<< COB0000001 >>
TN THE UNITED STATES DISTRICT COURT
FOR TilE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. 1:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior et aL,)
		)
	Defendants.	)
DEFENDANTS~ MOTION TO WITHDRAW
THREE MOTIONS FOR PARTIAL SUMMARY JUDGMENT
	Currently pending before the Court are three motions for partial summary judgment filed
by Defendants between March 27, 2000, and September 19, 2000. In light of the significant
developments that affect these ixiotions since they were filed most notably the decision by the
United States Court of Appeals for the District of Columbia Circuit affinning this Court's Order
of December21, 1999, and the creation of the Office of Historical Trust Accounting within the
Department of the Interior — Defendants respectfully move the Court to permit withdrawal of
their three motions for partial summary judgment.
	In the event the Court does not permit withdrawal of the motions, Defendants respectfully
request the opportunity to file supplemental briefs to address the effect of subsequent events on
the arguments made in the motions.
<< COB0000002 >>
	On February 1, 2002, counscl for Defendants attempted to contact counsel for Plaintiffs
to determine whether Plaintiffs will consent to this motion, but were unable to reach him.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIIEFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHI4
Director
	1	~
Dated: February 1,2002	xJ <'-'-a ..
	SANDP~A P. SPOONER
D.C. Bar No. 261495
	Deputy Director
JOHN 'I'. STEMPLEWICZ
Senior Trial Attorney
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
OF COUNSEL:
Sabrina A. McCarthy	Brian Ferrell
Department of the Interior	Department of the Treasury
Office of the Solicitor	Office of the General Counsel
2
<< COB0000003 >>
[N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL, et aL,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. 1:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior et al.,)
		)
	Defendants.	)
MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO
WITHDRAW THREE MOTIONS FOR PARTIAL SUMMARY JUDGMENT'
	Currently pending before the Court are three motions for partial summary judgment filed
by Defendants between March 27, 2000, and September 19, 2000. Much has happened in this
case affecting the motions since their filing, most notably the decision by the United States Court
of Appeals for the District of Columbia Circuit affirming this Court's Order of December 21,
1999, and the creation of the Office of Historical Trust Accounting within the Department of the
Interior ("Interior"). In light of these developments and their effect on the pending motions,
Defendants respectfully request that the Court permit withdrawal of their three motions for
partial summary judgment. In the event the Court does not permit withdrawal of the motions,
Defendants respectfully request the opportunity to file supplemental briefs to address the effect of
subsequent events on the arguments made in the motions.
	As this brief was being finalized, Defendants and their counsel received the Fifth
Report and the Sixth Report of the Court Monitor. We will respond to the Court Monitor's
Reports separately.
<< COB0000004 >>
BACKGROUND
	On December 21, 1999, following the Phase I trial, this Court issued a Memorandum
Opinion and Order in which it decided the Phase I prospective issues, as well as one Phase II
issue: the Court held that "the Indian Trust Fund Management Reform Act, 25 U.S.C. §§ 162a et
seq. & 4011 et seq., requires defendants to provide plaintiffs an accurate accounting of all money
in the JIM trust held in trust for the benefit of plaintiffs, without regard to when thc funds were
deposited." Cobell v. Babbitt, 91 F. Supp. 2d 1, 58 (D.D.C. 1999). The Court certified its order
for interlocutory appeal, and directed that "ffirther proceedings in this case shall not be stayed
during the pendency of any interlocutory appeal that may be taken." Id. at 59. Defendants
petitioned for interlocutory appeal; the United States Court of Appeals for the District of
Columbia Circuit granted the petition on Febnrnry 17, 2000. Aware that a ruling by the Court of
Appeals regarding Defendants' accounting obligation would be controlling, yet mindful of this
Court's directive to proceed with Phase 11 during the pendency of the appeal, Defendants filed
three motions for partial summary judgment to obtain the guidance of the Court on the scope of
Phase H.
	First Motion. On March 27, 2000, Defendants filed "Defendants' Motion For Partial
Summary Judgment On Plaintiffs' Claims For An Historical Accounting of lIM Accounts"
("First Motion").2 In this motion, Defendants sought partial summary judgment on Plaintiffs'
claim that TIM account holders are entitled to a common law-style historical accounting that
reconciles each credit or debit that was or should have been made to each ITM account from the
	2 Plaintiffs filed a brief in opposition to the First Motion on July 7, 2000. Defendants
filed a reply brief on July 28, 2000.
2
<< COB0000005 >>
beginning of the IDA tnist until October 25, 1994, the effective date of the American Thdian Trust
Fund Management Reform Act of 1994 ("1994 Reform Act"). Relying on the language of the
1994 Reform Act and this Court's holding that "[P]laintiffs' substantive rights are created by —
and therefore governed by — statute," Cobell v. Babbitt, 91 F. Supp. 2d at 29, Defendants argued
that neither the 1994 Reform Act nor any other statute requires such an historical accounting or
reconciliation. Rather, Defendants argued, the 1994 Reform Act imposes prospective
obligations, including obligations to provide periodic, timely reconciliations to assure the
accuracy of accounts and to determine accurate cash balances.3 See Defs.' First Motion at 1;
Defs.' Memo. in Supp. of First Motion at 23-35.
	In the First Motion, Defendants also sought partial summary judgment on Plaintiffs'
claim for a court-ordered "restatement" or "correction" of llTvf accounts. Defendants argued that
this Court's prior rulings and controlling precedent establish that any claim for a restatement or
correction of ITM accounts to rectify potential errors in administration of the accounts (such as
mispayment or loss of funds, failure to collect income due under a lease, or failure to invest funds
properly) is a claim for "money damages" that is beyond the jurisdiction of the Court. See Defs.'
First Motion at 2; Defs.' Memo. in Supp. of First Motion at 36-45.
	Second Motion. On May 12, 2000, Defendants filed "Defendants' Second Phase II
Motion For Partial Summary Judgment (Re: Funds Not Deposited Or Invested Pursuant To The
	~	Defendants acknowledged that compliance with this prospective obligation would
require them to address historical deficiencies in LIM account administration. Defs.' First Motion
at I; Defs.' Memo. in Supp. of First Motion at 24.
3
<< COB0000006 >>
Act Of June 24, 1938)" ("Second Motion").4 In the Second Motion, Defendants sought summary
judgment that neither the 1994 Reform Act nor any other authority requires Interior to perform an
accounting for funds not actually held in trust and deposited or invested pursuant to the Act of
June 24, 1938, such as funds paid directly from lessees to the allotment owners. Defendants
argued that the plain language and the structure of the 1994 Reform Act establish that Interior's
accounting obligation applies only to funds deposited or invested pursuant to the Act of June 24,
1938 (25 U.S.C. § 162a), and does not, as Plaintiffs allege, extend to funds that never came into
Defendants' hands. See Defs.' Second Motion at 1, Defs.' Memo. in Supp. of Second Motion at
10-16. Defendants also argued that the plain language of the 1994 Act on this point is supported
by the Indian trust principles announced in cases such as United States v. Mitchell ("Mitchell
if:). 463 U.S. 206 (1983), which held that fiduciary obligations attach when "the Federal
Government takes on or has control or supervision over tribal monies or properties." Mitchell II,
463 U.S. at 225; see Defs.' Memo. in Supp. of Second Motion at 16-18.
	Third Motion. On September 19, 2000, Defendants filed "Defendants Third Phase H
Motion For Partial Summary Judgment (Re: Settlement Of Accounts By Treasury And GAO)"
("Third Motion").5 In this motion, Defendants sought summary judgment that neither the 1994
Reform Act nor any other law requires Defendants to account for transactions that occurred in
UM accounts prior to 1951. Relying again on this Court's ruling that "[P]laintiffs' substantive
rights are created by — and therefore governed by — statute," Cobell v. Babbitt. 91 F. Supp. 2d at
	'~ Plaintiffs filed a brief in opposition to the Second Motion on July 7, 2000. Defendants
filed a reply brief on July 19, 2000. Plaintiffs filed a corrected surreply brief on July 26, 2000.
	' Plaintiffs filed a brief in opposition to the Third Motion on November 3, 2000.
Defendants filed a reply brief on December 6,2000.
4
<< COB0000007 >>
29, Defendants argued that because Congress defined the obligation to account for individual
Indian monies between 1 81 7 and 1 951, and established specific procedures for final settlement of
the accounts, Defendants were entitled to summary judgment that any obligation to account for
transactions occurring prior to 1951 can be satisfied by demonstrating compliance with the
requirements of the relevant statutes. See Defs.' Third Motion at 1; Defs.' Memo. in Supp. of
Third Motion at 22-27. Defendants also submitted evidence of compliance with the relevant
statutes, and argued that Plaintiffs are not now entitled to a second or different accounting or
reconciliation of the transactions subject to the detailed and specific accounting procedure
Congress mandated for JIM transactions through 1951. See Defs.' Memo. in Supp. of Third
Motion at 27-33.
	Several key events have occurred since Defendants filed the Third Motion. On February
23, 2001, the Court of Appeals issued its opinion, providing significant guidance on many of the
issues raised in the three motions for partial summary judgment. See Cobell v. Norton, 240 F.3d
1081 (D.C. Cir. 2001). On July 10, 2001, the Secretary of the Interior ("Secretary") issued
Secretarial Order No. 3231 establishing the Office of Historical Trust Accounting ("OHTA") to
"plan, organize, direct, and execute the historical accounting of Individual Indian Money Trust
(JIM) accounts." On September 10, 2001, OHTA issued a "Blueprint for Developing the
Comprehensive Historical Accounting Plan for Individual Indian Money Accounts," which was
filed with the Court on September 12, 2001. On November 7, 2001, OHTA issued a "Report
Identifying Preliminary Work for the Historical Accounting," which was filed with the Court on
November 9,2001. Interior's Status Report to the Court Number Eight ("Eighth Report"), filed
on January 16, 2002, reports the steps taken by OHTA between August 1, 2001, and December
5
<< COB0000008 >>
31, 2001, to implement the projects identified in the Report Identifying Preliminary Work for the
Historical Accounting and to develop the Comprehensive Historical Accounting Plan. See
Eighth Report at 21-31.
ARGUMENT
	Defendants' summary judgment motions properly sought the Court's guidance and
refinement of the issues for Phase II when they were filed. However, the landscape of the case
has changed so significantly that the motions have been overtaken by events and their withdrawal
is appropriate. The Court's role in addressing Phase II issues will, of course, remain.6
	The February 23, 2001 decision of the Court of Appeals provided significant guidance on
Phase II that affects several of the arguments in Defendants' pending motions. For example,
while acknowledging that "the government's obligations are rooted in and outlined by the
relevant statutes and treaties," Cobell v. Norton, 240 F. 3d at 1099, the Court ruled that the 1994
Reform Act did not create Defendant's fiduciary duties, but "reaffirmed and clarified preexisting
duties "id at 1100. The Court of Appeals also clarified that Interior must provide an accounting
for "all funds, irrespective of when they were deposited (or at least so long as they were
deposited after the Act of June 24, 1938)." j~ at 1102.
	Regarding the methodology for the historical accounting, the Court of Appeals held that
decisions such as "how the [historical] accounting would be conducted, and whether certain
	6 Indeed, we anticipate that the Court will have a significant role in providing guidance
on the historical accounting. As explained in the Eighth Report, OHTA is completing its
accounting work on approximately 8,400 judgment accounts representing a total of $30.6
million. See Eighth Report at 23-24. We anticipate that the results of that work will be
presented to the Court for review shortly. Moreover, we expect to seek the Court's guidance on
issues relating to the scope of the accounting before the Comprehensive Plan is issued.
6
<< COB0000009 >>
accounting methods, such as statistical sampling or something else would be appropriate. . . . are
properly left in the hands of administrative agencies." Id. at 1104. The Court cautioned,
however, that "[c]laiming the rule of administrator. . . does not absolve the government of its
enforceable obligations to the IlITvl trust beneficiaries." Id. With regard to future proceedings,
the Court of Appeals determined that it was premature to nile on the precise scope of the District
Court's planned proceedings until the District Court undertakes the second phase of the trial and
specific objections to its actions or jurisdiction are brought, but presumed that "the district court
plans to wait until a proper accounting can be performed, at which point it will assess
[Defendants'] compliance with their fiduciary obligations." Id. at 1110. Nonetheless, the Court
in dicta outlined its thinking on jurisdiction:
It remains to be seen whether in preparing to do an accounting the
Department takes steps so defective that they would necessarily
delay rather than accelerate the ultimate provision of an adequate
accounting, and the detection of such steps would fit within the
court's jurisdiction to monitor the Department's remedying of the
delay; beyond that, supervision of the Department's conduct in
preparing an accounting may well be beyond the district court's
jurisdiction. Again, however, until these proceedings have begun.
and specific objections are brought, these are questions we cannot
address.
Id.at 1110.
	The creation of OHTA is another important development since the motions were filed.
On July 10, 2001, the Secretary created OHTA to "plan, organize, direct, and execute the
historical accounting of[IIMJ accounts." United States Department of the Interior, Secretarial
Order No. 3231. The Secretary required OHTA to prepare, within sixty days, "a comprehensive
description and timetable for completion of all steps that are needed to staff and develop a
7
<< COB0000010 >>
comprehensive plan for a historical accounting that meets the Department's fiduciary' obligations
to HIM beneficiaries." Id. In accordance with the Secretarial Order, OHTA timely issued its
Blueprint for Developing the Comprehensive 1-listorical Accounting Plan for Individual Indian
Money Accounts ("Blueprint") on September 10, 2001. The Blueprint is the initial plan for the
development of the comprehensive plan for a historical accounting ("Comprehensive Plan"). See
Blueprint at 5. The Secretarial Order also directed OHTA to identify, within 120 days, "the
preliminary work that can be done immediately," and to develop detailed plans "so that the
affected Bureaus and offices can begin the work." United States Department of the Interior,
Secretarial Order No. 3231. OJITA timely issued its Report Identifying Preliminary Work for the
Historical Accounting on November 7, 2001.
	As explained in detail below, because these developments have significant implications
for the pending partial summary judgment motions, withdrawal of the motions will best serve the
interests of the Court and the parties.
A.	First Motion
	Defendants' argument in the First Motion regarding the scope of Defendants' accounting
duty was premised on this Court's ruling that "[P]laintiffs' substantive rights are created by — and
therefore governed by — statute," Cobell v. Babbitt, 91 F. Supp. 2d at 29, and that "even though
the IIM trust is a trust.. . [P]laintiffs must point to rights granted by statute if they are to be
enforced against the government" id at 30. Defendants argued that any rights of Plaintiffs or
duties of Defendants regarding an historical accounting for IIM trust accounts must, therefore, be
found in federal statutes. Defendants argued that neither the 1994 Reform Act nor any other
statute requires the sort of historical accounting or reconciliation sought by Plaintiffs, and that the
8
<< COB0000011 >>
obligations imposed by the 1994 Reform Act are prospective obligations, albeit ones that require
historical analysis to support them. See Defs.' First Motion at 1; Defs.' Memo. in Supp. of First
Motion at 23-35. Defendants also argued that Congress left to Interior the task of defining the
scope and extent of the historical effort, keeping in mind considerations such as feasibility, cost,
and the interests of the JIM beneficiaries,7 Defs.' First Motion at 1-2; Defs.' Memo. in Supp. of
First Motion at 24, but recognized that "[a] ruling by the Court of Appeals. . . regarding the
appropriate roles of the agency and the reviewing court with regard to Interior's obligation to
address pre-1994 Reform Act transactions (historical transactions) would be 'controlling."'
Defs.' Memo. in Supp. of First Motion at 3.
	The Court of Appeals subsequently observed that "'the government's fiduciary
responsibilities necessarily depend on the substantive laws creating those obligations,"' Cobell v.
Norton, 240 F.3d at 1098-99 (quoting Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482
(D.C. Cir. 1995)), but held that the 1994 Reform Act "reaffirmed and clarified preexisting duties;
it did not create them.. .. [and] did not define and limit the extent of [Defendants'] obligations."
Id. at 1100. The Court of Appeals decision obviously affects the premise of Defendants'
argument that their accounting duty is defined solely by the 1994 Reform Act.8
	~	Congress directed Interior to "develop a detailed plan for the [accounting] methodology
it adopts, its costs and benefits, and the degree of confidence that can be placed on the likely
results." H.R. Conf. Rep. No. 106-914, at 150 (2000).
	~	Indeed, the Court of Appeals stated that "[t]he fundamental problems with [Defendants'
claims on appeal] is the premise that their duties are solely defined by the 1994 Act." Cobell v.
Norton, 240 F.3d at 1100.
9
<< COB0000012 >>
	Thc Court of Appeals also held that decisions as to "how the accounting w[ill] be
conducted" are "properly left in the hands of administrative agencies."9 Id. at 11 04. See
Blueprint at 14-1 7. This Court will necessarily review the decisions made by Interior regarding
the historical accounting when it "assessliesi [Defendants'] compliance with their fiduciary
obligations." Cobell v. Norton, 240 F.3d at 1110. Thus, in light of the guidance provided by the
Court of Appeals and the availability of review by this Court of Interior's decisions regarding the
historical accounting or the provision of guidance in the course of making such decisions,
Defendants' argument in the First Motion regarding the statutory obligations imposed by the
1994 Reform Act and other federal statutes should not be decided by the Court at this time.
	Defendants' second argument in the First Motion — that Plaintiffs' claim for a
"correction~~ or "restatement" of account balances cannot be granted in this Court — also need not
be decided at this time. In Plaintiffs' Response To Defendants' Motion For Partial Summary
Judgment On Plaintiffs' Claims For An Accounting (JfL[M Accounts, Plaintiffs assert that
Defendants are confusing "the accounting Plaintiffs seek" with "what may be an outgrowth of
that accounting." Pls.' Resp. to First Motion at 26 (emphasis in original). Plaintiffs state:
	~	In his September 28, 2001 Opinion and Order addressing the impact of the Court of
Appeals decision on the scope of discovery, the Special Master noted that, in light of the Circuit
Court's determination that decisions as to how to conduct the accounting are properly left in the
hands of the Defendants, and "the Circuit's general admonition to the District Court to remain
'mindful' of its jurisdiction, it appears that if there is any arena within which defendant agencies
might be expected to exercise their discretion and expertise, it should be in the choice and
implementation of an accounting method." Sept. 28, 2001 Opinion and Order of Special Master
(filed Oct. 1, 2001) at 13-14. The Special Master added that "[p]ermitting the agencies to
formulate their own methodology without subjecting every nuance of their decision-making
process to inspection and challenge is ultimately in the interest of the plaintiff class, insofar as it
should expedite the ultimate resolution in this case." Id. at 14.
10
<< COB0000013 >>
After the accounting is performed and information is revealed,
there may be certain additional relief emanating from the
knowledge Icarned that this Court can grant. There may very well
be information that points to relief that this Court cannot grant.
But that discussion is purely speculative and premature, because all
[P]laintiffs currently seek is the first step — the garnering of the
necessary information through enforcing their right to an
accounting — an action that seeks specific relief with obvious
independent value.
Id. at 28-29. Inasmuch as Plaintiffs represent that they are seeking only an accounting at this
time, not a "correction" or "restatement" of balances, the Court need not address the issue at this
time.'0
B.	Second Motion
	Defendants' Second Motion sought summary judgment that neither the 1994 Reform Act
nor any other authority requires Defendants to account for funds never received by the United
States, such as funds paid by lessees directly to the allotment owners. Defendants argued that the
plain language and the structure of the 1994 Reform Act establish that the accounting obligations
apply only to funds "held in trust" and "deposited or invested pursuant to the Act of June 24,
1938 (25 U.S.C. § 162a)." Defs.' Second Motion at 11-16(quoting25 U.S.C. § 401 1(a)).
Defendants also argued that, even if reference to common law is warranted, case law reveals that
no fiduciary duty attaches to funds that are never "held" by, "deposited or invested" by, or
controlled by Defendants. Id. at 16-18.
	While the Court of Appeals' decision suggests that analysis of the "direct pay" issue
cannot stop at the language and structure of the 1994 Reform Act as the Second Motion
~	This Court has already stricken from Plaintiffs' complaint all references that could be
interpreted to seek an infusion of cash into the IIM accounts. See Cobell v. Babbitt, 30 F. Supp.
2d 24,40 n.18 (D.D.C. 1998).
11
<< COB0000014 >>
contends. Defendants' argument that Indian trust principles at common law do not attach a
fiduciary duty unless the government "takes on or has control or supervision over tribal monies
or properties," see Second Motion at 16 (quoting Mitchell 11, 463 U.S. at 225), is unaffected by
the Court of Appeals' ruling. While we anticipate that the "direct pay" issue will, in any event,
require review by the Court, either in the first instance or after the agency makes an initial
decision, the issue must be reformulated in light of the Court of Appeals decision and the
creation of OHTA. Accordingly, the Second Motion should also be withdrawn.
C.	Third Motion
	Like thc First Motion, Dcfcndants' Third Motion is prcmiscd on the argument that
Defendants' duties are defined exclusively by statute. In the Third Motion, Defendants argued
that, prior to 1951. Congress defined the government's obligation to account for individual
Indian monies in the Act of March 3. 1817. the Act of July 31, 1894, and the Budget and
Accounting Act of 1921.11 Defendants also argued that regulations and formal opinions issued
by Interior, the Department of the Treasury ("Treasury"), and the General Accounting Office
("GAO") demonstrate that these agencies interpreted these statutes as setting the standard for
accounting for individual Indian monies prior to 1951. Ders Memo. In Supp. of Third Motion at
22-27.	Accordingly, Defendants sought summary judgment that any obligation to account for
transactions prior to 1951 could be satisfied by demonstrating compliance with these statutes. Id.
	'~ Each of these statutes established settlement procedures for government accounts,
including Indian trust accounts. These statutes are discussed at length in Defendants'
Memorandum in Support of the Third Motion and the exhibits referenced therein. See Defs.'
Memo. in Support of Third Motion at 4-20 (and referenced exhibits).
12
<< COB0000015 >>
	Defendants further argued that all available records indicate that. until at least 1951, the
government acted in accordance with the accounting requirements established by Congress)2 Id.
at 27-32, In support of this argument, Defendants submitted annual reports from Treasury,
Interior, and GAO showing that Interior subjected all of the accounts of its disbursing agents to
the settlement procedures required by the applicable statutes. See id. at 27-29 (and referenced
exhibits). Defendants submitted documentation fi-om the named plaintiffs' accounts
12 Defendants are aware that during the contempt proceedings currently underway the
Court inquired about the status of Defendants' partial summary judgment motions in light of an
August 27, 1999 letter from the Principal Assistant Comptroller General to John Berry, then the
Assistant Secretaty for Policy, Management and Budget at Interior. The letter contains the
following statements:
Over the past several weeks, GAO staff have had numerous
telephone conversations with members of your staff and attorneys
from the Justice Department, as well as a meeting with Treasury
officials, to answer questions and share infonnation. In response to
questions, we have explained that our records do not establish that
GAO conducted a "final" GAO comprehensive audit of IIM
accounts, nor do they establish any regular practice of auditing JIM
accounts. We have referred the staff of Interior and Treasury to
books and reports that might be of assistance in generally
explaining GAO's pre-1950 standards and auditing procedures and
its evolution from an agency conducting strict voucher reviews and
audits to one largely engaged in government program reviews.
Letter from Gene L. Dodaro, Principal Assistant Comptroller General, to John Berry, Assistant
Secretary for Policy, Management and Budget, Department of the Interior (Aug. 27, 1999).
	The statement that GAO records "do not establish that GAO conducted a 'final' GAO
comprehensive audit of lIM accounts" or "any regular practice of auditing IIM accounts" does
not appear relevant to the argument made in Defendants' Third Motion. Defendants did not
argue that GAO conducted a "final GAO comprehensive audit of LIM accounts," or that GAO
had any "regular practice of auditing lTN/I accounts;" rather, they argued that relevant statutes in
effect prior to 1951 defined Defendants' accounting duty, and that Defendants complied with
those statutes. The evidence submitted with the Third Motion demonstrates Defendants'
compliance with the relevant statutes.
13
<< COB0000016 >>
demonstrating that the records of the disbursing agents were checked and corrections made when
necessary to the accounts in accordance with the statutory procedures. See id. at Ex. 12
(SEALED EXHTBIT). Defendants attached correspondence indicating that the records of banks
were also checked and audited as part of this procedure. See Id. at Exs. 10, 11 (SEALED
EXHIBITS). Finally, Defendants attached the declaration of Frank Sapienza, Director of the
Indian Trust Accounting Division, who has worked for over twenty years with Treasury, GAO,
and Interior records relating to accounting for Indian funds and has significant experience with
the records of the settled accounts of Indian disbursing agents. Mr. Sapienza declared that the
accounts of Indian disbursing agents were settled in accordance with the procedures set forth in
the Act of March 3, 1817, the Act of July 31, 1894, and the Budget and Accounting Act of 1920.
See id. at 30-31 &Ex. 7.
However, the ruling by the Court of Appeals that Defendants' obligations, while "rooted
in and outlined by the relevant statutes and treaties, . . . are largely defined in traditional equitable
terms," id. at 1099, and that courts "must infer that Congress intended to impose on trustees
traditional fiduciary duties unless Congress has unequivocally expressed an intent to the
contrary," id., undermines the premise of the Third Motion that the government's trust duties
were defined exclusively by the applicable statutes during this period.'3 That is not to say the
settlement of accounts process undertaken by Treasury and GAO in accordance with these
13 Nonetheless, as this Court observed, "'the [g]overmnent is simply not in the position
of a private litigant or private party under traditional rules of common law or statute."' Cobell v.
Babbitt, 91 F. Supp. 2d 1, 29 (D.D.C. 1999) (quoting Nevada v. United States, 463 LT.S. 110,142
(1983)).
14
<< COB0000017 >>
statutes xviii be irrelevant in providing JIM account holders with an historical accounting.'4
Tndeed, OHTA's Blueprint states that Ol-ITA is researching the prior audits and settlements by
Treasury and GAO see Blueprint at 10, and that the Comprehensive Plan will determine the
extent, if any, to which Interior will rely on the results of these settled accounts in the historical
accounting:
Before 1951, accounts of the United States were "settled" by the
Department of the Treasury (until 1921), and then by the U.S.
General Accounting Office (until 1951). Records indicate that all
accounts managed by Indian Disbursing Agents, which included
TIM funds, were initially audited by the Bureau of Indian Affairs
and its predecessor agencies, and then subjected to a second audit
and "settled" by Treasury or General Accounting Office auditors,
who relied on contemporaneous ledgers and receipts. The
Comprehensive Plan will determine to what extent, if any, the
Department will rely on the results of these already settled accounts
in the rendition of the historical accounting.
Blueprint at 16. This procedure comports with the Court of Appeals' determination that
decisions as to how the accounting will be conducted are "properly lefl in the hands of
administrative agencies." Cobell v. Norton, 240 F.3d at 1104. Of course, this Court will have
the opportunity to review the decisions made by Interior regarding the Treasury and GAO
settlement of accounts.
	"~ Plaintiffs make this point in their opposition brief: "Documents supporting settlement
of the accounts of individual accountable officers may lead to the discovery of additional
evidence and, ultimately, they may be of assistance in providing plaintiffs with a full and
complete accounting of the Individual Indian Trust." Plaintiffs' Opposition To Defendants'
Third Phase II Motion For Partial Summary Judgment (Re: Settlement Of Accounts By Treasury
And GAO) at 20.
15
<< COB0000018 >>
CONCLUSION
	For the reasons set forth above, Defendants request that the Court permit them to
withdraw their three pending motions for partial surnrnaryjudgrnent. In the event the Court does
not permit withdrawal of the motions, Defendants respectfully request the opportunity to file
supplemental briefs to address the effect of subsequent events on the arguments made in the
motions.
Dated: February 1, 2002	Respectfully submitted,
ROBERT D. McCALLtTM, JR.
	Assistant Attorney General
	STUART E. SCIIWFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
	SANDRA P SPOONER
D.C. Ba~ No. 261495
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
CYNTHIA L. ALEXAM)ER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. MeCartihy	Brian Ferrell
Department of the Interior	Department of the Treasury
Office of the Solicitor	Office of the General Counsel
16
<< COB0000019 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPlON COBELL, et aL,	)
		)
	Plaintiffs,	)
		)
	v.	)	CaseNo. I:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior, ~ ab,)
		)
	Defendants.	)
__________________________________________________________________________________________ )
ORDER
	Upon consideration of Defendants' Motion To Withdraw Three Motions For Partial
Summary Judgment and Plaintiffs' Response, it is hereby
	ORDERED that Defendants' motion is GRANTED, and the following motions are
withdrawn:
	(1)	Defendants' Motion For Partial Summary Judgment On Plaintiffs' Claim For An
Historical Accounting of JIM Accounts, filed on March 27, 2000;
	(2)	Defendants' Second Phase II Motion For Partial Summary Judgment (Re: Funds Not
Deposited Or Invested Pursuant To The Act Of June 24, 1938). filed on May 12, 2000; and
	(3)	Defendants' Third Phase II Motion For Partial Summary Judgment (Re: Settlement Of
Accounts By Treasury And GAO), filed on September 19, 2000.
	SO ORDERED this	day of	, 2002.
	ROYCE C. LAMBERTH
United States District Judge
<< COB0000020 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on February 1, 2002 1 served the foregoing
Defendants' Motion to Withdraw Three Motions for Partial Summary Judgment and
Memorandum in Support of Defendants' Motion to Withdraw Three Motions for Partial
Summary Judgment by facsimile upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
And by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
By Fax February 1, 2002 and
By Hand Monday, February 4, 2002	By Hand Monday, February 4, 2002
Alan L. Balaran, Esq.	Joseph S. Kieffer, III
Special Master	Court Monitor
1717 Pennsylvania Ave., N.W.	420 - 7th Street, N.W.
12th Floor	Apartment 705
Washington, D.C. 20006	Washington, D.C. 20004
(202) 986-8477