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The Governments Motion to Dismiss


November 27, 2007

I’ve been asked to write an analysis, of the governments renewed motion to dismiss our case. An analysis is, “the process of breaking a concept down into more simple parts, so that its logical structure is displayed."

I find it impossible, for me, to fully analyze the government’s reasoning for wanting our claim dismiss because I’m not a qualified legal analyst. To analyze each paragraph will only add to the confusion that already exists. So I’ll concentrate on just a few particular areas and endeavor to explain the meaning of some words used in the government’s motion to dismiss and why they are used.

I’ll begin with the Court of Appeals decision. On January 19, 2007 the Court of Appeals for the District of Columbia in Washington D.C., rendered a unanimous opinion that remanded our case back to Judge Roberts. “Remand” means, “to send back”; a higher court may remand a case to a lower court so that the lower court will take a certain action order by the higher court.” The Appeal’s Court opinion was “we remand to the district court to determine whether P.L. 108-108 applies to any of Felter’s claims!”

P.L. 108-108 is an appropriations bill passed by Congress in late 2003. A section of this bill addresses the statute of limitation on Indian claims to mismanagement of Indian accounts. It states:

“[N]otwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of enactment of this Act, concerning the losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.”

Now in this bill, the word “notwithstanding” the first word used in this section of P.L. 108-108 is a preposition meaning “in spite of.” When used as an adverb it means “despite anything to the contrary.”

On August 31, 2007, the government filed in the District Court of Washington D.C. a renewed motion to dismiss. On page 13 of their motion, the government states. “None of Plaintiffs’ claims fit within the scope of P.L. 108-108, because the provisions setting aside the statute of limitations until an accounting is provided apply only to cases of trust fund mismanagement, not improper termination of federally recognized Indian status, asset mismanagement, or demands for an accounting.” I believe the government is splitting hairs on this.

On September 27th, our Attorney, Dennis Chappabitty filed, on our behalf, an opposition to the motion to dismiss. In our brief, he states that:

“On information and belief, defendants’ failure to account for all plaintiffs’ share of the allocated federal trust funds has resulted in unlawful benefit to defendants and other unintended persons and non-Indian business entities and resulted in an enormous loss of income to plaintiffs, their children and their heirs from funds held by the United States Treasury for their benefit as defined under the UPA.”

Now this is the portion of the share and Share Alike agreement of the Colorado Judgment handed down by the Court of Claims on July 13, 1950 and that Senator Watkins held hostage and used as blackmail to force the Ute’s into accepting the UPA. These funds were held in trust until they was released by the Indian Claims Commission in 1960, fully one year before the termination of federal supervision of the mixed-bloods’ which was in 1961. Isn’t it a miracle that the government can claim that money is not an asset and re-define word’s when it fit’s their purposes! I was taught that an asset is “all things, such as money, property, or goods, having economic value.”

On November 2nd after asking for and receiving a seven-day extension, the government filed a reply to our response of September 27th. If you’ll notice on page three of their brief, they make reference to the Cobell case by stating “in keep with this analysis of the Indian Trust Accounting provision the court found that the statute did not provide for the “revival of potentially long stale claims.” What they are doing is denying the word “notwithstanding” in P.L. 108-108 and quoting something said in 1993.

I’ve saved the best for last. Also on page three in the first paragraph line 7, they use the word “Moribund.” This word caught my eye right away. Moribund is a word which means “being on the point of death, its also a word used in Veterinary medicine meaning “in a dying state.” I find their use of this word to be in bad taste and offensive. To me this implies that our case, along with the terminated mixed-bloods, and their descendents are nothing more then dying dogs, which confirms the fact that these bureaucratic lawyers are nothing more then pompous mouthpieces of the current administration and administration of the past and their attitudes towards the American Indian!

To conclude my analysis, I encourage you to stay strong! We’ve come to far to give up now, just because some big words have been wrangled about!

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