Editor’s Note: On June 1, 2016, the 8th U.S. Circuit Court of Appeals concluded that U.S. District Judge Michael Davis erred in imposing sanctions against attorney Erick Kaardal and overturned the sanctions. In a summary of the case, the appeals court said that Kaardal “made good-faith, non-frivolous arguments.” However, the 8th circuit upheld Judge Davis’ decision to dismiss the law suit, concluding that an 1863 federal law “does not create a private right of action to members or descendants of the loyal Mdewakanton Sioux.” More information about the 8th Circuit decision.
He is an advocate of an obscure movement called “neopopulism,” has co-authored a book on the subject and proudly proclaims on a website he created that he has “a passion for neo-populism, the rule of law and suing the government.”
He’s won some cases and lost some and garnered his share of headlines. But he might have overstepped the limits with his latest legal salvo, if a ruling by U.S. Chief District Judge Michael Davis holds up on appeal.
Calling Kaardal’s claims in a lawsuit over an American Indian land issue “completely frivolous without a factual or legal basis,” Davis ordered him to pay “severe sanctions” by reimbursing the attorneys’ fees and costs of the groups he’s sued.
That could run from $175,000 to $1 million, based on defense attorney claims that will be submitted to Davis. Anticipating a hefty payout if Kaardal loses the appeal, Davis issued an order saying that he must post a $200,000 bond.
In the aftermath of Davis’ ruling last week, Kaardal first agreed to an interview, then changed his mind. “After some consideration, I have no comment at this time,” Kaardal wrote in an e-mail.
His clients are descendants of a group of Mdewakanton Sioux Indians who were promised but never given 12 square miles of land in southwestern Minnesota by Congress in 1863 for their loyalty after they sided with white settlers in the 1862 Dakota uprising. The suit sought to acquire the land and evict 75 private landowners and an Indian tribe that now occupy it.
‘Vexatious and wanton’
In his ruling last week, Davis was blistering in his criticism of Kaardal’s suit, which he threw out in March.
“The court finds that plaintiffs and their counsel brought this action in bad faith,” Davis wrote. “After eleven years of unsuccessful litigation … it should have been clear that this action had no basis in fact or law. In addition, the court finds that in the response to the motions for sanctions, plaintiff’s counsel continued to engage in vexatious and wanton conduct by asserting frivolous legal arguments and misrepresenting the law.”
The suit, filed in May 2014, sought damages and the eviction of the Lower Sioux Indian Community — whose tribal reservation is on part of the land — private landowners and the counties of Redwood, Renville and Sibley and five townships, which maintain roads on the land. Davis ruled that the tribe was entitled to sovereign immunity from a lawsuit. He added that “a reasonable and competent attorney would know that claims raised over 100 years later would be equitably barred.”
In addition, Davis wrote, property owners “have had to deal with the enormous stress of having a federal lawsuit pending against them and of not knowing whether their homes and land would be taken away.
“This action has also clouded titles to their land, making it impossible to conduct any transactions,” Davis said.
Kaardal and ‘Goliath’
Kaardal has an undergraduate degree from Harvard, a law degree from the University of Chicago and a reputation for controversial lawsuits against governmental entities. “In these David and Goliath contests,” it says on his neopopulism website, “Mr. Kaardal asserts that the government has violated its authority, the rule of law and common sense. In Mr. Kaardal’s view, too few lawyers take the people’s side in litigation against the government — Mr. Kaardal does.”
A retired Minnesota Army National Guard captain, Kaardal is a past secretary-treasurer of the Minnesota Republican Party.
He has won some surprising victories. Last September, the Eighth U.S. Circuit Court of Appeals struck down a 101-year-old law that makes it a crime to make false political statements about a ballot question. The court overturned a decision by U.S. District Judge Ann Montgomery, who dismissed the case brought by Kaardal and his legal partner, Bill Mohrman.
Kaardal “is a committed advocate for his clients and has shown a willingness to take cases that a vast majority of lawyers would pass on,” says Lee McGrath, managing attorney for the Minnesota office of Institute for Justice, a libertarian public interest law firm. McGrath called Kaardal a friend, but added, “He has developed a philosophy that is different from a libertarian.”
Kaardal and Thomas Dahlberg co-authored a 2012 book, “Neopopulism as Counterculture,” that can be ordered online, although the publisher only prints them to order. Kaardal did not respond to requests to make a copy of the book available.
Kaardal will almost certainly fight the sanctions as well as Davis’ dismissal of the case. In a news release in March, his law firm stated, “the Loyal Mdewakanton will proceed with their appeal to correct a historic injustice.”