TN THE UNITED STATES DISTRICT COUR 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., a 
P1 ainti ffs, 
V. Case No. 1:96CV01285 
(Judge Lamberth) 
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GALE A. NORTON, Secretary of the Interior, gt A,) 
Defendants. 
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DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE 
PORTIONS OF DEFENDANTS’ PROPOSED FINDINGS OF FACT 
AND CONCLUSIONS OF LAW FOLLOWING THE PHASE 1.5 TFUAL 
Plaintiffs’ Motion To Strike Portions Of Defendants’ Proposed Findings Of Fact And 
Conclusions Of Law Following The Phase 1.5 Trial (“Plaintiffs’ Motion to Strike”) is meritless 
and should be denied. Stripped of its unfounded and sweeping allegations of “deception” and 
“misrepresentation,” Plaintiffs’ motion seeks to strike four of Defendants’ proposed findings of 
fact pursuant to Federal Rule of Civil Procedure 12(f). which provides that ‘‘[ulpon motion made 
by a party before responding to a pleading . . . the court may order stricken from any pleading any 
insufficient defense or any redundant, imniaterial, impertinent, or scandalous matter.” Fed. R. 
Civ. P. 12(f). 
In denying Defendants’ motion to strike scandalous materials from Plaintiffs’ response to 
the Department of the Interior’s historical accounting plan, this Court stated: 
It has been observed by well respected commentators that “[tlhe 
court possesses considerable discretion in disposing of a motion to 
strike redundant, impertinent, immaterial, or scandalous matter. 
However, because motions to strike on these grounds are not 
favored, often being considered ‘time wasters,’ they usually will be denied unless the allegations have no possible relation to the 
controversy and may cause prejudice to one of the parties.” 
Cobell v. Norton, No. 96-1285,2003 WL 721477, at *I (Mar. 3,2003) (quoting 5A Charles Alan 
Wright & Arthur R. Miller, Federal Practice and Procedure 0 1382 (2d ed. 1990)). 
The proposed findings of fact Plaintiffs seek to have stricken are not “redundant, 
impertinent, immaterial, or scandalous,” they have obvious relation to the controversy, and they 
in no way prejudice the Plaintiffs. Plaintiffs’ motion is nothing more than a “time waster” and 
should be summarily denied. 
Defendants’ Proposed Findings Of Fact Paragraph 276 
Yes. That’s what I recommended yesterday, that not only a 
receiver be appointed in the form of a board that would oversee 
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Paragraph 276’ of Defendants’ proposed findings of fact does not, as Plaintiffs allege, 
contain a distortion of Mr. Homan’s testimony. To the contrary, it addresses the relevant 
portions of Mr. Homan’s opinion testimony concerning the likely ineffectiveness of a receiver 
and appropriately does not propose adoption of those portions of Mr. Homan’s testimony 
recommending reforms that are not possible under existing law. 
In his trial testimony, Mr. Homan simultaneously opined negatively on the effectiveness 
of a receiver and recommended as an alternative appointment of a national bank fiduciary to 
assume the Department of the Tnterior’s trust functions (an alternative that would require 
legislation): 
Paragraph 276 of Defendants’ proposed findings of fact states: “Also, as Plaintiffs’ 
lead expert has stated, ‘I don’t believe a receiver . . . in any way, shape, or form will ultimately 
solve the problem[.]’ Tr., May 6,2003, a.m., at 42:lO-43:lO (P. Hornan).” Defendants’ 
Proposed Findings Of Fact And Conclusions Of Law Following The Phase 1.5 Trial at 82 (Aug. 
4,2003). and monitor the true administrator or the successor trustee 
delegate, which I suggested be a large national bank fiduciary, the 
- I think that’s the only way or - the only way to truly achieve an 
independent administration is to move it out of the Department of 
the Interior. 
I don’t believe a receiver, a fiduciary still compelled to use 
government employees employed by the Bureau of Indian Affairs 
in any way, shape, or form will ultimately solve the problem 
because I think that undcr such a regime, the employees would not 
act. They would refer all decisions to whoever their supervisors 
were, knew, or forward the receiver’s information, and you simply 
can’t practically operate what is the functional equivalent of a 
banking operation in that manner. 
Alternatively, reasonable alternatives exist. There are perhaps 
more than ten national bank fiduciaries that would be able to do 
research, do a feasibility study and convert these operations in less 
than a year. They did so over and over again in similar 
circumstances with the S&L industry and the banking industry 
difficulties of the late ‘80s and early ‘90s. So the methodologies 
are current; they do so every day in mergers, large mergers that far 
exceed any - far exceed the complexity of the simple T I M trust. 
Phase 1.5 Trial Tr., May 6,2003, a.m., at 32:lO-43:lO (P. Homan). 
Thus, Mr. Homan opined that a receivership would not “solve the problem” because 
Interior’s employees would continue in their functions. Mr. Homan offered an alternative 
proposal (appointment of a national bank fiduciary to assume management of the trust), which 
Defendants did not include in their proposed findings because it is not a permissible alternative 
under existing law. Mr. Homan candidly testified the preceding day that his proposal would 
require legislation. See Phase I .5 Trial Tr., May 5,2003, p.m., at 67:5-6 (P. Homan). 
That Defendants’ proposed finding of fact did not misrepresent Mr. Homan’s testimony is 
further demonstrated by additional testimony of Mr. Homan that a traditional receivership would 
3 not solve problems in administering the ILM trust and that the application of a bank liquidation 
model used by the Resolution Trust Corporation was superior to a receivership: 
To this year I felt [the Resolution Trust Corporation Model applied 
in bank liquidations] was far superior to a receivership, because I 
think a receiver, acting in the traditional sense, would have the 
same problems, or perhaps worse problems, administering the 
operations of this Indian Trust Administration than plaintiffs [sic] 
will have, for the simple reason that subject to court sanctions, I 
don’t believe that government employees would be willing to make 
any decisions on these transactions. 
Phase 1.5 Trial Tr., May 5, 2003, pm., at 67:7-14 (P. Homan) (emphasis added). 
A proposed finding of fact regarding Mr. Homan’s proposal to use a bank liquidation 
model would not be helpful to the Court precisely because the proposal would require legislation 
and therefore is not a viable option for the Court to consider. Thus, Mr. Hornan’s opinion 
testimony regarding the efficacy of placing the individual Indian trust in the hands of a private 
entity is irrelevant. Defendants’ proposed finding of fact addressed the remaining portion of Mr. 
Homan’s testimony, which contained his opinion that a receivership to oversee the government’s 
administration of the IIM trust would not “ultimately solve the problem.”2 Phase 1.5 Trial Tr., 
May 6,2003, a.m., at 42:18-43:l (P. Homaii). Defendants’ proposed finding of fact contained no 
misrepresentation and was wholly appropriate.-’ 
As set forth in Defendants’ proposed conclusions of law, appointment of a receiver over 
Defendants’ Proposed Findings Of Fact the IIM trust is also proscribed by the Constitution. 
And Conclusions Of Law Following The Phase 1.5 Trial at 239-61 (Aug. 4,2003). 
Moreover, the testimony in question was provided in open court in the Phase 1.5 trial, 
and all of the trial transcripts are part of the record. Under these circumstances, it is difficult to 
imagine how the Court could be “misled” by Defendants’ proposed finding of fact. 
4 11. Defendants’ Proposed Findings Of Fact Paragraphs 319-321 
Plaintiffs also seek to strike paragraphs 3 19, 320, and 321 of Defendants’ proposed 
findings of fact because they describe exhibits that the Court did not accept into evidence. 
Plaintiffs fail to disclose that these paragraphs clearly stated that the Court did not admit these 
exhibits into evidence at trial. 
Paragraph 3 19 begins: 
Had the Court admitted into evidence the media articles offered by 
Defendants,[] those articles would have shown that allegations of 
Government mishandling of IIM accounts were widely publicized 
long before 1984. Although they were not admitted into evidence, 
Defendants describe them in order to further demonstrate for the 
record the significance and purpose of these exhibits. 
Defendants’ Proposed Findings Of Fact And Conclusions Of Law Following The Phase 1.5 Trial 
at 96 (Aug. 4,2003). This text contained a footnote, which stated: 
Defendants offered at trial three newspaper articles which were 
marked for identification, including the 1928 article, Now It Cun 
Be TOM, from the journal AMERICAN INDIAN LIFE (marked for 
identification as Defs.’ Ex. 282), the December, 1978 article, Suit 
Charges BIA Misappropriates Indian Funds, published in 
WASSAJA A NATIONAL NEWSPAPER OF INDIAN AMERICA (marked 
for identification as Defs.’ Ex. 283), and a November 20, 1983 
article, The New Indian Wurs - Empty Promises, Mispluced Trust, 
from the DENVER POST EMPIRE MAGAZINE, (marked for 
identification as Defs.’ Ex. 284). The Court did not admit these 
newspaper articles into evidence, apparently based upon a ruling 
that they contain hearsay. Defendants, however, did not offer the 
articles for the truth of the matters asserted in them but, rather, 
offered them merely to show pre-1984 awareness of and notice to 
the public (including Plaintiff class members) of allegations of 
mismanagement or other wrongdoing in connection with the IIM 
trust. Defendants respectfully assert that these exhibits should 
have been admitted into evidence. 
5 Thus, the paragraphs Plaintiffs seek to strike forthrightly stated that these exhibits were 
not admitted into evidence, explained that Defendants described them to further demonstrate for 
the record the significance and purpose of the exhibits, and asserted that the exhibits should have 
been admitted into evidence. The Court may or may not revisit its ruling on the admissibility of 
these exhibits, but Defendants’ proposed findings of fact are in no sense misleading. 
denied. 
Dated: September 2,2003 
CONCLUSION 
Plaintiffs’ Motion to Strike does not (and cannot) establish that paragraphs 276, 319,320, 
or 32 1 of Defendants’ proposed findings of fact are “redundant, immaterial, impertinent, or 
scandalous.” Fed. R. Civ. P. 12(f). For the reasons set forth above, Plaintiffs’ motion should be 
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 
D.C.kdr No. 261495 
Deputy Director 
JOHN T. 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 
6 IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBLA 
ELOUISE PEPION COBELL, @ &, 
Plaintiffs, 
V. Case No. 1:96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, @ d,) 
Defendants. 
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opposition thereto, it is hereby 
,2003. SO ORDERED this day of 
ORDER 
Upon consideration of Plaintiffs’ Motion to Strike Portions of Defendants’ Proposed 
Findings of Fact and Conclusions of Law Following the Phase 1.5 Trial and Defendants’ 
ORDERED that Plaintiffs’ motion is DENIED. 
ROYCE C. LAMBERTH 
United States District Judge cc: 
Sandra P. Spooner, Esq 
John T. Stemplewicz, Esq 
Cynthia L. Alexander, Esq 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 5 14-9 163 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
607 14th Street, N.W. 
Box 6 
Washington, D.C. 20005 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
I712 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 5941 7 
(406) 338-7530 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on September 2, 2003 I served the foregoing 
Defendants’ Opposition to Plaintiffs ’ Motion to Strike Portions of Defendants’ Proposed 
Findings of Fact and Conclusions of Law Following the Phase 1.5 Trial by facsimile in 
accordance with their written request of October 3 I, 2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Court’s Order of April 17,2003, 
by facsimile and by U.S. Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
Dennis M GingoId, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
By US. Mail upon: 
Elliott Levitas, Esq 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530