UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
v. 
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)
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))) 
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GALE A. NORTON, et al., 
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Defendants. 
____________________________________) 
MEMORANDUM OF THE UNITED STATES IN RESPONSE TO 
PLAINTIFFS' MOTION THAT SECRETARY NORTON BE DEEMED TO HAVE 
CONCEDED PLAINTIFFS’ MOTION OF JANUARY 13, 2004 ASSERTING 
VIOLATIONS OF COURT ORDERS 
On January 13, 2004, Plaintiffs moved for an order that Secretary Gale Norton and twelve 
non-party individuals show cause why they should not be held in civil and criminal contempt for 
alleged violations of the temporary restraining order entered June 27, 2003, the preliminary 
injunction issued July 28, 2003, and the Order of December 21, 1999. The temporary restraining 
order and the preliminary injunction addressed the security of the Department of the Interior’s 
computer systems to protect against unauthorized access to Individual Indian Trust Data (IITD) 
through the internet, and the preliminary injunction required certifications for systems housing or 
providing access to IITD which were connected to the internet. The December 21, 1999 Order 
required Defendants to file quarterly reports, and Plaintiffs alleged that certain reports were 
inaccurate to the extent that the reports discussed security of the Department of the Interior's 
information technology systems. 
Civil Action No. 96-1285 (RCL)
On January 27, 2004, the United States filed a comprehensive response (the "Response") 
opposing Plaintiffs' motion and showing that the motion was utterly baseless. Plaintiffs have 
now filed a motion requesting that Secretary Norton be deemed to have conceded Plaintiffs’ 
motion because Secretary Norton’s personal attorney did not file a second, redundant 
memorandum also showing that Plaintiffs’ motion was without merit. Plaintiffs’ motion to 
default “Citizen Norton,” and the companion motion to default eleven non-party individuals, has 
met the considerable challenge of being even more frivolous than the contempt motion itself. 
The responsive memorandum filed by the United States addressed all issues raised by Plaintiffs' 
motion, and Secretary Norton is entitled to rely on that response. Plaintiffs simply have no basis 
to claim that she had to file a separate brief in her personal capacity or risk default. Moreover, 
the motion filed by Plaintiffs is so lacking in specificity that Secretary Norton could not present 
an individual response, and Plaintiffs' assertion that she was required to do so is inconsistent with 
her due process rights. 
The Government's Response Addressed All Issues A. 
The Government's Response addressed all issues raised in Plaintiffs’ motion. The 
Response demonstrated that Plaintiffs’ contentions that one or more orders had been violated 
rested on misrepresentation and misinterpretation of four reports on which Plaintiffs relied. 
Response at 7-14, 24, 28-32. The Response demonstrated that Plaintiffs had not established that 
Defendants violated any of the orders at issue, which was sufficient to require that Plaintiffs’ 
motion be denied. Response at 14-32, 34-35. The Response also demonstrated that all of the 
orders in question were addressed solely to Defendants and, therefore, Secretary Norton and the 
twelve non-party individuals personally could not be held in civil contempt even if an order had 
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been violated. Response at 36-37. The Response also showed that Plaintiffs had not even 
attempted to fulfill their evidentiary burden to show the elements of criminal contempt. 
Response at 40-41. In sum, the Response covered every issue raised by the Plaintiffs’ contempt 
motion directed to Secretary Norton, in any capacity. The arguments made in the Government's 
brief are before the Court, and Secretary Norton may rely on them, whether or not she filed an 
additional response. 
Plaintiffs’ contention that Secretary Norton conceded the motion because her personal 
counsel did not file a one-sentence pleading adopting the Response or a longer memorandum 
echoing the Response is without merit. The argument assumes that Secretary Norton personally 
is a party to this case. That assumption is incorrect. The Court has found that Secretary Norton is 
a defendant solely in her official capacity, and that she is represented by the Department of 
Justice. Order of April 15, 2003, Exhibit 1. On September 16, 2003, the Court reiterated that 
"Defendant Norton is a party to the present suit solely in her official capacity as the Secretary of 
the Interior, not in her individual capacity." Order of September 16, 2003, Exhibit 2, quoting 
Order of April 15, 2003. The Court ordered the Clerk to return papers that had been filed on 
behalf of Secretary Norton in her personal capacity. Secretary Norton plainly was entitled to rely 
upon these orders and to treat the Plaintiffs' January 13, 2004 motion as being directed to her in 
her official capacity. The Government responded to all the allegations as to her. 
At bottom, Plaintiffs are arguing that if the Court agrees with the United States that 
Plaintiffs' motion is without merit, it should nevertheless grant Plaintiffs' motion because 
Secretary Norton did not file a separate response. Plaintiffs' contention is clearly incorrect. 
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B. Plaintiffs' Motion Lacks Sufficient Specificity to Allow or Require a Separate 
Response by Secretary Norton 
Plaintiffs’ contention that Secretary Norton should be deemed to have conceded 
contempt liability would lack merit even if the United States had not filed an opposition. As 
movants for a show cause order, Plaintiffs have an initial burden of establishing a prima facie 
case. Until they do so, Defendants and the non-party individuals are not required to do anything. 
Plaintiffs' motion fell woefully short of discharging their burden. 
As discussed in the Response, at 16 and 34, in order to require Defendants to respond to a 
charge of civil contempt, Plaintiffs have the burden of showing by clear and convincing 
evidence, that (1) a court order was in effect, (2) the order clearly and unambiguously required 
certain conduct by the respondents, and (3) the respondents failed to comply with the court's 
order. Plaintiffs' motion did not identify any order which required conduct by Secretary Norton 
in her personal capacity, and there is none. The December 21, 1999 Order (which was issued 
before she took office), the TRO and the Preliminary Injunction by their terms were directed to 
Defendants. Therefore, Plaintiffs’ motion falls by its own weight because Plaintiffs have failed 
to make the threshold showing of an order which required certain conduct by her in her personal 
capacity. 
Even if Plaintiffs had identified an order binding Gale Norton personally, Plaintiffs' 
motion was insufficient to require her, or even allow her, to present a response. Indeed, 
Plaintiffs' attempt to default her for not filing separate briefs runs afoul of due process. As noted 
in the Response, Plaintiffs failed to specify which acts taken by Secretary Norton allegedly 
violated the court orders in question. This Court has recognized that such a specification is 
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required even for civil contempt proceedings. After Plaintiffs had filed a motion accusing dozens 
of individuals of committing civil and criminal contempt, the Court directed Plaintiffs to lay out 
"individual defendant by individual defendant specifications of what the contempt proceedings 
would be for those 39 people so that they each have an opportunity to address what the evidence 
is and what you are citing against any of those 39." Transcript of March 15, 2002 Status Hearing, 
at 21:10-14. The Court concluded that "you need to specify by person so that each of them can 
respond to what the specifications would be and what the evidence would be so that each of them 
can have an opportunity to have due process." Id. at 23:7-10. Plaintiffs failed to particularize 
their allegations as to specific individuals in their January 13, 2004 motion. Accordingly, 
Plaintiffs did not meet the minimum measure of due process that this Court has already required 
for allegations of contempt. In the absence of specific allegations addressed to her personal 
behavior, Secretary Norton could neither present a written response nor show cause why she 
should not be held in contempt. 
Plaintiffs’ request that Secretary Norton be deemed to have conceded allegations that she 
committed criminal contempt is even more frivolous. First, Plaintiffs did not even attempt to 
establish the elements of criminal contempt. Criminal contempt requires an initial showing that 
evidence exists that, if believed, could establish beyond a reasonable doubt that (1) a clear and 
reasonably specific court order was in effect, (2) the order required certain conduct by a Named 
Individual, and (3) the Named Individual willfully violated the court's order. As discussed in the 
Response at 41, Plaintiffs failed to establish any of the elements. Plaintiffs’ motion did not 
specify any evidence which, if believed, would establish beyond a reasonable doubt that she 
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willfully violated any order. Until she is provided with a prima facie case of criminal contempt, 
she cannot frame a response. 
Requiring Secretary Norton to respond to charges of criminal contempt, as Plaintiffs 
request, would violate her rights of due process. The Court of Appeals made it abundantly clear 
that a criminal contempt proceeding is a criminal proceeding, and an accused is entitled to the 
full measure of due process rights guaranteed by the Constitution. Cobell v. Norton, 334 F.3d 
1128, 1147 (D.C. Cir. 2003). A person accused of criminal liability cannot be deemed to have 
conceded liability by remaining silent. 
At a minimum, Secretary Norton has a due process right to know what she is personally 
accused of, whether the accusation is civil or criminal in nature, and whether the accusation 
pertains to her official or individual capacity. Yet the Plaintiffs' January 13, 2004 motion made 
no distinction between acts allegedly constituting civil contempt and acts allegedly constituting 
criminal contempt, or between acts of Secretary Norton in her official capacity versus acts in her 
individual capacity. Thus, to the extent that Plaintiffs' January 13, 2004 motion attempts to state 
a case against Secretary Norton personally, the allegations are insufficient to allow her to 
respond, and, in any event, she would not be required to respond on risk of default, even if the 
motion had stated a case against her personally. 
Additionally, the Court must make an independent determination of whether a party 
requesting a contempt proceeding has stated a prima facie case, particularly when the party is 
alleging criminal contempt. As this Court recognized in Landmark Legal Foundation v. EPA, 
272 F. Supp. 2d 70, 77 (D.D.C. 2003): "[I]t is the court that makes the initial decision whether a 
criminal contempt proceeding should take place." Plaintiffs' effort to default Secretary Norton is 
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an improper attempt to short-circuit the contempt process, to shift the burden of proof, and to 
deprive her of her rights of due process. 
CONCLUSION 
Plainly, neither a legal nor factual basis exists for Plaintiffs' motion. For the reasons 
stated above, the Court should deny Plaintiffs’ motion and admonish Plaintiffs against filing such 
frivolous and reckless pleadings in the future.
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
MICHAEL F. HERTZ 
Director 
/s/ Dodge Wells 
Dodge Wells 
D.C. Bar No. 425194 
Tracy L. Hilmer 
D.C. Bar No. 421219 
Trial Attorneys 
Commercial Litigation Branch 
Civil Division 
P.O. Box 261 
Ben Franklin Station 
Washington, D.C. 20044 
(202) 307-0407 
February 6, 2004 DATED: 
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CERTIFICATE OF SERVICE 
I hereby certify that, on February 6, 2004 the foregoing Memorandum of the United States 
in Response to Plaintiffs' Motion That Secretary Norton Be Deemed to Have Conceded 
Plaintiffs’ Motion of January 13, 2004 Asserting Violations of Court Orders 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
__________________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
This matter comes before the Court on Plaintiffs’ Motion to Treat as Conceded Plaintiffs' 
Motion for an Order to Show Cause Why the Department of the Interior, Interior Secretary Gale 
Norton, and Her Senior Managers and Counsel, Should Not Be Held in Civil and Criminal 
Contempt for Violating Court Orders, Including the Temporary Restraining Order and 
Preliminary Injunction Entered to Protect Trust Data and Assets (January 13, 2004) with 
Respect to Citizen Norton (Dkt. # 2453). Upon consideration of the Plaintiffs’ Motion, 
Defendants’ Opposition, any Reply thereto, and the entire record of this case, it is hereby 
ORDERED that the Motion is DENIED. 
SO ORDERED. 
Date:______________ 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
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ORDER
___________________________________ 
Hon. Royce C. Lamberth 
UNITED STATES DISTRICT JUDGE 
United States District Court for the 
District of Columbia 
Case No. 1:96CV01285 
(Judge Lamberth)
cc: 
Dodge Wells 
Tracy L. Hilmer 
Sandra P. Spooner 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
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 
Fax (406) 338-7530