.
24.
Defendant, Kenneth L. Salazar, is the present Secretary ofthe Department
ofInterior and an agent of the United States of America.
25.
Defendant, Donna M. Erwin, is the present Acting Special Trustee for the
Special Trustee for American Indians who is an agent or employee of the United States
Department ofInterior.
GENERAL ALLEGATIONS
4
Case 4:09-cv-04049-LLP
26.
Document 1
Filed 04/16/2009
Page 5 of 11
This matter arises from the litigation commonly referred to as "Docket 74­
A and Docket 74-B".
27.
Docket 74-A was litigated as Sioux Tribe v. United States, 500 F.2d 458
(Cl. Cl. 1974).
28.
Docket 74-B was litigated as Sioux Nations v. United States, 33 Ind. Cl.
Comm. 151 (1974), United States v. Sioux Nation ofIndians, 220 Cl. Cl. 442. 60 I F2d
1157 (1979) and United States v. Sioux Nation ofIndians, 488 US 371 (I 980).
29.
Eight (8) Sioux Tribes occupying reservations in Montana, North Dakota,
South Dakota and Nebraska were parties to Docket 74-A and 74-B.
28.
Those eight (8) tribes are:
a.
b.
c.
d.
e.
f.
g.
h.
30.
Cheyenne River Sioux Tribe of the Cheyenne River
Reservation (South Dakota);
Crow Creek Sioux Tribe of the Crow Creek Reservation
(South Dakota);
Lower Brule Sioux Tribe of the Lower Brule Reservation
(South Dakota);
Oglala Sioux Tribe of the Pine Ridge Reservation (South
Dakota);
Rosebud Sioux Tribe of Rosebud Reservation (South
Dakota);
Santee Sioux Tribe of Nebraska (Nebraska);
Sioux Tribe of the Fort Peck Reservation (Montana); and
Standing Rock Sioux Tribe of the Standing Rock
Reservation (North Dakota and South Dakota).
The Indian Claims Commission (ICC) ruled that the 1877 Act constituted
an unconstitutional taking of the Black Hills and the three (3) different claims (timber,
water and mineral) under the Just Compensation Clause of the Fifth Amendment and the
United States was required to pay just compensation to the Docket 74 Sioux Indians.
31.
On July 30, 1987, the Court of Claims entered a final judgment in Docket
74-A holding that the Sioux Nation recover of, and from, the United States of America
5
Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 6 of 11
the sum of $43,949,700.00 less stipulated offsets of $3,703,892.98 for a net amount of
$40,245,807.02. (See, Oglala Sioux Tribe and Rosebud Sioux Tribe v. United States, 862
F2d 275 [Fed. Cir. 1988]).
32.
The ICC then awarded the Docket 74-B Sioux the sum of $17.1 million
for the 7.3 million acres of the Black Hills land that the United States confiscated as well
as five (5) percent simple interest from the time of the taking for a total of$105 million.
(See, Sioux Nation v. United States, 33 Ind. Cl. Comm. 151 [1974]).
33.
On June 20, 1980, the United States Supreme Court affirmed the 1979
judgment of the Court of Claims. (See, United States v. Sioux Nation ofIndians, 488 US
371 [1980]).
34.
The monetary award less the sum often (10%) percent which was allowed
as attorney fees was deposited in interest bearing accounts to be managed by the United
States Secretary of the Interior, who presently is Kenneth L. Salazar.
35.
Those accounts are under the control of the United States Secretary of the
Interior, Special Trustee, who is presently Donna M. Erwin.
36.
The government required the eight (8) tribes to agree upon the allocation
of the monies.
37.
That exclusive period of time within which all eight (8) tribes had to agree
was ten (10) years.
38.
The tribes could not agree among themselves within that ten (10) year
period or within the past twenty-eight (28) years.
39.
The monies have been on deposit with the Secretary of the Interior for
more than twenty-eight (28) years.
6
Case 4:09-cv-04049-LLP
40.
Document 1
Filed 04/16/2009
Page 7 of 11
Some of the tribes continue to reject the monetary awards and demand the
return of the "taken" lands which include the Black Hills of South Dakota as well as the
federal lands.
41.
The issue of the return of the land is moot at this point inasmuch as the
judgment is final and non-appealable.
42.
Neither the treaty council nor the any of the tribes, through their respective
tribal councils, have taken any action for a period of more than fifteen (15) years to
distribute the funds.
SPECIFIC ALLEGATIONS
43.
Plaintiffs re-allege each of the averments set forth in paragraphs I through
42 above.
44.
Plaintiffs are each enrolled members of one (I) of the eight (8) affected
45.
Plaintiffs are each seeking their pro rata portion of the monies held in trust
tribes.
by the Special Trustee (ST).
46.
Defendant, Kenneth L. Salazar, the United States Secretary of the Interior,
and/or Donna M. Erwin, Special Trustee have custody and/or control over the settlement
monies.
47.
Further, upon information and belief, the monies on deposit with the
Special Trustee (ST) should be distributed to the above referenced Plaintiffs on an
individual basis.
CLASS ALLEGATIONS
48.
Plaintiffs re-allege each of the averments set forth in paragraphs 1 through
7
Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 8 of 11
47 above.
49.
Plaintiff bring this action individually and pursuant to Rule 23(b)(I-3) and
(c)(4), of the Federal Rules of Civil Procedure on behalf of a Class of all similarly
situated persons eligible to receive compensation pursuant to Docket 74-A and/or Docket
74-B. Excluded from the Class is any member of the judiciary presiding over this action.
50.
The Class is so numerous that joinder of all members of the Class is
impractical.
51.
Plaintiffs are mem bers of the Class and will fairly and adequately assert
and protect the interests of the Class.
52.
Plaintiffs' interests coincide with, and are not antagonistic to, those
interests of other members of the Class.
50.
Plaintiffs have retained attorneys who are highly experienced in class
action litigation.
53.
There are questions oflaw which are common to the Class, which
common questions predominate over any questions affecting only those individual
members of the Class.
54.
55.
Common questions include, but are not limited to, the following:
a.
Are members of the Class entitled to a distribution of funds from
Docket 74-A and/or 74-8?
b.
Is the Secretary of the Interior obligated to release the funds held
by the Special Trustee for American Indians pursuant to Docket
74-A and/or 74-8?
c.
Is the Secretary of the Interior obligated to release fund held
pursuant to applicable law?
The prosecution of separate actions by individual members of the Class
would create a risk of:
8
Case 4:09-cv-04049-LLP
56.
Document 1
Filed 04/16/2009
Page 9 of 11
a.
Inconsistent or varying adjudication with respect to individual
members of the Class; and/or
b.
Adjudication with respect to individual members of the Class,
which would, as a practical matter, be dispositive of the interests of
other members not parties to the adjudication or substantially
impair or impede their abil ity to protect their interest.
The Class action method is appropriate for the fair and efficient
prosecution of this action.
57.
Individual litigation of all claims, which might be brought by all Class
members, would produce such a multiplicity of cases that the judicial system would be
congested for years.
58.
Class treatment, by contrast, provides manageable judicial treatment
calculated to bring a rapid conclusion to all litigation of all claims arising from the herein
alleged conduct.
COUNT 1
DECLARATORY RELIEF
59.
Plaintiffs repeat and re-allege each and every allegation set forth in
paragraphs I through 58 above as if set forth herein.
60.
An actual controversy over which this Court has jurisdiction now exists
between PlaintifTs, the Class and Defendants concerning their respective rights, duties
and obligations for which Plaintiffs desire a declaration of rights under the applicable
claims asserted herein concerning the distribution of funds held pursuant to Docket 74-A
and 74-8.
61.
PlaintifTs contend that Defendants are obi igated to distribute the monies
they hold in trust pursuant to Docket 74-A and 74-B, including interest, and that Plaintiffs
are eligible to receive individual distributions of said funds with respect to Dockets 74-A
9
Case 4:09-cv-04049-LLP
Document 1
Filed 04/16/2009
Page 10 of 11
and 74-8.
62.
Plaintiffs request a judicial determination and declaration of the parties'
rights, duties and obligations.
63.
A judicial declaration is necessary and appropriate at this time under the
circumstances in order that the parties may ascertain their respective rights and duties.
64.
Plaintiffs continue to be harmed by Defendants' maintenance of the
monies held pursuant to Docket 74-A and 74-8, to their detriment, and, therefore relief is
appropriate pursuant to 28 USC §§2201 and 2202.
WHEREFORE, Plaintiffs, individually and as part of the Class, pray for relief as
follows:
I.
This action be certified as a Class action under Federal Rule of Civil
Procedure 23, designating Plaintiffs as class representatives and their counsel as Class
counseL
2.
Declare the rights of the parties as requested herein and by making a
determination as to the appropriate allocation of the monies on deposit with the Special
Trustee (ST) as a result ofthe Docket 74-A and 74-8 judgments.
3.
The Court enter an Order n,quiring the Special Trustee to disgorge all of
the monies that are held pursuant to Docket 74-A and 74-8 for payment to the Plaintiffs.
4.
The Court make a determination as to the appropriate allocation of the
monies on deposit with the Special Trustee (ST) as a result of the Docket 74-A and 74-8
allocations.
5.
The Court grant the Plaintiffs' counsel all of their costs and expenses
incurred herein including their attorney fees and sales tax.
6.
The Court award the Plaintiffs' prejudgment and post-judgment interest.
10
Case 4:09-cv-04049-LLP
7.
Document 1
Filed 04/16/2009
Page 11 of 11
The Court grant such other and further relief as it deems just and
equitable.
Dated this 15 th day of April, 2009.
Creight A. Thurman
Attorney at Law
P.O. Box 897
Yankton, SD 57078
(605) 260 - 0623
LARRY D. DRURY LTD.
Larry D. Drury
Attorney at Law
205 West Randolph
Suite #1430
Chicago, lL 60606
(312) 346 - 7950
II