UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ELOUISE PEPION COBELL, et al., ) Civil Action No. 96-1285 (RCL) Plaintiffs, v. ) ))) ) GALE A. NORTON, et al., ) Defendants. ) ) ____________________________________) DEFENDANTS’ MOTION FOR EXPEDITED CLARIFICATION OR, IN THE ALTERNATIVE, MODIFICATION OF THE DECEMBER 23, 2002 ORDER Defendants hereby move this Court to clarify, or, in the alternative, to modify, on an expedited basis, the Order entered in this matter on December 23, 2002 (“Order”). In support thereof, Defendants submit the following: On December 23, 2002, this Court entered an Order that stated, in pertinent part, 1. that during the pendency of the instant litigation, the parties to the litigation, their agents and officials, and their counsel shall not communicate, though the United States mail or any other mode of communication, with any class member in this litigation regarding this litigation or the claims involved therein, except as specifically permitted by order of this Court. This restriction includes, but is not limited to, any communications that affect the rights of class members to a full and accurate accounting of their Individual Indian Money trust accounts. Order at 18-19. On February 14, 2002, the Quapaw Tribe of Oklahoma (the “Tribe”) filed a 2. complaint (“Complaint”) in the United States District Court for the Northern District of Oklahoma against the United States Department of the Interior (“Interior”) seeking an order requiring Interior to provide the Tribe with an accounting of the Tribe’s trust assets, accounts, and funds (Quapaw Tribe of Oklahoma v. Department of the Interior, No. 02-CV-129-H(M) (N.D. Okla.)). The Tribe and Interior subsequently engaged in extended settlement negotiations, 3. which ultimately resulted in an executed Settlement Agreement, attached hereto as “Exhibit 1." The Settlement Agreement provides for the award of a contract (the “OHTA 4. Contract,” attached as “Exhibit A” to the Settlement Agreement) by Interior’s Office of Historical Trust Accounting (“OHTA”) to Quapaw Information Systems, Inc. (“QIS” or the “Contractor”), a not-for-profit tribal enterprise, in which QIS will, in consultation with the Tribe, identify, select, and analyze documents, and prepare an analysis (the “Quapaw Analysis”) of Interior’s management of certain of the Tribe’s tribal trust fund accounts and certain nonmonetary land and natural resources assets held in trust on behalf of the Tribe and eight individual members of the Tribe (these eight individual members are hereinafter collectively referred to as the “Eight Individuals”). Settlement Agreement, Art. 1, ¶ 1. Although an evaluation of Interior’s management of certain non-monetary trust 5. assets of the Eight Individuals will be a component of the Quapaw Analysis, the Settlement Agreement does not, in any way, resolve any claims that the Eight Individuals have asserted or may assert against the United States, including Interior. See Settlement Agreement, Art. 1, ¶¶ 4 & 5; see generally the entire Settlement Agreement. In addition, “[t]he component of the Quapaw Analysis addressing Interior’s 6. management of certain non-monetary trust assets of the Eight Individuals shall not include an analysis of Interior’s management of the Individual Indian Money (“IIM”) accounts of either the - 2 - Eight Individuals or of any other individual member of an Indian tribe.” Settlement Agreement, Art. 1, ¶ 1; see also OHTA Contract at 8, § C.1 c. Further, the OHTA Contract makes clear that the Quapaw Analysis “will not, in 7. any way, relate to or involve Interior’s money management of IIM accounts.” OHTA Contract at 8, § C.1 c. The OHTA Contract expressly states that the Contractor “shall not be provided access to documents or any other information involving or relating to IIM accounts[,] [n]or shall the Contractor contact or communicate, either directly or indirectly, with any holder of an IIM account concerning that individual’s IIM account.” Id.; see also OHTA Contract at 9-10, § C.1 d. (7) & (13); id. at 12, § C.1 g. (3)(d). Defendants understand that QIS will not be able adequately to prepare the 8. Quapaw Analysis without having occasional contacts with both the Tribe and the Eight Individuals that could touch on Interior’s management of the Tribe’s tribal trust fund accounts and Interior’s management of certain non-monetary trust assets of both the Tribe and the Eight Individuals. To ensure that the implementation of the OHTA Contract will not result in a 9. violation of the Order, the Settlement Agreement expressly provides that it shall become null and void if this Court does not grant the instant Motion for Clarification. See Settlement Agreement, Art. 1, ¶ 8. Accordingly, Defendants respectfully move this Court for clarification that 10. performance of the tasks under the Settlement Agreement are permitted and would not be in violation of the Order. This is true because 1) the Settlement Agreement neither resolves nor requires a waiver of any claims involved in the Cobell v. Norton litigation or any other claim that a member of the Cobell Plaintiff class has asserted or may assert against the United States; 2) the - 3 - OHTA Contract does not involve an analysis of Interior’s money management of IIM trust fund accounts; 3) the OHTA Contract contains express language prohibiting the Contractor from obtaining or using any documents or information relating to IIM trust fund accounts; and 4) the OHTA Contract expressly prohibits the Contractor from making any contacts or having communications with IIM trust fund account-holders about their IIM trust fund accounts. In the alternative, if this Court determines that the Settlement Agreement does 11. violate the Order, Defendants request that the Order be modified to permit the Tribe and Interior to carry out their Settlement Agreement. Because either the Tribe or Interior may withdraw from the Settlement Agreement 12. if this Court has not ruled on the instant Motion for Clarification by August 20, 2004, see Settlement Agreement, Art. 1, ¶ 8, Defendants respectfully request that Defendants’ Motion for Clarification be considered on an expedited basis. On Tuesday, July 20, 2004, counsel from the U.S. Department of Justice 13. sent, via facsimile, a letter to Mr. Keith Harper, counsel for Plaintiffs, requesting his clients’ position on Defendants’ Motion for Clarification in time so that it could be filed by the end of that week. A draft of the instant Motion, with all accompanying exhibits, was attached to the letter. To date, Defendants have not received a response to Defendants’ letter requesting Plaintiffs’ position on the instant Motion for Clarification. - 4 - WHEREFORE, Defendants respectfully request that Defendants’ Motion for Expedited Clarification or, in the Alternative, Modification of the December 23, 2002 Order be granted. Respectfully submitted, ROBERT D. McCALLUM Associate Attorney General PETER D. KEISLER Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director /s/Cynthia L. Alexander SANDRA P. SPOONER Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Counsel CYNTHIA L. ALEXANDER Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Attorneys for Defendants - 5 - CERTIFICATE OF SERVICE I hereby certify that, on July 23, 2004 the foregoing Defendants' Motion for Expedited Clarification Or, in the Alternative, Modification of the December 23, 2002 Order was served by Electronic Case Filing, and on the following who is not registered for Electronic Case Filing, by facsimile: Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 59417 Fax (406) 338-7530 /s/ Kevin P. Kingston Kevin P. Kingston UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ELOUISE PEPION COBELL, et al., ) Civil Action No. 96-1285 (RCL) Plaintiffs, v. ) ))) ) GALE A. NORTON, et al., ) Defendants. ) ) ____________________________________) ORDER Before the Court is DEFENDANTS’ MOTION FOR EXPEDITED CLARIFICATION, OR, IN THE ALTERNATIVE, MODIFICATION OF THE DECEMBER 23, 2002 ORDER (“MOTION FOR CLARIFICATION”), in which Defendants seek an order clarifying that the Settlement Agreement reached in the matter of Quapaw Tribe of Oklahoma v. Department of the Interior, No. 02-CV-129-H(M) (N.D. Okla.), and entered into between the Quapaw Tribe of Oklahoma (“Tribe”) and the United States Department of the Interior (“Interior”) (attached as “Exhibit 1" to the MOTION FOR CLARIFICATION), and the tasks to be performed thereunder, do not violate this Court’s order of December 23, 2002 (“Order”), prohibiting Defendants from communicating “with any class member in this litigation regarding this litigation or the claims involved therein, except as specifically permitted by order of this Court.” Order at 19. Upon consideration of Defendants’ MOTION FOR CLARIFICATION, and the attachments thereto, it is hereby ORDERED that DEFENDANTS’ MOTION FOR EXPEDITED CLARIFICATION, OR, IN THE ALTERNATIVE, MODIFICATION OF THE DECEMBER 23, 2002 ORDER is GRANTED. IT IS FURTHER ORDERED that the December 23, 2002 Order previously entered in this matter permits the Tribe and Interior to carry out the terms of their Settlement Agreement. SO ORDERED this __ day of __________, 2004. __________________________________________ UNITED STATES DISTRICT COURT JUDGE cc: Sandra P. Spooner John T. Stemplewicz Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 514-9163 Dennis M Gingold, Esq. Mark Brown, Esq. 607 - 14th Street, NW, Box 6 Washington, D.C. 20005 Fax (202) 318-2372 Keith Harper, Esq. Richard A. Guest, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 59417 (406) 338-7530