UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

ELOUISE PEPION COBELL, et al.,  : :  
Plaintiffs,  : :  
v.  : :  Civil Action No. 96-1285 (JR)  
DIRK KEMPTHORNE, Secretary ofthe Interior, et al.,  : : :  
Defendants.  : 

MEMORANDUM ORDER 

The current posture of this case cannot be fully described 
in less than 40 or 50 pages, but the premises of this order can 
be recited in a half-dozen bullet points: 

• 	
In late 1999, in Cobell V, the defendants were found to be 
in breach of the duties assigned to them by the Indian Trust 
Fund Management Reform Act of 1994, including especially the 
duties to provide adequate systems for accounting for trust 
fund balances, provide periodic timely reconciliations to 
assure the accuracy of accounts, and provide account holders 
with periodic statements and balances. 25 U.S.C. § 162a(d); 
25 U.S.C. § 4011. This court ordered the defendants to come 
into compliance with their obligations and to make quarterly 
reports of their progress. 


• 	
For seven years thereafter, the parties engaged in strenuous 
litigation over the government’s compliance or noncompliance 
with that order, the appointment and activities of monitors 
and special masters, the configuration and security of DOI’s 


information technology systems, the capabilities vel non of 
new software acquired or developed by DOI, and the details 
of injunctions issued by this court, among other things. 


• 	
After numerous decisions of this court and of the Court of 
Appeals – to and including Cobell XIX – the orders that 
remain in effect still require the government to produce an 
accounting for each IIM account, to make quarterly reports 
of its progress toward that goal, and to comply with a 
consent order regarding IT security. 


• 	
The Court of Appeals decision in Cobell XVII and Congress’s 
failure to follow up on Pub.L.No. 108-018, 117 Stat. 1241 
(2003), have left unresolved the details of the defendants’ 
historic accounting obligations. Also unresolved is a subset 
of that issue – the question of whether statistical sampling 
will “satisfy fiduciary standards,” Cobell XVIII, slip op. 
at 12. 


• 	
The government is continuing to make quarterly reports and 
continuing to pursue its IIM accounting agenda, collecting 
and indexing documents and producing historical statements 
of account (HSAs), which it proposes to send to IIM account 
holders, all as reported in quarterly status reports (e.g. 
No. 28, dated February 1, 2007 [3290]). The government is 
also preparing and will soon publish a new trust management 
plan. 


• 	
Plaintiffs oppose the government’s request for approval of 
its plan to send HSAs to IIM account holders and demand a 
trial. At such a trial, plaintiffs suggest, the government 
would present its accounting, the plaintiffs would challenge 
(or approve) it, and equitable restitution would be awarded 
for any of the ca. $13 billion revenue collected for IIM 
accounts that cannot be accounted for. 


After three off-the-record meetings with counsel for the 
parties (two of which, by mutual consent, were ex parte), it is 
clear that the remaining issues in this case cannot be resolved 
without a “trial” -- or something like a trial, call it an 
evidentiary hearing if you like. More than seven years (and 
twenty-eight quarterly status reports) after Cobell V, it is both 
prudent and well within the supervisory powers of this court to 
review the accounting project in detail, and to do so in open 
court, where the government may present, and plaintiffs may test 
or challenge, the methodology and results of the accounting 
project up to the time of the hearing. The end product of such a 
proceeding would include the answers to at least the following 
questions: 


• 	
Have the defendants cured (or are they curing) the breaches 
of their fiduciary duty that were found in Cobell V? 


• 	
Do the defendants’ HSAs i.e., satisfy defendants’ duties 
“rooted in and outlined by the relevant statutes and 
treaties . . . [and] defined in traditional equitable 
terms”? Cobell VI, 240 F.3d at 1099. 


• 	
Have the defendants unreasonably delayed the completion of 
the required accounting? 


• 	
What further relief, if any, should be ordered? 



The hearing will begin at 9:30 a.m. October 10, 2007, and 
continue as long as necessary. Witnesses will be tendered for 
cross-examination after presented written direct testimony. At 
some point during the hearing, or perhaps beforehand, a visit to 
the Lenexa project site is contemplated. A number of prehearing 
conferences will probably be necessary, to refine and perhaps 
amend the issues and to hear and resolve motions in limine. The 
first such conference will be held at 10 a.m. May 9, 2007.  At 
that conference, the Court will also hear argument on the 
government’s pending motion [3299] to vacate the consent order 
regarding IT security. 

Two motions for sanctions were granted in February and March 
2003, [1898] and [1772]; statements of fees and expenses were 
duly submitted in June and November 2004, [2596] and [2762]; but 
orders to pay were never issued. The dollar amounts of the 
statements have not been seriously contested. I have reviewed 

them and find them to be reasonable. The government must now pay 
to plaintiffs’ counsel the sum of $519,565.64. 

The Court’s order of January 16, 2007 [3283], to the extent 
it denied defendant’s motion to quash certain deposition notices 
[3186] and defendant’s motion for a protective order [3044], was 
entered in error, and (only to that extent) is vacated. 
Defendant’s motions to quash certain deposition notices [3186] 
and for protective order [3044] are instead granted. Plaintiff’s 
motions to compel, [3295] and [3296], are accordingly denied as 
moot. 

It is SO ORDERED.

 JAMES ROBERTSON 
United States District Judge