IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ MOTION TO RECONSIDER 
THE OCTOBER 22, 2004 MEMORANDUM OPINION 
BACKGROUND 
On October 22, 2004, the Court concluded that "the Secretary, in a fit of pique and 
perhaps anger at both the Court and the plaintiffs for the issuance of the September 29 Order, 
simply retaliated against the Indian beneficiaries under the thin disguise of a preposterous and 
facially false 'interpretation' of the Court's Order." Cobell v. Norton, 224 F.R.D. 266, 271 
(D.D.C. 2004). The Court cited no evidence for this conclusion; no such evidence exists. In the 
October 22, 2004 Memorandum Opinion, the Court also made several statements of fact – 
without citation to evidence – regarding actions supposedly taken by the Secretary and the 
Department of the Interior in the wake of the September 29, 2004 Order, which are also 
unsupported by facts presented to the Court by the parties. See id. at 270-71. 
The Court's conclusions and findings in the October 22 Memorandum Opinion related to 
so-called retaliation were not used to support the October 22 Order which accompanied the 
Memorandum Opinion and are thus dicta and not the law of the case in these proceedings. If the 
past is a faithful guide, however, the Court's conclusions regarding retaliation will become the
"lore" of the case, and Plaintiffs will now routinely cite the Court's language about retaliation in 
most of their papers, as if it were conclusively established. Indeed, unfortunately, the Court itself 
has already cited these "findings" as if they were true. See Cobell v. Norton, 2004 WL 2603555, 
at *11 n.2 (D.D.C. Nov. 17, 2004). 
Because the Court cited no evidence, Defendants do not know what information the Court 
relied upon in making its conclusions. Nonetheless, the Court is mistaken. Because the Court 
has misunderstood the position and actions of Defendants, the Court should reconsider the 
statements in the October 22, 2004 Memorandum Opinion related to its findings of retaliation.1 
In any event, a finding of retaliation should not be made without consideration of admissible 
evidence from all parties.2 
ARGUMENT 
JUSTICE REQUIRES THAT THE COURT RECONSIDER ITS UNSUPPORTED 
STATEMENTS REGARDING RETALIATION 
Standards on Motion for Reconsideration A. 
Federal Rule of Civil Procedure 54(b) "governs reconsideration of orders that do not 
constitute final judgments in a case." Cobell, 224 F.R.D. at 271. The Court has concluded that it 
"will adhere to the 'as justice requires' standard for determining whether to grant reconsideration 
of an interlocutory order under Rule 54(b)." Id. at 272. Application of this standard "amounts to 
1/ Defendants are not moving, at this time, to reconsider the October 22, 2004 Order, or the 
balance of the October 22, 2004 Memorandum Opinion, but merely ask the Court to eliminate 
the three unfounded paragraphs of the Memorandum Opinion that begin with "It came to the 
Court's attention . . . " and end with "the Secretary's motive for her bad faith interpretation and 
retaliation passes understanding." 224 F.R.D. at 270-71. 
2/ Plaintiffs' counsel informed Defendants' counsel that Plaintiffs intend to oppose this Motion. 
2
determining, within the Court's discretion, whether reconsideration is necessary under the 
relevant circumstances." Id. 
The Court noted that there "does not seem to be any real distinction" between the "as 
justice requires" standard and that employed by other courts, such as the one in Neal v. 
Honeywell, 1996 WL 627616 (N.D. Ill. Oct. 25, 1996). Cobell, 224 F.R.D. at 272. In Neal, the 
court concluded that a motion for reconsideration is appropriate where "the Court has patently 
misunderstood a party, or has made a decision outside the adversarial issues presented to the 
Court by the parties, or has made an error not of reasoning but of apprehension." Neal, 1996 WL 
627616, at *2-3 (quoting Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 
1191 (7th Cir. 1990)). In its October 22 Memorandum Opinion, the Court revealed that it has 
"patently misunderstood" the positions and actions of Defendants regarding the interpretation and 
implementation of the Court's September 29, 2004 Order. The Court's errors were not mistakes 
of reasoning, but rather were mistakes of "apprehension." As discussed below, the information 
provided to the Court simply does not support the facts as discussed by the Court. 
Moreover, the issue of "retaliation" is outside the adversarial issues presented to the Court 
in the October 22 Order and thus unnecessary. It was not relied upon by the Court to support any 
of the relief provided in the October 22 Order accompanying the Memorandum Opinion. Indeed 
it was not relevant to any of the other matters discussed in the Memorandum Opinion. The 
Court's conclusions on retaliation are thus dicta, and might simply be ignored as improvident, but 
without application to further proceedings in the case. In this case, however, such dicta become 
part of the "lore" of the case which Plaintiffs cite in almost all future filings as evidence of 
3
wrongdoing. As mentioned above, even the Court itself has already cited the retaliation dicta 
from the October 22 Memorandum Opinion as if it were established. 
Under these circumstances, the Court should reconsider the three paragraphs in the 
October 22 Memorandum Opinion which include discussion of the supposed "retaliation" and 
remove the inaccurate dicta. 
B. Defendants' Interpretations of the September 29 Order Do Not Show 
Retaliation 
In the October 22 Memorandum Opinion, the Court derides Defendants' interpretations of 
the September 29 Order as "infantile, and frankly ridiculous." 224 F.R.D. at 270. But this 
ignores that the September 29 Order required immediate interpretation by Defendants in at least 
three areas.3 The first two related to the scope of the Court's September 29 Order. First, when 
the Court forbade all communications between the Interior Defendants and members of the 
Plaintiff class until a Court-approved notice was included with the communication,4 did the 
3/ As Defendants sought to implement the Court's Order it became apparent that several 
additional practical ambiguities existed. Defendants then sought guidance from the Court on 
those areas also. 
4/ The entire relevant paragraph of the September 29 Order read as follows, until clarified by the 
October 1 Order: 
ORDERED that henceforth, communications between the Interior defendants, their 
agents, representatives, employees, officers, and counsel and members of the plaintiff 
class may proceed only if a Court-approved version of the above-described notice is 
conspicuously displayed on such communications and then only between the Interior 
defendants, their agents, representatives, officers, and counsel and plaintiffs' counsel 
unless the class member with whom communication is sought has waived his or her right 
to consult class counsel, in which case communication may proceed between the Interior 
defendants, their agents, representatives, employees, officers, and counsel and the 
individual class member. 
September 29, 2004 Order at 3. 
4
Order mean what it literally said and all communications were prohibited, or, rather, did the 
Court intend it to mean that the prohibition on communications should be restricted to those 
regarding the sale, exchange, transfer, or conversion of Indian trust land? Second, even assuming 
that the communications ban was limited to land sales, did the Order really mean all 
communications related to land sales, or rather, did the Court intend that sending a check related 
to a land sale – although technically a "communication" – was exempt from the Court's 
communication ban? 
On the first issue, Defendants decided that it would be unwise not to interpret the 
September 29 Order literally, without seeking the Court's guidance.5 Therefore, on September 
30, 2004, less than 24 hours after the September 29 Order was issued, they sought a hearing to 
obtain clarification. See Defendants' Request for Emergency Status Conference (September 30, 
2004). After a status conference on October 1, 2004, the Court modified its September 29 Order 
to clarify that the scope of its ban on communications was limited to land sales. See October 1, 
2004 Order. 
As to the second interpretation issue, Defendants were in an exceedingly difficult position 
on September 30, 2004. Sending a check to a class member was obviously a "communication" 
with a beneficiary and might be interpreted as banned by the straightforward language of the 
September 29 Order. In a preliminary exchange of internal, deliberative, pre-decisional emails 
5/ Given Plaintiffs' penchant for threatening and seeking contempt against a wide array of 
government officials, caution by such officials in interpreting an order in possible derogation of 
its literal language is not surprising. 
5
among managers that were provided to the Court by Plaintiffs,6 these managers pointed out that 
one possible and straightforward interpretation of the September 29 Order might include a ban on 
checks. See Email from Ross Swimmer to OST senior managers (7:54 a.m., September 30, 
2004) (attached as Exhibit 1);7 Email from Donna Erwin (1:26 p.m., September 30, 2004) 
(attached as Exhibit 2).8 Counsel for Defendants advised the Court at the October 1 status 
conference that these emails were "only one page in a chain of e-mails in which personnel within 
the Office of Trustee are discussing the possible meanings of Your Honor's order . . . ." October 
1, 2004, Tr. at 9:23-10:1. 
While trying to sort out the meaning of the Court's Order, the Secretary affirmatively 
decided that no checks would be withheld and that Defendants would confirm with the Court at 
the October 1 status conference that the Court did not intend to include the mailing of a check 
within the ambit of a banned "communication." Counsel for Defendants repeatedly informed the 
Court at the October 1 hearing that by order of the Secretary checks were not to be withheld. 
See, e.g., October 1, 2004, Tr. at 9:13 ("The checks are not being withheld."); October 1, 2004, 
Tr. at 16:5-8 ("I have inquired. I have met with the Secretary of the Interior. She has decided 
that checks will not be delayed. There is no indication that checks are being held up."); October 
1, 2004, Tr. at 32:4-6 ("I was in the office of the Interior yesterday when the Secretary 
6/ Defendants do not know who revealed these confidential deliberations to Plaintiffs, but they 
were not provided officially by Interior or Interior's counsel. 
7/ The September 30 Swimmer email was attached as an exhibit to Plaintiffs [sic] Request for 
Emergency Status Call to Prevent Further Retaliation To Individual Indian Trust Beneficiaries 
(September 30, 2004). 
8/ The September 30 Erwin email was provided to the Court by Plaintiffs' attorneys at the 
October 1 status conference. 
6
determined that under no circumstances would your order stop the payment of checks in the 
ordinary course."). At the October 1 status conference, the Court upheld the Secretary's 
interpretation and clarified that checks should not be withheld. See, e.g., October 1, 2004, Tr, 
17:3-4 ("If it's a question of sending checks, I'm not stopping any sending of any checks and I 
never have"). 
Interior has provided five official "notices" – as opposed to internal deliberations amongst 
managers – to its employees and representatives about how the September 29 Order (as clarified 
on October 1) and the October 22 Order (as clarified on November 17) are to be interpreted and 
implemented with regard to communications with class members. The Court has been given 
copies of all five of these notices.9 None of these notices provided that the Court's orders should 
be interpreted as requiring the withholding of checks. Indeed, the Third Notice (from October 8, 
2004) explicitly clarified that the Court's orders did not "affect our normal processes of receiving 
payment checks on behalf of individual Indians, the processing of those checks or the subsequent 
payment of funds to individual Indian recipients." Third Notice at 2 (attached as Exhibit 3). It 
9/ The September 30, 2004 Notice ("First Notice") was provided to the Court as an exhibit to 
Defendants' Request for Emergency Status Conference (September 30, 2004); the October 4, 
2004 Notice ("Second Notice") was provided to the Court at the October 6, 2004 status 
conference and as an exhibit to Defendants' Notice of Filing (October 12, 2004); the October 8, 
2004 Notice ("Third Notice") was provided to the Court as an exhibit to Defendants' Notice of 
Filing (October 12, 2004); the November 22, 2004 Notice ("Fourth Notice") was provided to the 
Court as an exhibit to Defendants' Notice of Filing (November 29, 2004); the December 10, 2004 
Notice ("Fifth Notice") was provided to the Court as an exhibit to Defendants' Notice of Filing 
(December 13, 2004). 
7
instructed the reader to "communicate with and reassure individual Indians that there are no 
court-related delays in processing funds." Id.10 
Parenthetically, Plaintiffs later argued that the Court-approved notice to be sent out with 
all land sales communications referred to in the September 29 Order should also be sent out with 
checks. See Plaintiffs' Comments on Defendants' November 4, 2004 Notice of Filing Proposed 
Notice and Order, at 4 (November 9, 2004). Thus, if it was "infantile" and "ridiculous" to 
conclude that sending a check might be a communication that was prohibited until the Courtapproved 
notice was created, it is one that was later shared by Plaintiffs' lawyers. After 
deliberation, however – as the Court was explicitly advised – Defendants rejected this 
interpretation and concluded, as of September 30, 2004, that the September 29 Order did not 
require the withholding of checks. 
The third issue of interpretation precipitated by the September 29 Order involved the 
interplay between the Court's December 23, 2002 Order and the September 29 Order. As the 
Court explained in its Memorandum Opinion, the September 29 Order was merely a supplement 
to the December 23, 2002 Order. September 29, 2004 Mem. Op. at 23. The Court found in the 
September 29 Memorandum Opinion that Interior had violated the December 23 Order by 
communicating with beneficiaries on matters related to land sales. September 29 Mem. Op. at 2, 
23. This legitimately raised the question of what other matters on which Interior heretofore had 
10/ At the October 6, 2004 hearing, Defendants' counsel informed the Court that the earlier 
notices had not contained information about checks because checks are mailed out centrally from 
OST, and therefore it was unnecessary to give specific notice to the field telling them not to 
withhold checks. October 6, 2004, Tr. at 15:15-16:3. The information was included in the Third 
Notice because "[i]t has also been brought to our attention that some individuals appear to be 
confused about any effect that the court's most recent Orders may have upon the payment of 
checks to individual Indians." Third Notice at 2.
8
routinely communicated with beneficiaries might, under the rationale provided in the September 
29 Memorandum Opinion, also be deemed to be in violation of the communication ban in the 
December 23 Order. 
The December 23, 2002 Order permitted ordinary course of business communications 
"because they do not purport to extinguish the rights of the class members in this litigation." 
Cobell v. Norton, 212 F.R.D. 14, 20 (D.D.C. 2002). An example of such a permitted 
communication was the distribution of quarterly statements of account, "because defendants 
possess an independent reason to send out such statements. These statements would be 
distributed anyway, regardless of the instant litigation." 212 F.R.D. at 22. Land sales had 
proceeded in the ordinary course of business for over 18 months without challenge by Plaintiffs 
and presumably in conformity with the December 23 Order. 
Upon issuance of the September 29 Order, the assumed meaning of the December 23 
Order was redefined and Defendants needed immediately to determine whether other types of 
seemingly ordinary course of business communications might similarly be deemed to violate the 
December 23, 2002 Order. To be safe, Interior tried to identify as many areas of communication 
that seemed similar to land sales. It was from this analysis that Interior identified the "items 2 
through 8" in the First Notice, sent out to its employees on September 30, 2004, that the Court 
later found objectionable in the October 22 Memorandum Opinion. See 224 F.R.D. at 270-71 
("The Secretary's addition, in her instructions promulgated to Interior on September 30, 2004, of 
items 2 through 8 on the list of subjects of communication between Interior and Indians restricted 
by this Court's Order, before seeking any clarification from the Court, is yet another example of 
how the Secretary treats these Indian beneficiaries . . . ."). Defendants tried to confirm at the 
9
October 1 status conference that communications related to the areas listed in "items 2 through 8" 
were not in violation of the December 23, 2002 Order, or its supplemental order, the September 
29, 2004 Order, see October 1, 2004, Tr. at 12:8-19, but it was not until the October 22 Order 
that the Court clarified that communications related to these items were not improper under 
either the December 23, 2002 Order or the September 29 Order. See 224 F.R.D. at 288. 
Defendants remain at risk of being found in violation of the December 23, 2002 Order, if 
Plaintiffs come forward with some other ordinary course of business communication related to a 
topic – like land sales – where the beneficiary has to make a decision and they have not yet 
received the accounting information to which they are entitled. 
Defendants did not adopt "totally bogus" interpretations of the Court's orders, or advance 
interpretations that were a "disguise" or "facially false," or act in "bad faith." 224 F.R.D. 271. 
Instead, they responded with propriety to ensure that their conduct conformed to the Court's 
interpretation of its orders. 
C. Defendants' Actions after the September 29 Order Was Issued Do Not 
Support a Finding of Retaliation 
In the October 22 Memorandum Opinion, the Court also concluded that Interior 
Defendants took certain improper actions because of their improper interpretation of the Court's 
September 29 Order. 224 F.R.D. 270-71. As discussed above, the Court is mistaken regarding 
Defendants' interpretations of the Court's orders. Furthermore, the information submitted to the 
Court does not support the statements of the Court about the actions taken by Defendants after 
the September 29 Order was issued. 
10
Shutting down the BIA/Closing field offices. In the October 22 Memorandum Opinion, 
the Court found, without citation, "that, initially, Interior felt that compliance with the September 
29, 2004 Order required Interior to shut down the Bureau of Indian Affairs entirely." 224 F.R.D. 
at 270. The Court also found, again without citation, that "[f]ield offices were closed and 
notices were affixed to their doors explaining that no business could be conducted due to this 
Court's Order of September 29, 2004 . . . ." Id. 
Perhaps the Court was simply using hyperbole, but no information submitted to the Court 
indicated that the BIA was "shut down" or that field offices were "closed." Plaintiffs supplied 
information to the Court regarding one instance in which a BIA field office in Oklahoma at the 
Anadarko Agency posted a one-page notice on its door, apparently for three business days at the 
beginning of October, indicating that: 
Due to the September 29, 2004 Cobell Court order we cannot discuss any trust 
transactions or matters at this time with members of the plaintiff class as 
determined by the federal court. All Realty and Soil and Moisture offices are 
closed for business until further notice. 
Notice, dated October 1, 2004, Anadarko Agency (attached as Exhibit 4).11 
The Anadarko Notice did not indicate that the entire agency office was closed, but rather 
only that two of its divisions, Realty and Soil & Moisture, were closed and that the employees at 
the agency could not discuss matters related to trust transactions. It specifically told the reader 
that "Business related to non-trust matters will continue." Id. 
11/ Plaintiffs gave this Notice to the Court at the October 6 status conference. Plaintiffs' counsel 
claimed that the Notice was still posted at the agency as of October 5. October 6, 2004, Tr. at 
5:17-6:2. 
11
As discussed above, this Notice was proper as of Friday, October 1, 2004, when it was 
first posted, because this was before the Court had clarified that its communications ban was 
limited to land sales matters. After Interior's Second Notice of October 4, 2004 had been 
disseminated to its employees and representatives, the Anadarko Notice would no longer have 
been proper, to the extent that it conveyed a prohibition on communications unrelated to land 
sales. However, as Defendants' counsel explained to the Court at the October 6 hearing, it takes 
time for instructions to be sent to all the employees and representatives at an agency as large as 
Interior. See October 6, 2004, Tr. at 10:10-18 (It is not surprising that it would take a certain 
amount of time for an agency of 77,000 people "to get all of the instructions. However, Interior 
began immediately after the conference on Friday [October 1], and worked over the weekend to 
draft instructions. Those instructions were reviewed and obtained legal clearance on Monday 
[October 4] ... [and] were distributed in large part on Monday."); see also October 6, 2004, Tr. at 
11:19-22 (By October 6, Interior had "contacted all of the regions, had personal phone 
conversations with all the regions, and with the 80 . . . agencies, all in an attempt to provide the 
Court's instructions to them and to provide guidance."). It is thus not surprising that the 
Anadarko Notice was posted for two extra business days after it should have been removed, or at 
least modified to reflect the guidance from the Court. At the October 6 status conference, the 
Court seemed to agree. See October 6, 2004, Tr. at 40:16-18 ("I understand that the Interior 
Department is a big department and it takes time to get the right instructions out to 
everybody . . . ."). 
The Anadarko incident does not support the Court's statements that the BIA was shut 
down or that field offices were closed, and no other evidence was provided that would support 
12
these statements. To be sure, Plaintiffs also provided the Court notice of twelve individuals who 
supposedly were told by employees at several different agency field offices during the first few 
business days of October that they could not speak with them about their IIM trust matters 
because of the Court's order.12 Eight of these twelve individuals were only referred to in code by 
their initials and thus Interior is unable to investigate whether their complaints were valid. On 
October 6, 2004, the Court directed Plaintiffs to provide the full names of complaining 
individuals so that Interior could quit "shadow boxing" and get to the truth. See October 6, 2004, 
Tr. at 18:1-2 (if Interior is not given the names of those complaining "[h]ow does that allow the 
defendants to contest the basic information?"); id. at 20:9-11 ("You can provide their names and 
affidavits to the defendants, and then they can quit shadow boxing and get the true facts."). After 
this direction from the Court, Plaintiffs revealed the names of only two beneficiaries. See 
October 8, 2004 Corrected Affidavit of Geoffrey Rempel (in which it is revealed that "FP" is 
actually Francelia Phillips); November 15, 2004 Affidavit of Geoffrey Rempel (in which it is 
12/ See October 5, 2004 Affidavit of Charlotte Buttram, a legal assistant with Plaintiffs' counsel 
(attached as an exhibit to Plaintiffs' Request for Second Emergency Status Conference – To 
Address Ongoing Retaliation Taken By Interior Secretary Gale Norton Against Individual Indian 
Trust Beneficiaries (October 5, 2004) ("Second Notice")); October 4, 2004 Affidavit of Elouise 
Cobell (attached as an exhibit to the Second Notice); October 4, 2004 Affidavit of Margaret 
Coburn (attached as an exhibit to the Second Notice); October 5, 2004 Affidavit of Geoffrey 
Rempel, an assistant to Plaintiffs' counsel (attached as an exhibit to the Second Notice); October 
5, 2004 Certification from Shirley Cain, a Turtle Mountain Tribal Court "Special 
Judge/Consultant" (attached as an exhibit to Plaintiffs' Second Notice of Supplemental 
Information Regarding Plaintiffs' Request for Second Emergency Status Conference – To 
Address Ongoing Retaliation Taken By Interior Secretary Gale Norton Against Individual Indian 
Trust Beneficiaries (October 6, 2004) ("Fourth Notice")); October 5, 2004 Affidavit of Terry 
Evans (attached as an exhibit to the Fourth Notice); October 6, 2004 Affidavit of Ruth Hargrow 
(attached as an exhibit to the Fourth Notice); October 8, 2004 Affidavit of Francelia Phillips 
(attached as an exhibit to Plaintiffs' First Notice of Supplemental Information Regarding 
Ongoing Retaliation Taken By Interior Secretary Gale Norton Against Individual Indian Trust 
Beneficiaries (October 8, 2004) ("Fifth Notice")). 
13
revealed that "CP" is Carmen Patricio). Moreover, based on Plaintiffs' submissions many of 
these beneficiaries may have been complaining that the agency officials would not talk to them 
about land sales activities – which was prohibited by the September 29 Order. 
However, even if all of the complaints produced by Plaintiffs were valid, these isolated 
incidents do not support the Court's statement in the October 22 Memorandum Opinion that the 
BIA was shut down or that field offices were closed. They would only indicate that after the 
Court's September 29 Order was clarified on October 1, it took a few business days for the 
Secretary's instructions to be received and implemented by all of the agency employees and 
representatives. The BIA was not shut down in the wake of the Court's September 29 Order. 
Field offices were not closed and signs to that effect were not posted on agency office doors. 
Replacing live telephone operators with recorded messages. The Court found, again 
without citation, that "apparently all live telephone operators were replaced with a recorded 
message of the same stripe [that no business could be conducted due to the Court's Order]." 224 
F.R.D. at 270. The Plaintiffs only provided the Court information about one instance in which a 
recorded message was left at an agency – and it was at the same Anadarko agency where the 
notice was posted to the door, as discussed above. See October 5, 2004 Affidavit of Geoffrey 
Rempel at ¶ 3 (attached as an exhibit to Plaintiffs' Second Notice). The Court's statement is also 
contradicted by the information supplied by Plaintiffs, discussed above, regarding individuals 
who complained that agency employees – live employees, not recordings – told them they could 
not speak with them about trust matters. The information provided to the Court does not support 
the Court's statement that "all" live telephone operators were replaced with recordings. Based on 
Plaintiffs' submissions, one agency had a recording, instead of a live operator, for two business 
14
days in early October before the Secretary's instructions about the appropriate meaning of the 
Court's Order had been received and implemented. 
Withholding checks. The Court also found that "the entire process by which payments 
are made to IIM account holders from lease revenues, royalties, and so forth was similarly shut 
down," and that "the tenor of the Secretary's instructions apparently led many employees to hold 
payments . . . ." 224 F.R.D. at 270. At the time that the Court wrote these statements, Plaintiffs 
had provided the Court with only one case in which a beneficiary – Francelia Phillips – claimed 
that a check was being withheld. See October 6, 2004 Affidavit of Geoffrey Rempel at ¶ 2 
(attached as an exhibit to Plaintiffs' First Notice of Supplemental Information Regarding 
Plaintiffs' Request for Second Emergency Status Conference – To Address Ongoing Retaliation 
Taken By Interior Secretary Gale Norton Against Individual Indian Trust Beneficiaries (October 
6, 2004) ("Third Notice")) (Mr. Rempel claims that he "spoke with a beneficiary (FP) who 
informed me that the BIA is withholding her trust check as a result of this Court's order."); 
October 8, 2004 Affidavit of Francelia Phillips (attached as an exhibit to Plaintiffs' Fifth Notice); 
October 19, 2004 Second Affidavit of Francelia Phillips (attached as an exhibit to Plaintiffs' 
Emergency Notice Regarding the Failure to Distribute Trust Checks (October 19, 2004) ("Sixth 
Notice")).13 Defendants supplied the Court with two declarations which conclusively establish 
13/ Plaintiffs have since provided the Court with information about another beneficiary – Carmen 
Patricio – who claims that her trust check was withheld. See November 15, 2004 Affidavit of 
Carmen Patricio (attached as an exhibit to Plaintiffs' Emergency Notice Regarding Ongoing 
Retaliation in Violation of This Court's Orders (November 15, 2004) ("Seventh Notice")). 
Defendants filed the December 14, 2004 Declaration of Nina Siquieros, see Defendants' Notice 
Regarding Plaintiffs' Emergency Notice Regarding Ongoing Retaliation in Violation of This 
Court's Orders (December 14, 2004), explaining that Ms. Patricio's trust check was not withheld 
or delayed. 
15
that, notwithstanding what Ms. Phillips may have been told – or believed – her trust check was 
processed in the ordinary course of business and was not delayed or withheld because of the 
Court's orders. See October 19, 2004 Declaration of Teala C. Walker (supplied to the Court at 
the October 19, 2004 status conference); November 18, 2004 Declaration of Michael Hackett 
(attached as an exhibit to Defendants' Notice Regarding Plaintiffs' Emergency Notice Regarding 
the Failure to Distribute Trust Checks (November 18, 2004)). 
Because IIM checks are drawn on accounts with the Department of the Treasury, OST 
prepares and regularly sends information to Treasury that identifies each check and its amount. 
See December 21, 2004 Declaration of Robert J. Winter (attached as Exhibit 5). To demonstrate 
that the issuance of the Court's September 29, 2004 Order did not disrupt the issuance of IIM 
checks, Interior compiled a report (attached to Winter Declaration) that shows the number of 
checks issued and the total amount of those checks for each day in September and October of 
2004 as well as 2003. Winter Declaration at ¶ 1. The daily averages for those two months in 
2003 are 1,730 checks totaling $576,252 and for 2004 are 1,827 checks totaling $657,311. Most 
importantly, the report shows that Interior never stopped issuing checks. For example, on 
September 30, 2004, OST issued 3,100 checks, the same day Plaintiffs allege Ross Swimmer had 
ordered that checks be stopped. Second, although the number and amount of checks fluctuates 
daily, the lower output days from 2004 match up with the lower output days from 2003. On the 
first three business days of October 2004, 763 checks were issued compared to 795 in 2003. On 
October 1, 2004, 283 checks; on the same day one year earlier, only 166. In sum, the report 
demonstrates that the Court's Order had no effect on Interior's issuance of IIM checks to class 
members. 
16
Accordingly, the information supplied to the Court does not support a finding that the IIM 
trust payment system was shut down or that any employees withheld payments. 
Statements from Interior employees that checks were being withheld. The Court also 
found that "in numerous cases, [employees told] the Indian beneficiaries that their checks were 
being withheld as a direct result of this Court's Order." 224 F.R.D. at 270. The issue of whether 
beneficiaries were told by Interior employees that their checks were going to be withheld is 
obviously conceptually distinct from whether the checks were actually withheld. But, again, 
Plaintiffs only supplied the Court with one beneficiary – the same Francelia Phillips discussed 
above – who claimed that an employee told her that her check was going to be withheld because 
of the Court's orders. See October 6, 2004 Affidavit of Geoffrey Rempel at ¶ 4 (attached as an 
exhibit to Plaintiffs' Third Notice); October 8, 2004 Affidavit of Francelia Phillips (attached as 
an exhibit to Plaintiffs' Fifth Notice). Again, Defendants informed the Court as to what actually 
occurred with regard to the processing and payment of Ms. Phillip's trust check before the Court 
issued its October 22 Memorandum Opinion. October 19, 2004, Tr. at 54:5-9 (discussing 
October 19, 2004 Declaration of Teala C. Walker); accord November 18, 2004 Declaration of 
Michael Hackett. Counsel for Defendants had previously informed the Court that if in fact Ms. 
Phillips had been told by a local agency employee that her check was being withheld or delayed 
because of the Court's orders, this employee spoke in error and was acting contrary to the official 
Interior memorandum regarding the meaning of the Court's order. See October 6, 2004, Tr. at 
13:21-14:7; id. at 15:23-24. Counsel also explained to the Court that the checks are mailed out 
centrally, not by the local agency office employee who might have made such a statement to Ms. 
Phillips in error. Id. at 15:15-16:3. 
17
In short, the one instance supplied by Plaintiffs in which a local employee may have 
mistakenly informed a beneficiary that her check was being delayed or withheld does not support 
the Court's statement in the October 22 Memorandum Opinion that in "numerous cases" 
employees were saying such things.14 
The extraordinary finding that a Cabinet-level official retaliated against IIM beneficiaries 
should only be made after consideration of admissible evidence from all parties. See, e.g., Cobell 
v. Norton, No. 03-5262, 2004 WL 2753197, at *9 (D.C. Cir. Dec. 3, 2004).15 The Court's failure 
to do so here resulted in inaccurate statements of fact in the three paragraphs of the Court's 
October 22 Memorandum Opinion. The information supplied to the Court by the parties reveals 
that the Court misunderstood Defendants' positions and misapprehended the facts. Justice 
requires that the Court reconsider its statements of fact in the October 22 Memorandum Opinion, 
and delete the offending paragraphs. 
14/ Plaintiffs also provided the Court an October 1, 2004 letter from a tribal attorney who 
indicated that he was told by a government attorney that per capita payments from a settlement 
fund – some of which would go to IIM account holders – might be delayed because of the Court's 
Order. See October 1, 2004 Letter from Bertram Hirsch to Keith Harper (supplied to the Court at 
the October 1, 2004 status conference). This, of course, was not an example of checks actually 
being delayed, but rather, in multiple hearsay fashion, that checks might be delayed. As 
Defendants' counsel informed the Court at the October 1, 2004 status conference, the checks 
would not be delayed. See October 1, 2004, Tr. at 16:24-17:1 ("I can tell the Assistant United 
States Attorney that those checks can go out when they're prepared."). Significantly, the 
Plaintiffs never later supplied any evidence that these checks were actually delayed or withheld. 
15/ Defendants are entitled to the opportunity to examine the "witnesses" presented by Plaintiffs 
and to present their own evidence refuting Plaintiffs' claims. Moreover, Plaintiffs must bear the 
burden of proof. See Cobell, 2004 WL 2753197 at *7. 
18
For these reasons, Defendants' Motion should be granted. 
Dated: December 22, 2004 
CONCLUSION 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
19
CERTIFICATE OF SERVICE 
I hereby certify that, on December 22, 2004 the foregoing Defendants' Motion to 
Reconsider the October 22, 2004 Memorandum Opinion 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
EXHIBIT 1 
Defendants’ Motion to Reconsider the 
October 22, 2004 Memorandum Opinion Here is whet we know thus far. Ross please add to this if you have any further w d 
As I have communicated to you. 
We will hold per capitas paymenls and get permission from the coun on notice to be enclosed 
We will mail daily checks, O&G check with EOPs, EOPs only. ACH and EFT mfirmations as always 
We will take collections and post 
We will post m p t & disbursements 
We will take and post rnaintenanCe (RFM) 
Information I just mceived from Ross: 
No ILCA payments (per Margaret. ILCA has ceased making payments until they receive additional funds) 
We may take telephone airs and give iniormaiion io wak itts as big as ii k W~iiiii*hiii: mi+- 
We may not communicate unti! a Ratlce Is approved by the court oh any declsbnal btns. In other words 
we are not to communicate giving advice or asking for dedsions on assets 
We shot&! cancel any schedukd out reach meeting until further notice 
Any questions let me know Than& for aii your paiience and heip espiXiaiiy tii %\s h o t dz-9 of *e yWr. 
Donna Erwin 
Principal Deputy. 
Office of the Specia I TWee for American Indians 
5O5.816.1313 Fax-505.816.1319 
EXHIBIT 2 
Defendants' Motion to Reconsider the 
October 22,2004 Memorandum Opinion To: 
NOTICE # 3 
Agents, Representatives, Employees, Officers, and Counsel of the U.S. 
Department of the Interior Involved with Indian Trust Matters 
Communications with Class Members in Cobell v. Norton Re: 
THIS NOTICE SUPPLEMENTS ANOTHER NOTICE 
PROVIDED EARLIER THIS WEEK 
UN n w m -ri I nc ir ~ H M K n A m m r auwcb ni i n iFnT I 
In the Notice provided on Monday/Tuesday this week, the final paragraph noted 
that the court’s Order provides that communications “regarding the sale, exchange, 
transfer or conversion of any individual Indian trust land” can occur once appropriate 
notice and waiver procedures are established, but please be aware that such 
I---- -I --I-- I, -..- .--A prowuuies riave iiui .--A y e i ueeii I---.- eaic4uiiaiieu. - - A - I , l : - L - A 
In the absence of these procedures all communications with individual Indian 
class members regarding the sale, exchange, transfer or conversion of any individual 
Indian trust land is currently prohibited. 
It has come to the Department’s attention that a non-government website that 
m ~ n \ , i r l e eelnt4nrl infnrmn+inn +m I n r l i n n mfim ~n+r\i ic m~ mrran+l\i nrn\,iAinm nn i i i a y - e x , 
~ I U V I U G ~ G I G ~ L G U i i i i w i i i i a r i w i i LW iiiuiaii b w u i i r i y 13 b u i i ~ i i r i y p i w v i u i i t y ail 
“AFFIDAVIT” that some individual Indians may assume is sufficient to waive their rights 
to the court Ordered Notice and their rights to consult with class counsel. Please be 
advised that the court has not approved this or any other waiver, therefore it may 
not currently be accepted. 
The government will be working with the plaintiffs counsel and the U.S. District 
Cwr! tG ensure that the CQU!?-rS Order regarding Notice and rights to cmsu!t with c!ass 
counsel is implemented appropriately. A copy of the aforementioned affidavit is 
attached for your information. 
As described in prior notices, class members are represented by legal counsel 
(Dennis Gingold at (202) 824-1448 or Keith Harper at (202) 7854166). Should 
individual Indian class members wish to discuss or otherwise communicate on matters 
that are currently prohibited by the court’s Orders, please direct them to contact their 
class counsel. 
EXHIBIT 3 
Defendants’ Motion to Reconsider the 
October 22, 2004 Memorandum Opinion confused about any affect that the court’s most recent Orders may have upon the 
payment of checks to individual Indians. Please be advised that the court has made it 
clear that the Order does not affect our normal processes of receiving payment 
rhnekc nn hnhalf nf inrli\ridi ial Indianc tho nrnroccinn nf thnco rhprkc nr tho 
individual Indians that there is no court-related delays in processing funds. 
NOTE: In an effort to prevent further miscommunication and 
m in I I ndnrstn nd i nas . RIA Reai anal Directors and Aaencv S u ae ri n tenden ts s hou Id 
I hank you TOT your continuea patience ana assistance in compiying witn rne 
court’s Orders. The Department will continue to inform you of new developments. In 
the meantime, as noted above, you must not make any prohibited communications to a 
oresent or former holder of an IIM account. If vou have auestions about this Notice. . 202 2113 1220 P.05‘07 
To: Agents, Representatives, Employees, Officers, and Counsel of the U.S. 
Department of the Interior Involved with Indian Trust Matters 
Re: Coiiit7iiiiihiions with Class Members in Cobell v. Norton 
THIS NOTICE SUPPLEMENTS ANOTHER NOTICE 
PROVIDED EARLIER THIS WEEK 
ON THE SAME SUBJECT 
In the Notice provided on MondaylTuesday this week, the final paragraph noted 
that the court’s Order provides that cnmmunicatisns “regardhg the sale, exchange, 
transfer or conversion of any individual Indian trust land” can occur once appropriate 
notice and waiver procedures are established, but please be aware that such 
procedures have not yet been established. 
It has came to the Department‘s attention that a non-government website that 
may provide selected information to Indian country is currently providina an 
U A ~ ~ l ~ A \ # l V 9 L L - A - - ~ ” * ’ . 
The government will be working with the plaintiffs’ counsel and the U.S. District 
Cmrt t~ ensure that the court‘s Order regarding Notice and right to consult with class 
counsel is implemented appropriately. 
As described in prior notices, c!ass members are ;epieseiited by iegai counsel 
(Dennis Gingofd at (202) 824-1448 or Keith Harper at (202) 785-4166). Should 
individual Indian class members wish to discuss or othewise communicate on matters OCT-12-2004 16: 27 
2B2 213 1220 P.06107 
that are currently prohibited by the court’s Orders, please direct them to contact their 
class counsel. 
It has also been brought to our attention that some individuals appear to be 
confused about any effect that the court’s most recent Orders may have upon the 
payment of checks io inaividuai indians. Please be advised that the court has made it 
clear that the Order does not affect our normal processes of receiving payment 
checks on behalf of individual Indians, the processing of those checks or the 
subsequent payment of funds to individua! !ndian recipients. P!ease i;tllfie yoijr 
currently establlshed business practices to process Indian funds in an effective 
and expeditious manner. In addition, please communicate with and reassure 
individual Indians that there are no court-related delays in processing funds, 
NOTE: In an effort to prevent further miscornrnunicatlon and 
misunderstandings, BIA Regional Directors and Agency Superintendents should 
discuss these Instructions with their s?df membem and eommiinicaie with Tribai 
governments to ensure this information is conveyed accurately. 
Thank you for your continued patience and assistance in complying with the 
court‘s Orders. The Department will continue to inform you of new developments. In 
the meantime, as noted above, you must not make any prohibited communications to a 
present or former holder of an IIM account. If you have questions about this Notice, 
please contact either Rache! Spector ((202) 208=6029) ~r Kaniah Koi-rZieiy-Thege ((202 j 
208-51 32). 16:27 OCT-12-2004 
1. I, 
202 219 1220 P. 07*/07 
, am an individual Indian trust beneficiary, a member of the 
(state tribe or tribal affiliationj, and a member of the class in Cobell 
v. ~mm, c;~.;i~ ~etioii pis. 1:56 cv 01285 @CLj. 
2. I am also the beneficial owner of trust land, t l ~ legal description of which is 
3. I understand that the Court in Cobell v. Norton has held that "individusl Tnrlianc 
4, Nevertheless, I want to sell this land and hereby waive my right to the information that 
is required to be provided to me in the Notice that the US. District Court has included in the 
, . I - s ~ ~ p ! e m c w y m!e: :list it eimed on September 29,21iw ,. (--urcier"j "regarding the sale, 
exchange, transfer, or conversion" of individual Indian ~ N S I land. Therefore, I request that the 
District Court exclude fiom the scope of the Order the sale of trust Land described herein and 
authorize the Interior Department to communicate with me so that this sale can be completed 
without deiay. 
this day. 
I 
October 
declare under - 2004. 
penalty of perjury that the foregoing is me and correct. Executed on 
NAME EXHIBIT 4 
Defendants' Motion to Reconsider the 
October 22,2004 Memorandum Opinion N THE UNITED STATES DTSTRlCT COURT 
FOR THE DISTRZCT OF COLbTMWA 
ELOUXSE PEPION COBELL, et al., 
Plaintiffs, 
V. Case No. 1 :96CV01285 
(Judge Lamberth) 1 
i 
1 
1 
i 
) 
GALE A. NORTON, Secretary of the Interior, 
et al., 
Defendants. 
1. 
2. 
using the following infonnation and reconciliation procedures: 
3. 
Deputy Indian Services Special Disbursing Agcnt (ISSDA) for the days presented. This information is 
compared to database tables generated directly from system infomation to ensure the data is accurate. 
It is t h i s itdomation that is regularly sent to Treasury which updates their Check Payment & 
Reconciliation (CPGrR) system with specific check disbursement data. 
1 
DECLARATIOY OF ROBERT J. WETTER 
I, Robert 1. Winter, pursuant to 28 U.S.C. $ 1746, do declare as follows: 
I am thc Director of the Office of Trust Reporting and Reconciliauon at the Office of the Special 
Trustee for Amcrican Indians. My duties and responsibilities include oversight of financial reporting 
and certain reconciliation proccsses. I oversaw my staff2 preparation of the attached reporl. 
The attached report summarizing checks disbursed by date: tiumber and amount, was prepared 
Check disbursement inionnation is from the Daily Disbursement Reports (DDR) prepared by the 
Ths inionnation sent to Treasury is also verified, in total, against the SF 121911220 reports 4. 
prepared by OST and ranitled to Treaswy on a rnortlily basis. These SF 1219/1220 reports are 
prepared aid remitted independent o f the elcctronic check data (subsequently input into the CPGLR 
EXHIBIT 5 
Defendants' Motion to Reconsider the 
October 22,2004 Memorandum Opinion # 003 
12/21/2004 1S:OO FAX 5053161319 
and abusc. 
5. 
Treasury. 
6. 
7. 
PRINCIPAL DEPUTY 
systcm and reconciled by Treasury) to ensurc controls are in place to minimize the risk of fraud, waste, 
The monthly financial statmelit prcparation process also performs an independent reconciliation 
of all disbursement transactions (EFT, checks, traiisfers, and disbursements to other agencies) and 
ensiircs that the check total cquals what was repoited on the DDRs and subsequently remitted to 
Thc three independent rcconciliations delineated above, which in turn support and are supported 
by additional reconciIiations, ensure the accuracy o f the data in the atlached report. 
Finally, the data presented in this report has been reconciled to our accurate check logs and 
reviewed by two supervisory accountants prior to issuance. 
I declare under peiialty of perjury that the forcgoing is true and correct to the best of my knowledge, 
information and belie1 
Robert J. Winter I OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS 
OFFICE OF TRUST REPORTING AND RECONCILIATION 
SUMMARY OF CHECK DISBURSEMENTS FOR THE PERIOD SEPTEMBER 1,2004 THROUGH OCTOSER 29,2004 
1 Chcrk Due 
03/0 1/04 
031ouo4 
09/03/04 
0(1!07/04 
09108104 
09/09/04 
OW1 OiO4 
09/13/04 
OD/f 4/04 
09/151Od 
09:l 6!04 
#9/17104 
09:20104 
0912 1/04 
09/22/04 
09Q 3 104 
09!24/D-i 
03127/04 
09:28!04 
0919@4 
09.50f04 
i 010 I to4 
10~04/04 
10/05/04 
lO/OG/Oj 
10/07/0-1 
10106104 
I O/ 1 2/04 
I 0/1;/04 
10!14/04 
I O/I 5/04 
10/I8/04 
1011 9104 
10/20/03 
I0!21~04 
1OR2104 
IOl25104 
lOl26104 
I OI2?/04 
10QS104 
Grnnd Total 
DAILY ISSDA DISBURSEMENT REPORT 
0.0. SYMeOL 4844. CHECK SYMBOL 4844 
I Number of Checks I C x h Drdxmeiwnr Total 1 
2,708,060.02 1,315 
197 907,114.16 
477,167.7? 43 0 
237,54(J.62 
272,747.35 
-170,532.34 
422.075.90 
476,594.14 
>68,10 1.72 
2,4 16,635.55 
515.448.02 
465 
303 
1,053 
5 7s 
602 
439 
10,I)SS 
819 
672 196,056.93 
I20G 
1.544 
929 
1,675 
906 
1,256 
331.486.80 
527,488.11s 
281,061.44 
360,2ti0.16 
310,620.5j 
289,640.07 
626.830.52 
1,467J51.91 
500 
7.277 
3,100 
233 
49G.GO3.97 
70,379.66 
;0,935,05 
1 69,273.55 
136 
544 
9??,057.45 
349,919.32 
13,563.48 
1,320 
1,090 
260 
1.299 
7,695 
2,890 
:,29j 
1.423 
1,730 
1 ,G25 
S9G.953.06 
1,676.029.1 7 
Sd3,171.02 
60 I 
1,630 
1,055 
1,314 
3,61 E 
34S.849.63 
595,518.28 
3 I S,S3 7.76 
623,682.72 
299,05 1.91 
9 19,53 9.09 
2 10222.54 
252,s 1 .o: 
GS2.809.3 
i ,355,675.52 7,654 
!.595.261.83 
26,919,778.30 74,909 6 OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS 
OFFICE OF TRUST REPQRTlNG AND RECONCILIATION 
DAILY ISSDA DISBURSEMENT REPORT 
D.0 SYMBOL 4844. CHECK SYMBOL 4844 
SUMMARY OF CHECK DISBURSEMENTS FOR THE PERIOD SEPTEMBER 02.2003 THROUGH OCTOBER 31,2003 
1 Check Dare 
0W02f03 
10C 1/03 
Grmd Tnhl 
I Xumber of Chccks I C3;h Disbursement Tocl 
211s s 1.974,270.32 
149,4?2.17 
203,!E l 2 2 
155.2?1.17 
370.ZF-7.75 
Cn9.E43.22 
1,424.997 53 
651,601 mi 
I1 5,391.35 
390,619.51 
173.052.51 
: 8 0,729.59 
32,995.64 
JE,jG5.9? 
21 i.392.65 
635,734.87 
1 ,& i ;,244.63 
66s. i 05 $2 
530,447 64 
.753.259.22 
297,132.23 
!34,051,21 
132.414.63 
74,483 17 
3945'9.79 
3 4 , !99.02 
'dJ0.705.06 
432,742.29 
205,760.03 
i, i 34,142.50 
740,538.75 
1.1 73,75528 
2 52 p 7.09 
476 
72,659 S 
354,: 71.93 
560,63 I .7J 
?SI ,706.03 
359,029.31; 
?55,i35.76 
3jZ,BZZ.t;7 
706.022.13 
1,89 1,304.74 
175,804.86 
24,202,537.45 - IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
__________________________________________ 
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
GALE NORTON, Secretary of the Interior, et al., )
)
) Defendants. 
__________________________________________) 
ORDER 
This matter comes before the Court on Defendants' Motion to Reconsider The October 22, 
2004 Memorandum Opinion (Dkt. _____). Upon consideration of the Motion, the responses 
thereto, and the record in this case, it is hereby 
ORDERED that Defendants' Motion is GRANTED; 
FURTHER ORDERED that the Court's October 22, 2004 Memorandum Opinion will be 
reissued with the following three paragraphs (including footnote 3) removed: 
It came to the Court's attention that, initially, Interior felt that compliance with the 
September 29, 2004 Order required Interior to shut down the Bureau of Indian 
Affairs entirely. Field offices were closed and notices were affixed to their doors 
explaining that no business could be conducted due to this Court's Order of 
September 29, 2004; and apparently all live telephone operators were replaced 
with a recorded message of the same stripe. Most appallingly, the entire process 
by which payments are made to IIM account holders from lease revenues, 
royalties, and so forth was similarly shut down. These actions, of course, were 
taken pursuant to a deliberate, infantile, and frankly ridiculous misinterpretation of 
this Court's straightforward Order. 
Although the Secretary claims that she orally ordered that no payments to Indians 
be withheld, her initial written instructions to Interior employees were silent on the 
issue. Further, the tenor of the Secretary's instructions apparently led many 
employees to hold payments and, in numerous cases, to tell the Indian 
beneficiaries that their checks were being withheld as a direct result of this Court's
Order. As the Court forcefully explained to the Secretary's counsel at a hearing 
held by the Court on October 1, 2004, such statements were lies. The Secretary's 
addition, in her instructions promulgated to Interior on September 20, 2004, of 
items 2 through 8 on the list of subjects of communications between Interior and 
Indians restricted by this Court's Order, [FN3] before seeking any clarification 
from the Court, is yet another example of how the Secretary treats these Indian 
beneficiaries – one so far beyond the pale that it led the Court to inquire of defense 
counsel whether the Secretary had "decided to declare war on the Indians that 
brought this case[.]" Tr. at 9 (Hearing of Oct. 1, 2004). 
The Secretary's claim that she was unsure what the Court intended in its 
September 29, 2004 Order is now, as it was then, totally bogus. What is clear is 
that the Secretary, in a fit of pique and perhaps anger at both the Court and the 
plaintiffs for the issuance of the September 29 Order, simply retaliated against the 
Indian beneficiaries under the thin disguise of a preposterous and facially false 
"interpretation" of the Court's Order. That this "interpretation" was not crafted in 
good faith is clear, but the Secretary's motive for her bad faith interpretation and 
retaliation passes understanding. 
FN3. The Secretary's September 30, 2004 instructions to Interior employees 
indicated that the Secretary believed the Court's September 29, 2004 Order to 
restrict all communications between Interior and class members regarding: 
"encumbrances, leasing, lease sales, permitting, rights-of-way, and timber sales of 
or on individually-owned Indian trust land;" "the investment of trust funds in IIM 
accounts;" "estate planning, will drafting and the probate of or relating to Indian 
trust assets;" "the surveying or appraisal of trust assets;" "title to trust lands;" 
"ownership of trust funds or lands;" or "physical improvement or alteration of trust 
assets." These subjects, listed as items 2 through 8 in the Secretary's September 30 
instructions, were interpreted to fall within the ambit of the Court's September 29, 
2004 Order restricting "communications between the defendants, their agents, 
representatives, employees, officials, or counsel and members of the plaintiff class 
regarding the sale, exchange, transfer, or conversion of Indian trust land." The 
Court remains at a loss to understand how such an obviously conceptually 
bankrupt interpretation of a clearly worded Order could have been swallowed by 
so many Interior employees without objection. However, this list leaves little 
doubt why those employees had little choice but to simply shut down the Bureau 
of Indian Affairs – any words they might have exchanged with any Indian who 
walked through the door would have violated the Secretary's instructions. 
SO ORDERED. 
Date: _________ 
ROYCE C. LAMBERTH 
United States District Judge 
2
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 Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 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