WOLFCHILD V. UNITED STATES (NO. 09-579); ZEPHIER V. U.S. (NO. 09-580) – On November 6, 2009,
two groups of individuals who claim to be descendants of the “loyal†Mdewakanton Sioux filed petitions
seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit which reversed the trial
court’s finding of breach of trust by the United States. Based on its determination that the finding of
breach of trust is a critical prerequisite to identifying which plaintiffs are entitled to relief and calculating
the measure of damages due, the trial court certified two questions for immediate appellate review. In
response, the Federal Circuit held that (1) the 1888, 1889 and 1890 Appropriation Acts enacted for the
benefit of the loyal Mdewakanton Sioux and their lineal descendants which included lands, improvements
to lands and monies as the corpus did not create a trust; and (2) if the referenced Appropriations Acts did
create a trust (which they did not), the 1980 Act terminated that trust by giving the three Mdewakanton
Indian communities beneficial ownership of the lands. The U.S. filed a waiver of its right to respond on
December 7, 2009, and the petitions were scheduled for conference on January 15, 2010. However, on
January 13, 2010, the Court issued a request for the United States file a response by February 12, 2010.
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