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IN TIlE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	)
ELOUTSE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. l:96CV01285
	)	(Judge Lamberth)
GALE NORTON, Secretary of the Interior et al.,	)
	)
Defendants.	)
----9
OPPOSITION TO PLAINTIFFS' MOTION TO AMEND THEIR MOTION
TO REOPEN TRIAL ONE IN THIS ACTION TO APPOINT A RECEIVER
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TABLE OF CONTENTS
	Page 4
TABLE OF AUTHORITIES
INTRODUCTION
ARGUMENT	2
I. THE CONSTITUTION BARS APPOINTMENT OF A RECEIVER	2
	A.	Appointrncnt Of A Receiver Would Violate The
		Appointments Clause	3
	B.	Appointment Of A Receiver Would Violate General
		Separation Of Powers Principles And The Specific
		Mandates Of Articles 1,11, And III	7
	C.	Appointment Of A Receiver Would Violate The
		Appropriations Clause	18
	TI.	THE SECRETARY'S REORGANIZATION PLAN WILL CREATE
A SINGLE, ACCO~T~L~~• •FRUST REFORM OFFICE WITh
LiNE AUTHORITY OVER INDIAN TRUST FUNCTIONS
AND OVERSIGHT BY THE SPECIAL TRUSTEE	19
CONCLUSION	21
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TABLE OF AUThORITIES
CASES
~izonav. Evans, 514 U.S. 1(1995)	17
Boothv. Clark, 58 U.S. (171-low.) 322 (1854)	11
Bowshcr v. Synar, 478 U.S. 714 (1986)	13
Buckley v. Valco, 424 U.S. 1 (1976)	4, 6, 9
City of Houston v. Department of Housing & Urban Development,
	24F.3d 1421 (D.C. Cir. 1994)	18,19
CobcIl v. Babbitt, 52 F. Supp. 2d 11 (D.D.C. 1999)	15
Cobell v. Babbitt, 91 F. Supp. 2d I (D.D.C. 1999),
	afCd, 240 F.3d 1081 (D.C. Cir. 2001)	12, 14
Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001)	2, 5
Commonwealth v. Stoute, 665 N.E.2d 93 (1996)	17
Cooperv. Aaron, 358 U.S. 1(1958)	16
Doolin Security Savings Bank v. Office of Thrift Supervision,
	139 F.3d 203 (D.C. Cir. 1998)	4
Edmond v. United States, 520 U.S. 651 (1997)	3, 4
iNS v. Chadha, 462 U.S. 919 (1983)	8
INS v. Legalization Assistance Proiect of L.A. County Federation of Labor,
	510 U.S. 1301 (O'Connor, Circuit Justice 1993)	8
INS v. Pangilinan, 486 U.S. 875 (1988)	5, 16
Jenkins v. Chief Justice of the District Court Department, 619 N.E.2d 324 (1993)	17
Luian v. Defenders of Wildlife, 504 U.S. 555 (1992)	9, 13
Minnesotay. Carter, 525 U.S. 83(1998)	17
Mistretta v. United States, 488 U.S. 361 (1989)	8, 9,10,13
Mobil Oil Corp. v. Hii~ginbotham, 436 U.S. 618 (1978)	15
ii
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	Morrison v. Olson, 487 U.S. 654 (1988)	7, 9, 10, 11, 12, 13
	Myers v. United States, 272 U.S. 52 (1926)	13
Northwest Airlines, Inc. v. Transport Workers Union ofAmerica, AfL-CIO,
	451 U.S. 77(1981)	15
Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990)	18
Printz v. United States, 521 U.S. 898 (1997)	13
Rochester Pure Waters District v. EPA, 960 F.2d 180 (D.C. Cir. 1992)	19
ExparteSiebold, 100 U.S. 371 (1879)	6
Sterling v. Stewart, 158 F.3d 1199 (11th Cir. 1998)	11
TVA v. Hill, 437 U.S. 153 (1978)	15
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987)	9
FEDERAL STATUTES
25U.S.C.§§162a(d)&4011	14
25U.S.C.§4042(a)	14
28 U.S.C. § 1361
IT.R. 103-778, at 8-9 (1994) reprinted j~ 1994 U.S.C.C.A.N. 3467, 3467-68	14
CONSTITUTIONAL PROVISIONS
U.S. Consi. art. I~ § 1	7 14
U.S. Const. art. I, § 9, ci. 7	18
U.S. Const. art. II, § 1, ci. I	7
U.S. Const. art. II, § 2, ci. 2	3, 5
U.S. Const. art. ~ § 3	8, 12
U.S. Const. art. III, § 1	7, 9
Mass. Const., pt. I, Art. XIV (1780)	17
iii
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INTRODUCTION
	In their Motion To Amend Their Motion To Reopen Trial One in This Action To Appoint
A Receiver,' Plaintiffs ask this Court to appoint a receiver to assume the duties of the Secretary
of the interior ("Secretary") "relating to the administration and management of assets of
individual Indian trust beneficiaries that have been conferred upon [hen by Congress." Pis.'
Proposed Order at ¶ 14. Relying almost exclusively on reports of the Court Monitor, which are
not evidence and are subject to de novo review,2 Plaintiffs submit that the Secretary is unfit as
trustee-delegate of individual Indian money ("IIM") trust accounts and that the Court must,
therefore, replace the Secretary with a receiver empowered to administer and manage IIM tnist
accounts and to develop and implement trust reform. See PIs.' Consolidated Mot. at 1-16.
	The relief Plaintiffs seek is beyond this Court's authority to provide because the United
States Constitution prohibits appointment of a receiver to assume the trust management and
reform duties Congress has conferred on the Secretary. In any event, as we advised the Court on
November 14, 2001, the Secretary is reorganizing the Department of the Interior ("Interior") to
improve the management of Indian trust assets. This reorganization, described in section II,
infra results from concerted efforts by Interior to create a management stnicture that can
	Plaintiffs consolidate their motion to appoint a receiver with a motion for an order to
show cause why the Interior Defendants and others should not be held in contempt. This brief
addresses only the motion to appoint a receiver; the United States Attorney will respond
separately to the motion for an order to show cause.
	2 ~ April 16, 2001 Order appointing Joseph S. Kieffer HI as Court Monitor, at ¶ 14 ("in
any proceeding before this Court, Mr. Kieffer's findings of fact shall be reviewed de novo.").
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effectively implement trust reform and eliminate problems identified by the Court, the Court
Monitor, thc Special Master and Interior.
ARGUMENT
I.	THE CONSTITUTION BARS APPOINTMENT OF A RECEIVER.
	This Court cannot, consistent with its Article III power, divest the Secretary of the Interior
of trust management and refonn duties by appointing a receiver to assume those duties.3
Although such a remedy may be available in common-law trust cases involving private parties,
Congress has bestowed statutory trust duties on the Secretary, and the Constitution prohibits this
Court from dislodging them. Shifting these duties from the Executive Branch to an officer of the
Judicial Branch ~vould contravene the Appointments Clause, general principles of separation of
powers, and Articles I, II, and 111 of the Constitution, and would be limited by the Appropriations
Clause.
	~	Although Plaintiffs' proposed order purports to exempt the Department of the Treasury
("Treasury") from the putative receiver's reach, the order would require the Secretary of the
Treasury to "cooperate with the [r]eceiver and his delegate," j~; would provide the receiver "full
and complete access to all trust property and revenues therefrom "Id at ¶ 10; and would enjoin
all defendants (including the Secretary of the Treasury) from "interfering with the custody of the
[r]eceiver over the property Land] assets. . . of the IIM trust,' id. at ¶ 20. As the D.C. Circuit
recognized, "Treasury holds and invests LIM funds at the Interior Department's direction and
provides accounting and financial management services." Cobell v. Norton, 240 F.3d 1081,
1088 (D.C. Cir. 2001). IIM trust funds rely upon the same collection, payment reconciliation,
investment, and accounting systems that are relied upon by every agency in the federal
government. In this system, Treasury's handling of IIM funds cannot be easily isolated from its
handling of any of the other funds on deposit at the Treasury. Thus, to the extent a receiver is
given control over TiM funds at the Treasury, such authority over Treasury's operations would
raise the same constitutional problems with regard to Treasury as are described in this brief with
regard to Interior. For all of the reasons that court appointment of a receiver over the trust
functions of Interior would be unconstitutional, appointment of a receiver with control over any
trust functions of the Department of the Treasury is also proscribed by the Constitution.
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A.	Appointment Of A Receiver Would Violate The Appointments Clause.
The Appointments Clause providcs:
[The Presidentj shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
U.S. Const. art. II, § 2, cI. 2. "[T]hc Appointments Clause of Article II is more than a matter of
'etiquette or protocol;' it is among the significant structural safeguards of the constitutional
scheme." Edmond v. United States, 520 U.S. 651, 659 (1997). Under this clause, courts of law
can never appoint principal officers, and can appoint inferior officers only when Congress has
explicitly vested them with power to make such appointments.
	That a receiver with the authority to manage the JIM trust system and to develop and
implement trust reform would be an officer — either principal or inferior — within the meaning of
the Appointments Clause cannot be doubted. Plaintiffs seek a receiver who would "have and
exercise the authority and powers over matters relating to the administration and management of
assets of individual Indian trust beneficiaries that have been conferred upon the Interior Secretary
by Congress." PIs.' Proposed Order at ¶ 14, These duties are those of a principal officer— the
Secretary of the Interior—appointed by the President with the advice and consent of the Senate.
An officer whose work is not "directed and supervised at some level by others who were
appointed by Presidential nomination with the advice and consent of the Senate" is a principal
officer. See Edmond, 520 U.S. at 662-63. Because the Secretary reports directly to the
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Prcsident. she is a principal officer. As such, the Appointments Clause prohibits any individual
who is not appointed by the President with the advice and consent of the Senate from assuming
her duties. A receiver appointed by the Court, therofore, may not assume the duties of the
Secretary.
	But even if a receiver were not a principal officer, he or she would clearly be an inferior
officer who exercises significant authority pursuant to the laws of the United States. A
government official is at least an inferior officer if he or she "exercis[esj significant authority
pursuant to the laws of the United States." Buckleyv. Valeo, 424 U.S. 1, 126 (1976); see also
Edmond, 520 U.S. at 662 ("The exercise of 'significant authority pursuant to the laws of the
United States' marks . . . for Appointments Clause purposes . . . the line between officer and
nonofficer."); Doolin Sec. Say. Bank v. Office of Thrifi Supe~ision, 139 F.3d 203, 205 (D.C.
Cir. 1998) ("fAn ofliciall exercisfingi 'significant authority pursuant to the laws of the United
States' . . . undoubtedly qualifies as an 'Officer' under the Constitution, and is thereby subject to
the Appointments Clause. . . of the Constitution."). Among the specific duties contemplated by
the Plaintiffs for the receiver are: (I) taking possession and custody of all property, income,
revenue, investments, books, and records of the JIM Trust; (2) directing the "function[s], right[sJ
[and] power[s]" of "the Interior defendants and all agents and employees thereof' with respect to
the IiM Tnist; and (3) proposing, developing and executing a plan of tnist reform. PIs.' Proposed
Order at ¶¶ 4-6. The receiver's proposed authority could hardly be more significant.
	The Court need not decide whether a court-appointed receiver would be a principal or
inferior officer because, either way, the appointment would violate the Appointments Clause. If
the receiver is a principal officer, the clause mandates that he or she be nominated by the
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President and confirmed by (he Senate. If the rcccivcr is an inferior officer, thc Appointments
Clause permits a court to appoint him or her only if "Congress [has] by Law vest[ed] the
Appoii~tment... in thc Courts of Law." U.S. Const. art. II, § 2, ci. 2. Accordingly, courts can
appoint inferior officers only to the extent that Congress has vested such power in them through
express statutory authority.
	Plaintiffs point to no statutory authority vesting appointment of a receiver to administer
and manage the JIM trust system in the courts of law — indeed thcy ignore the Appointments
Clause altogethcr. Nor can they point to any statutory authority. Not only has Congress not
granted the federal courts authority to appoint a receiver to administer and manage the IIM trust
system, it has not granted the courts authority to appoint receivers to assume operation of any
Executive Branch agencies. Cf. 28 U.S.C. § 1361 (authorizing mandamus relief against officers
and agencies but not the appointment of receivers to assume their duties). Because Congress has
enacted no statute vesting the appointment of a receiver over an Executive Branch agency in the
courts of law, the appointment of a receiver to administer and manage the JIM trust system is
inipermissible under the Appointments Clause of the Constitution.
	Plaintiffs' argument that this Court's inherent equitable or remedial powers permit the
Court to appoint a receiver is misguided. While, as a general rule, "'the scope of a district
court's equitable powers to remedy past wrongs is broad,"' Cobell v. Norton, 240 F.3d 1081,
1108 (D.C. Cir. 2001) (quoting Swarm v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15
(1971)), a court's equitable powers may not be exercised in contravention of the Constitution.
INS v. Pangilinan, 486 U.S. 875, 883 (1988) ("'(C]ourts of equity can no more disregard
statutory and constitutional requirements and provisions than can courts of law.'" (quoting
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Hedges v. Dixon County, 150 U.S. 182, 192 (1 S93)). A federal court may not, pursuant to its
general equitable powers, appoint individuals who exercise significant authority because the
Appointments Clause provides the exclusive mechanism by which such officers may be
appointed, and permits courts to appoint them only when authorized by an act of Congress.
Buckley, 424 U.S. at 124-26. If the equitable powcrs of the federal courts permitted them to
circumvent the Constitution in the manner Plaintiffs suggest, no real obstacle would preclude a
federal court from replacing Cabinet-level officers with individuals more pleasing to the court
under the guise of an exercise of equitable power. Absent congressional authorization (and then
only in the case of inferior officers) — which Congress has not provided this Court is prohibited
by the Appointments Clause from exercising even equitable or remedial powers to appoint a
receiver to administer and manage the JIM trust system.4
	Finally, even Congress could not authorize appointment of a receiver in this case. A
statute vesting the Court with thc power to appoint a receiver would be valid only to the extent
that exercise of this appointment power would not be "incongruous" with the judicial power. See
Ex parte Siebold, ioo U.S. 371, 398 (1879). Congress cannot vest appointment power in the
courts when such power would be inconsistent with Article HI and the proper judicial role. See
id. As demonstrated in section I.B., infra, appointing a receiver through whom the Court would
manage the JIM trust system would far transcend the proper judicial role. Accordingly, even if
Congress had authorized the Court to appoint a receiver to manage the TIM trust system, the
	~	For this reason, the discussion on pages 17-35 of Plaintiffs' brief regarding equitable
principles of common law is wholly inapposite.
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statute would impermissibly exceed constitutional limits on "incongruous" inteubranch
appointments.
B.	Appointment Of A Receiver Would Violate General Separation
Of Powers Principles And The Specific Mandates Of Articles I,
TI, And III.
	In addition to violating the Appointments Clause, appointment of a receiver would
contravene the separation of powers doctrine by permitting the court to intrude on functions
entrusted to the other branches of the federal government and would exceed the Court's authority
under Article III of the Constitution.
	The doctrine of separation of powers seeks to prevent the aggran(lizcnlent of power in
any one of the three branches of government. Morrison v, Olson, 487 U.S. 654, 693 (1988)
("[Tihe system of separated powers and cheeks and balances established in the Constitution was
regarded by the Framers as 'a self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other."' (quoting Buckley v. Valco, 424 U.S.
1, 122 (1 976))). Although no reference to "separation of powers" is found in the text of the
Constitution, the doctrine of separation of powers is enforced both as a general principle and
through the application of several specific constitutional provisions, including the Appointments
Clause and Articles I, TI and Ill of the Constitution.
	Articles I, IT, and flI establish Congress, the President and the judiciary and invest them,
respectively, with authority to exercise the legislative, executive, and judicial powers of the
United States. See U.S. Const. art. I, § I ("All legislative Powers herein granted shall be vested
in a Congress of the United States . . ."); U.S. Const. art. II, § 1, cI. 1 ("The executive Power
shall be vested in a President of the United States of America."); U.S. Const. art. Ill, § I ("The
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judicial Power of the United States, shaft be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish."). Concern with maintaining
separation of powers profoundly shaped the drafting of the Constitution and of Articles 1, II, and
Ill in particular. Sec Mistretta v. United States, 488 U.S. 361, 380 (1989) ("Madison, in writing
about the principle of separated powers [in The Federalist No. 47], said: 'No political tnith is
certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of
liberty.'"); INS v. Chadha, 462 U.S. 919, 951 (1983) ("The Constitution sought to dividc the
delegated powers of the new federal govcrnment into three defined categories, legislative,
executive and judicial, to assure, as nearly as possible, that each Branch of government would
confine itself to its assigned responsibility."), The Supreme Court has consistently reaffirmed
"the central judgment of the Framers of the Constitution that, within our political scheme, the
separation of governmental powers into three coordinate Branches is essential to the preservation
of liberty." Mistretta, 488 U.S. at 380. ~A1though not 'hermetically' sealed from one another,
the powers delegated to the three Branches are functionally identifiable," and no branch of
government may exercise authority that interferes with or usurps that delegated by the
Constitution to one of its sister branches. Chadha, 462 U.S. at 951 (citation omitted). Thus,
general separation of powers concerns, as well as Articles I, IT, and III, prohibit the judiciary from
undertaking duties delegated by the Constitution to the Executive Branch,
Article II confers on the President the duty to "take Care that thc Laws be faithfully
executed." U.S. Const. art. II, § 3. This "broad power~~ is 'conspicuously not granted to [courts]
by the Constitution." INS v. Legalization Assistance Proiect of L.A. County Fed'n of Labor, 510
U.S. 1301, 1304-05 (O'Connor, Circuit Justice 1993). "[E]xecutive or administrative duties of a
8
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nonjudicial nature may not be imposed on judges holding office under Art[iclcj III of the
Constitution" Buckley, 424 U.S. at 123. This broad prohibition upon the courts' exercise of
executive or administrative duties of a nonjudicial nature is designed "to maintain the separation
between the Judiciary and the other branches of the Federal Government by ensuring that judges
do not encroach upon executive or legislative authority or undertake tasks that are more properly
accomplished by (hose branches." Mo~ison, 487 U.S. at 680-SI.
	Thus, this Court's authority to appoint a receiver to manage an Executive Branch agency
is limited by the federal courts' constitutionally prescribed role. The Constitution limits the
authority of federal courts to "[tjhe judicial power of the United States." U.S. Const. Art. Ill, § I.
"According to express provision of Articic LII, the judicial power of the United States is limited
to 'Cases' and ~Controversies."' Mistretta, 488 U.S. at 385; see also Young v. United States ex
rel. VuittonetFils SA., 481 U.S. 787, 816 (1987) (Scalia,J., concurring) ("The judicial power is
the power to decide, in accordance with law, who should prevail in a case or controversy."). The
key inquiry is whether the Court would exceed its Article III role "to adjudicate cases and
controversies as to claims of infringement of individual rights" and intrude upon the duty
entrusted to the Executive of'"tak[ing] Care that the Laws be faithfully executed."' Liiian v.
Defenders of Wildlife, 504 U.S. 555, 577 (1992) (quoting U.S. Const. art. III, § 3); ~ Morrison,
487 U.S. at 677-78 & n.J 5 ("In several cases, the Court has indicated that Article III judicial
Power' does not extend to duties that are more properly performed by the Executive Branch.").
By ordering the relief Plaintiffs request, the Court clearly would exceed its role.
	In the rare cases in which the Supreme Court has upheld the judiciary's assumption of
nonadjudicatory functions against a separation of powers or Article HI challenge, it has
9
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emphasized that it was doing so only because the judiciary was not encroaching U~Ofl the
constitutionally delegated functions of another branch, and the nonadjudicatory lPnctions
assumed by the judiciary were closely related to the mission ofthe judiciary. In Mistretta v.
United States, 488 U.S. 361 (1989), for example, the Court held that Congress's creation within
the judiciary of a Sentencing Commission to promulgate binding sentencing guidelines was not
prohibited by the separation of powers doctrinc because "Congress may delegate to thc Judicial
Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and
that are appropriate to the central mission of the Judiciary." 488 U.S. at 388. The Court noted
that sentencing is a field in which the Judicial Branch has significant special knowledge and
expertise id at 396, and in which the Executive Branch had never exercised the kind of authority
vested in the Commission. Id. at 387 n. 14. Particularly significant to the Court was that the
Commission is an independent agency "not controlled by or accountable to members of the
Judicial Branch." Id. at 393. The Court noted that the President's relationship to the
Commission was "functionally no different" than if the Commission had been located outside the
judicial branch because Congress had empowered the President to appoint and remove
Commission members. Id. at 387 n. 14. Thus, the Court concluded that the statute did not
aggrandize the authority of the Judicial Branch or deprive the Executive Branch of a power it
once possessed. Id. at 395.
	In Morrison v. Olson, 487 U.S. 654 (1988). the Court offered similar reasons for
upholding against a separation of powers challenge a statute authorizing a Special Division of
judges to appoint and oversee an independent counsel. The Court held that the statute gave the
Executive Branch sufficient control over the independent counsel to ensure that the President
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was able to perform his constitutionally assigned duties inasmuch as (1) the Attorney General
had the power to remove the independent counsel for good cause; (2) no independent counsel
could be appointed without a specific request by the Attorney General; and (3) a decision by the
Attorney General not to request appointment of an independent counsel was unreviewahie. Id. at
696. The Court suggested strongly that its decision would have been different had "the power to
remove an executive official . . been completely stripped from the President, thus providing no
means for thc President to ensure the 'faithful execution' of the laws." Id. at 692. Moreover, the
Court determined that "the functions that the Special Division is empowered to perform are not
inherently 'Executive,'" but generally passive (e.g., receiving reports) or, if requiring the exercise
ofjudgment or discretion, "essentially ministerial ," and "directly analogous" to functions
perfonned by the judiciary in other contexts. Id. at 681. The Court noted that:
in light ofjudicial experience with prosecutors in criminal cases, it
could be said that courts are especially well qualified to appoint
prosecutors. This is not a case in which]udges are given power to
appoint an officer in an area in which they have no special
knowledge or expertise, as in, for example, a statute authorizing
the courts to appoint officials in the Department ofAgriczdture or
the Federal Energy Regulatory commission.
Id. at 676 n. 13 (emphasis added).
	In contrast, Court appointment of a receiver to assume the duties of the Secretary
"relating to the a(lministration and management of assets of individual Indian tnist beneficiaries,"
Pls.' Proposed Order at ¶ 14, would encroach impermissibly on the constitutionally appointed
function of the Executive Branch. A court-appointed receiver is "an officer of the court" and has
no powers except such as are conferred upon him by the order of his appointment." Booth v.
Clark, 58 U.S. (17 How.) 322, 331(1854); accord Sterling v. Stewart, 158 F.3d 1199, 1201 n.2
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(1 1th Cir. 1998). Such a receiver would actively exercise executive functions — functions that are
in no sense "passive" or "ministerial" or analogous to ftwctions ordinarily performed by the
judiciary. Plaintiffs' assertion that separation of powers concerns are not implicated by the
appointment of a receiver because the Secretary's duties are "the ordinary obligations of a
trustee," PIs.' Consolidated Mot. at 42, and as such are "far removed from the core constitutional
functions of the [E]xecutive [B]ranch," id. at 44, misperceives the constitutional role of the
Executive. The core constitutional function of the Executive Branch is to see that the laws are
"faithfully executed," U.S. Const. art. 11, § 3, and Congress has expressly entrusted the Secretary
with the duty to "execute" the laws governing Indian trusts. That these executive and
administrative duties have a fiduciaiy component in no sense transforms them into duties that are
adjudicatory in nature.
	Nor is the administration and management of the JIM trust system an area in which
federal courts have any more special knowledge or expertise than they have with regard to the
administration of programs in the Department of Agriculture or the Federal Energy Regulatory
Commission.5 See Monison, 487 u.s. at 676 n.13. The Secretary is not an ordinary trustee; her
trust duties include establishing policies and practices for myriad specialized functions such as
trust land management and income collection; appraisal of trust lands; review of land transfers;
oversight of grazing leases, timber leases, timber sales, oil and gas production, mineral
production, and rights of way; and banking functions. Cobell v. Babbitt, 91 F. Supp. 2d 1, 9.-i I
	~	Plaintiffs suggest that the receiver they seek "will function in a field — trust law — in
which the courts have centuries of experience — including experience with receiverships." PIs.'
Consolidated Mot. at 43. That the courts must apply trust law from time to time is wholly
irrelevant to whether courts have experience in managing and reforming specialized Executive
Branch programs that include trust duties.
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(D.D.C. 1999), affd 240 F.3d 1081 (D.C. Cir. 2001). If the Court removes these duties from the
Executive in ordcr to perform them itsclf through a receiver, the Court necessarily will be
enmeshed in making discretionary decisions about the management and administration of the JIM
trust system and about trust reform that are at the heart of the Executivc Branch's constitutionally
delegated duty.
	Perhaps most significantly, a receiver would be controlled by the Court and accountable
only to the Court, stripping the President of the power to remove an executive official and
removing any "means for the President to ensure the 'faithful execution' of the laws." Mo~son,
487 U.S. at 692 see Mistretta, 488 U.S. at 393-94: ef. Bowsher v. Synar. 478 U.S. 714, 726
(1986) (holding that Congress may not exercise removal power over an ofFicer performing
executive functions); Myers v. United States, 272 U.S. 52, 63-64 (1926) (holding that Congress
cannot divest the President of power to remove an officer in the Executive Branch whom he was
initially authorized to appoint). The Plaintiffs ask that executive functions currently performed
by the Executive Branch in accordance with the Constitution and congressional directives be
removed from the Executive Branch and assu~ned by the Judicial Branch. That would exceed the
bounds of this Court's Article ITT authority, intrude upon the duty to "take Care that the Laws be
faithfully executed" entrusted to the Executive by Article II, and contravene the doctrine of
separation of powers. See Lujan, 504 U.S. at 577~ cf Printz v. United States, 521 U.S. 898, 922-
23 (1997) (holding that the Brady Act's transference of federal identity-checking authority to
local law enforcement officials deprived the President of "meaningful . . . control" and thereby
violated Article il's dictate that the President "take Care that the Laws be faithfully executed.").
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	In addition, the Court's appointment of a receiver would trench on the prerogatives of
Congress, in which the Constitution vests "[ajil legislative Powers." U.S. Const. art. 1, § 1. As
this Court recognized, Congress has expressly vested day-to-day supervision of trust reform in
the Secretaiy, with the assistance of the Special Trustee. 25 U.S.C. §§ 162a(d) & 4011; see
Cobell v. Babbitt, 91 F. Supp. 2d 1, 13 (D.D.C. 1999) (stating that the American Indian Trust
Fund Management Reform Act of 1994 ("1994 Reform Act") "recognized and codified the trust
duties of the Secretary of the Tnterior, as the primary trustee-delegate of the United States, toward
the lJ.M trust."), aff'd, 240 F.3d 1081 (D.C. Cir. 2001).
	Congress introduced significant reform in the administration of Indian trust funds in the
1994 Reform Act. For example, the Act created the Office of Special Trustee for American
Indians in the Department of the Interior, headed by a Special Trustee who reports directly to the
Secretary. 25 U.S.C. § 4042(a). Notably, Congress implemented rcfonns that would improve
the performance of the agencies within the Department of the Interior; it conspicuously did not
shift trust duties to another agency, much less the courts. See H.R. Rep. No. 103-778, at 8-9
(1994), reprinted in 1994 U.S.C.C.A.N. 3467, 3467-68 (explaining that the purpose of the bill
was to "bring about better accountability and management of Indian trust funds by the
Department of the Jnterior," that the bill sets out the Secretary of [the] Jnterior 's
responsibilities," and that the "Special Trustee would oversee and ensure that the reforms take
place throughout the Department of [the] Interior." (emphasis added)). It is amply clear that
Congress did not intend to allow the Secretary to be stripped of her responsibility over Indian
trust funds; rather, Congress ensured that the ultimate fiduciary trust responsibility remain with
the Secretary.
14
<< COB00019 >>
	Nonetheless. Plaintiffs unabashedly seek a receiver who would "have and exercise the
authority and powers over matters relating to the administration and management of individual
Indian trust beneficiaries thai have been co~~ferred upon the Interior Secretarji' by Congress."
Pis.' Proposed Order at ¶ 14 (emphasis added). Plaintiffs fail to recognize that courts "have no
authority to substitute [their] views for those expressed by Congress in a duly enacted statute."
Mobil Oil Corp. v. Hig~inbotharn, 436 U.S. 618, 626 (1978); see also Northwest Airlines. Inc. v.
Transport Workers Union of Am.. AFL-CIO, 451 U.S. 77,97(1981) ('TT]he authority to
constnie a statute is fundamentally different from the authority to fashion a new rule or to
provide a new remedy which Congress has decided not to adopt."); TVA v. Hill, 437 U.S. 153,
194-95	(1978) ("While '[ilt is emphatically the province and (luty of the judicial department to
say what the law is,' . . . it is equally — an(l emphatically the exclusive province of the Congress
not only to formulate legislative policies and mandate programs and projects, but also to establish
their relative priority for the Nation." (quoting Marburv v. Madison, 5 U.S. (I Cranch) 137,177
(1 803)). This Court acknowledged as much in its June 7, 1999 opinion:
Congress has clearly provided that the government is to act as
trustce for the IIM monies. This court does not have the power to
encroach upon that decision, as such action would violate the
doctrine of separation of powers. Congress has created this trust,
and only Congress may alter it. This court's duty, as in all other
cases, is to interpret and judicially enforce these laws.
Cobell v. Babbitt, 52 F. Supp. 2d 11, 28 n.17 (D.D.C. 1999). Although the Court did not
explicitly rule out appointment of a receiver in its discussion of equitable remedies available to
Plaintiffs, it did rule out removal of the government as trustee. See id. at 24-25. While Plaintiffs
submit that they are not seeking removal of the government as trustee, see Pls.' Consolidated
15
<< COB00020 >>
Mot. at 1 9, ii is difficult to discern the practical difference between removing the Secretary as
trustee-delegate of the government — which the Plaintiffs expressly seek, see — and the
removal of the "government" as trustee. For purposes of separation of powers analysis, no
difference exists: Congress provided that the Secreiwy is to act as trustee-delegate of the
government, and the Court does not have the power to encroach upon that decision by replacing
her with a judicially appointed officer.6
	Plaintiffs do not discuss (or even mention) the Supreme Court's federal separation of
powers jurisprudence discussed above. Instead, they rely exclusively on cases in which state or
federal courts have imposed receiverships on state agencies see PIs ' Consolidated Mot. at 35-
44, and make a tortured argument that such cases are relevant because the Framers borrowed the
separation of powers doctrine from preexisting state constitutions see id. at 36-38. While the
Framers' idea for dividing federal power between three distinct branches of government was
actually borrowed from the "the celebrated Montesquieu," see James Madison, Federalist No. 47,
it is true that state constitutions existing at the time of the Constitutional Convention — including
Massachusetts' — had already implemented this invaluable doctrine and distributed power
between three distinct branches. See, e.g. Mass. Const. (1780). Notwithstanding that fact, it is
simply not necessary — indeed it is altogether improper — to rely (much less exclusively so) on
court decisions construing state constitutions to interpret the United States Constitution when, as
is the case here, the United States Supreme Court has provided substantial guidance on the issue
in dispute. Sec. e.g. Cooper v. Aaron, 358 u.s. 1,18(1958) (describing the Supreme Court's
	6 As explained in section l.A., supra, the Court's equitable powers provide no vehicle for
skirting the mandates of the Constitution. iy~anilinaj2, 486 U.S. 875, 883 (1988).
16
<< COB00021 >>
authority to definitively determine the meaning and application of the United States Constitution
as "a pennanent and indispensable feature of our constitutional system.") Thus, it is of no import
that the State of Massachusetts, afler initially distributing power among its constituent parts in its
constitution, now allows its courts to impose receiverships on state agencies when a similar
imposition on federal agencies would not he allowed under the Supreme Court's separation of
powers jurisprudence. Moreover, even if the Supreme Court had no separation of powers
jurisprudence, which is simply not the ease, the complete (and uncritical) reliance on state court
decisions construing state constitutions would be ill advised. It is well settled that state courts
are fl-cc to interpret state constitutional provisions more broadly than similar or identical
provisions of the United States Constitution.7 See. e.g. Arizona v. Evans, 514 U.S. 1, 8 (1995).
Here, there is no evidence that the state court decisions cited by Plaintiffs accurately reflect the
Framers' original understanding of the separation of powers (loctrine; instead, those decisions
reflect the State's current thinking on the matter. In the end, federal separation of power
concerns simply are not implicated when a state agency is placed in receivership, and the cases
cited by Plaintiffs are wholly inapposite. We are unaware of any case in which a court-appointed
	~	Byway of example, the Fourth Amendment, like most of the provisions of the Bill of
Rights, "was derived from provisions already existing in state constitutions." Minnesota v.
Carter, 525 U.S. 83, 93 (1998). Of the four state constitutions that contained language virtually
identical to that of the Fourth Amendment sec Id., one was the Massachusetts Constitution, see
Mass. Const., pt. I, Art. XlV (1780) ("Every subject has a right to be secure from all
unreasonable searches, and seizures, of his person, his houses, his papers, and all his
possessions,"). Despite the similarity between the Fourth Amendment and Article XIV of the
Massachusetts Declaration of Rights, "rut is by now firmly established that. . . art. 14 affords
greater protection against arbitrary government action than do the cognate provisions of the
Fourth Amendment." Commonwealth v. Stoute, 665 N.E.2d 93, 96 n.l0 (1996); see also Jenkins
v. Chief Justice of the Dist. Court Dep't, 619 N.E.2d 324 (1993). As a result, Massachusetts case
law is simply not relevant in construing the Fourth Amendment notwithstanding the fact that the
Framers borrowed the Fourth Amendment from the Massachusetts Constitution.
17
<< COB00022 >>
receiver has taken over a major administrative responsibility of a federal Executive Branch
agency, and Plaintiffs have cited no such case. Under the Constitution, the appointment of a
receiver to manage the LIM trust system and develop and implement trust reform would violate
the separation of powers doctrine.
C.	Appointment Of A Receiver Would Violate The Appropriations Clause.
	In addition to violating the Appointments Clause, Articles I, TI, and III of the Constitution,
and the separation of powers doctrine, appointment of a receiver would violate the
Appropriations Clause to the extent that the receivership would require expenditures from the
Treasury. The Appropriations Clause provides that "[nlo Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law," U.S. Const. art. I, § 9, cI. 7.
Under our system of separated powers, federal courts do not make fiscal policy, nor can they
allocate resources of the United States based on judicial notions of equity or fairness. As the
Supreme Court has explained, the Appropriations Clause "assure[sj that public funds will be
spent according to the letter of the difficult judgments reached by Congress as to the common
good and not according to the individual favor of Government agents or the individual pleas of
litigants." Office of Personnel M~mt. v. Richmond, 496 U.S. 414,428(1990); City of Houston
v. Department of Hous. & Urban Dcv., 24 F.3d 1421, 1427 (D.C. Cir. 1994) ("'Money may be
paid out only through an appropriation made by law; in other words, the payment of money from
the Treasury must be authorized by a statute."' (quoting Richmond, 496 U.S. at 424)). The
Appropriations Clause would be violated to the extent that the receiver's duties (or the
18
<< COB00023 >>
reccivership itself) require the expcnditure of money from [he public fiscY "It is beyond dispute
that a federa] court cannot order the obligation of funds for which thcre is no appropriation."
Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 184 (D.C. Cir. 1992); accord City of
Houston, 24 F.3d at 1426. Thus, even if a receiver could be appointed to oversee the IIM trust
system without violating other constitutional provisions, that receiver's powers would necessarily
be limited by the Appropriations Clause.
II.	TIlE SECRETARY'S REORGANTZATION PLAN WILL CREATE A SINGLE,
ACCOUNTABLE TRUST REFORM OFFICE WITH LINE AUTHORITY OVER
INDIAN TRUST FUNCTIONS AND OVERSIGHT BY TIlE SPECIAL TRUSTEE.
	As the United States informed the Court in its Notice of Proposed Department Of The
Interior Reorganization To Improve Indian Trust Assets Management, filed November 14, 2001,
a reorganization process is underway within Interior to improve the management of trust assets.
The proposed reorganization consolidates Indian trust asset management functions in a new
agency: the Bureau of Indian Trust Assets Management. Declaration of J. Steven Griles ("Griles
Deci.") ¶ 10 (Ex. I). The proposed Bureau will report to an Assistant Secretary for Indian Trust
Assets Management. The Special Trustee for American Indians will continue to perform
oversight for the Department's trust reform efforts. The Bureau of Indian Affairs, under the
supervision of the Assistant Secretary - Indian Affairs, will continue to provide to Indian tribes
and individuals those services that are not related to trust assets. 1(1. at ¶ 11.
	~	Moreover, apart from the constitutional problem, to the extent the receiver required
appropriations to accomplish his or her mission, he or she (as well as this Court) would be
immersed in Interior's —- and ultimately the President's — budget process.
19
<< COB00024 >>
	Because the proposed reorganization affects many intcrcstcd partics, Interior has begun
consultation with Indian tribes and with Congress. Appropriate notification to departmcntal
cmployccs and union representatives xviii occur on November 1 5, 2001. Also, candidates for the
Assistant Secretary and the Bureau Director must be found. The Assistant Secretary must be
nominated and confirmed. Id. at ¶ 12. The final organization structure will depend upon the
results of the consultation process. Implementation xviii progress as soon as it becomes final.
	Trust reform activities will continue during this transition process. Three key
subprojects (TAAMS, BIA Data Cleanup, and Probate) will be supervised by Ms. Donna Erwin,
previously Deputy Special Trustee for Trust Systems and Projects, under a newly-created Office
of Trust Transition in the Office of the Secretary. Planning for the transfer of the remaining
subprojects is underway. Project resources needed in the short term arc being identified and
work with EDS to develop a business model is undenvay. j~ at ¶ 13.
	Meanwhile, OHTA, created by Secretarial Directive on July 10, 2001, has proceeded on
its announced schedule with its task of planning, organizing, directing and executing the
historical accounting of IIM accounts. On September 10, 2001, OHTA issued a "Blueprint for
Developing the Comprehensive Historical Accounting Plan for Individual Indian Money
Accounts," which sets forth a description and timetable for completion of all steps necessary to
staff and develop the plan for the historical accounting. On November 7, 2001, OHTA issued its
"Report Identif~ring Preliminary Work for the Historical Accounting." It identifies work that is
underway and work that can begin immediately to constitute an historical accounting and pilot
test possible methods and assumptions about boxy to conduct the historical accounting, among
20
<< COB00025 >>
other tasks. In the proposed rcorganization, OHTA will be a line organization under the new
Assistant Secretary. hi. at ~J 14.
CONCLUSION
For the reasons set forth above, Plaintiffs' motion to appoint a receiver should be denied.
Respectfully submi tied,
ROBERT D. McCALIJJM
Assistant Attorney General
STUART F. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
SANDRA P SPOONER
Deputfbirector
.TOH7N T. STEMPLEWICZ
Senior Trial Attorney
CYNTHIA L. ALEXANDER
AMAIJA KESSLER
Trial Attorneys
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 L. Ferrell
Department of the Interior	Department of the Treasury
Office of the Solicitor	Office of Chief Counsel
	Bureau of the Public Debt
21
<< COB00026 >>
IN THE UNiTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	CascNo. l:96CV01285
	)	(Judge Lamberth)
GALE NORTON, Secretary of the Interior Ct aL,	)
	)
Defendants.	)
ORDER
	Upon consi(Ieration of Plaintiffs' October 19, 2001 Motion To Amend Their Motion To
Reopen 1'rial One In This Action To Appoint A Receiver, it is hereby ordered that Plaintiffs'
motion is DENIED.
	SO ORDERED this _____ day of	,2001.
	ROYCE C. LAMBERTH
United States District Judge
<< COB00027 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICI' OF COLUMBIA
	ELOUISE PEPION COI3ELL, et aL,	)
		)
	Plaintiffs,	)
		)
	'7.	)	Case No. I:96CV01285
		)	(Judge Lamberth)
GALE NORTON, Secretary of the Interior, et al.. )
)
	Defendants.	)
_________________________________ _______________ _____________________ 9
DECLARATION OF J. STEVEN GRILES
	J.	Steven Griles declares as follows:
	1.	1 am the Deputy Secretary, United States Department of the Interior ("Interior").
	2.	Trust refonri has been a major focus of my work on behalf of the Secretary of the
Interior since I assumed office in July 2001.
	3.	At a hearing on October 30, 2001, the Court asked the Government to tell it who is in
charge of trust reform. Under the existing trust management structure, the various functions of
trust reform are spread among, primarily, the Office of the Special Trustee for American Indians
("OST"), the Bureau of Indian Affairs ("BIA"), and the Office of historical Trust Accounting
("OHTA"). This dispersal of functions necessitates the assignment of overall authority to an
official above these organizations in the chain of command, and I have undertaken that
responsibility. However, as discussed below, the Department is currently reorganizing to align
trust asset management functions in one, clearly focused bureau.
<< COB00028 >>
	4.	Congress tasked Interior, in the 1 994 Indian Trust Reform Act, to improve Indian trust
asset managemcnt and provide basic Fiduciary services to trust beneficiaries. Plaintiffs filed this
lawsuit in June 1996.
	5.	In July 1998, then-Secretary Babbitt published a High Level Implementation Plan
("HLW") and, in February 2000, published a revised HLIP.
	6.	The current Special Trustee for American Indians, Mr. Torn Slonaker, took office in
June 2000. The Special Trustee has had both oversight for all trust reform as well as some
operational responsibility for trust reform and trust asset management.
	7.	Concerns about the viability of the revised HLIP led Secretary Norton, in June 2001,
to commission an independent study of the Department's trust asset management and trust
reform efforts. Interior contracted with Electronic Data Systems Corporation ("EDS") to conduct
this evaluation. Interior tasked EDS to begin with an assessment of the Tnist Asset and
Accounting Management System ("TAAMS') and BIA Data Cleanup. EDS is also tasked to
determine the current status of trust reform, identify business and technical issues, recommend
improvements, and develop a recommended schedule for future improvement efforts.
	8.	EDS has issued a report entitled "Interim Report and Roadmap for TAAMS and BIA
Data Cleanup," dated November 12, 2001 ('EDS Report"). The EDS Report contains the
following key recommendations for improving Indian trust asset management:
*	Immediately appoint a single, accountable trust reform executive sponsor
*	Develop an overarching trust operations business model
*	Adopt an overall business and computer systems architecture
*	Adopt a consistent infonnation systems acquisition strategy
*	Implement consistent technology frameworks, methods, and tools
Establish a trust program management center
*	Execute comprehensive staffing plans for all participating organizations
2
<< COB00029 >>
	9.	Immediately following the EDS Report, the Special Trustee for American Indians and
the Assistant Secretary - Indian Affairs issued a joint memorandum to Secretary Norton (copy,
without attachments, is at tab A) recommending what they term "a draTnatic change in
organization and management structure for Indian trust rcform and trust operations." Secretary
Norton concurred with their recommendations and directed Interior staff to begin the process of
reorganizing interior's Indian trust asset managerncnt.
	10.	The proposed reorganization consolidates Indian trust asset management functions in
a single agency separate from the OST and BIA: the Bureau of indian Trust Assets Management.
(A draft chart of the proposed organization is at tab B.) Segregating these trust functions is
intended, as in the private sector, to facilitate the development of performance measures,
processes, controls, and systems that arc designed to meet Interior's fiduciary obligations.
	II.	The Bureau of Indian Trust Assets Management xviii report to an Assistant Secretary
for Indian Trust Assets Management. This new Assistant Secretary will have authority and
responsibility for Indian trust asset management. The Special Trustee will continue to perfomi
oversight for Interior's trust reform efforts. BIA, under the supervision of the Assistant Secretary
- Indian Affairs, will continue to provide those services to Indian tribes and individuals that are
not related to trust assets.
	12.	The proposed reorganization impacts many interested parties, interior has begun
consultation with Indian tribes and with Congress. Appropriate notification to departmental
employees and union representatives will occur on November 15, 2001. Also, candidates for the
3
<< COB00030 >>
Assistant Secretary and the Rureau Director must be Ibund. The Assistant Secretary must be
nominated and con Finned.
	13.	'IThst reform activities will continue during this transition process. The final
organization structure will depend upon the results of the consultation process. Implementation
will progress as soon as it becomes linal. In the meantime, three key subprojects (TAAMS, BIA
Data Cleanup, and Probate) will be supervised by Ms. Donna Erwin, previously Deputy Special
Trustee for Trust Systems and Projects, under a newly-created Office of Trust Transition in the
Office of the Secretary. Planning for the transfer of the remaining subprojects is underway.
Project resources needed in the short term are being identified and work with EDS to develop a
business model is underway.
	14.	Meanwhile, OHTA, created by Secretarial Directive on July 10, 2001, has proceeded
on its announced schedule with its task of planning, organizing, (lirecting and executing the
historical accounting of JIM accounts, On September 10, 2001, OHTA issued a "Blueprint for
Developing the Comprehensive Historical Accounting Plan for Individual Indian Money
Accounts," which sets forth a description and timetable for completion of all steps necessary to
staff and develop the plan for the historical accounting. On November 7, 2001, OTITA issued its
"Report Identif~'ing Preliminary Work for the Historical Accounting." It identifies work that is
underway and work that can begin immediately to constitute an historical accounting and pilot
test possible methods and assumptions about how to conduct the historical accounting, among
other tasks. In the proposed reorganization, OHTA will be a line organization under the new
Assistant Secretary.
4
<< COB00031 >>
	15.	We will advise the Court as further actions arc taken. As the official currently in
charge of trust refonn iii the Department. I understand that reorganization by itself does not solve
the numerous problems of trust relbrm. but it does provide an avenuc for developing solutions.
	16.	1 declare under penalty of peijury that the foregoing is true and correct.
Executed this 14th day of November, 2001.
	t(~	Y.
5
<< COB00032 >>
TabA
<< COB00033 >>
THE SECRETARY OP THE INTERIOR
WASHING TON
November 14, 2001
Memorandum
To.	Special Trustee for American Indians
	Assistant Secretary-Indian Affairs
From:	Secretary
Subject:	Trust Organization
I have read your November 14, 2001 memorandum including your views on the
organization of trust asset management responsibilities. I enthusiastically support and
concur in your recommendations.
The Department's refinement of the proposed organization and management structure
will greatly benefit from the counsel provided by affected and interested parties.
Please ensure that we consult with Congress, the Tribes, Department of the Interior
personnel and their unions as well as other interested parties prior to implementing a
broad reorganization of Indian trust asset management functions. We must tap into the
broad knowledge and experience available from these groups in order to fashion the
best organizational structure possible.
It is my understanding that these consultations have already begun, and will continue,
consistent with my often-stated policy of communication, consultation, and cooperation
with the public we serve.
<< COB00034 >>
United States Department of the Interior —
OFFICE OF THE SPECIAL TRUSTEE FOR AI\IHRJCAN INDIANS
Washington, DC. 20240
	November 14, 2001
Memorandum
	N
	To:	Secretary	KY	~
	From:	Special Trustee for American Indians
		Assistant Secretary— Indian Affairs
	Subject:	Trust Organization
Attachment 1 is a proposed organization and management structure for the
Department's Indian trust asset management function. A briefing paper with information
on the proposed organization and management structure is included in Attachment 2.
As you know, for the past several weeks a senior group has been evaluating alternative
trust organization and management structures for Indian trust asset management1
identifying several options that could lead to a more effective structure. The Special
Trustee contributed a typical structure for trust operations as found in commercial sector
trust banking. In addition, the Judge in the Cobell v Norton class action litigation was
critical recently of the Department because he could not readily identify a single
individual in charge of trust reform. Periodically we have briefed you on the status of our
efforts, and received your input on the options.
As we closed on a structure that would establish an effective, accountable organization,
it became apparent that a dramatic change in organization and management structure
for Indian trust reform and trust operations was needed. Concurrently, EDS was
drawing a similar finding and conclusion in its assessment of the TAAMS and BIA Data
Cleanup sub projects. At the request of the Deputy Secretary, EDS evaluated the
group's proposed organization and structure and commented favorably (Attachment 3).
In consonance with EDS' suggestions, a separate element will be organized and
devoted to beneficiary services. This element will put the beneficiary—Tribes and
Individual Indian account holders—as the focus of the Indian Trust Asset Management
organization.
The structure we recommend has the strength of, once and for all, establishing a single,
accountable manager and management structure for the conduct of most Departmental
Indian trust operations and trust reform.
Therefore, we believe and concur that the Department should reconfigure trust asset
management activities along the lines of the organization and management structure
found in Attachment 1, and recommend your approval of this organizational concept.
I CONCUR: Sec~ ll/I+/O( ~1~WtO I DO NOT CONCUR:_______________
	Secretary df the Interior	Secretary of the Interior
3 Attachments, as stated
<< COB00035 >>
TabB
<< COB00036 >>
Draft Organizational Chart
Assistant Secretary
Indian Trust Assets Management
	Bureau Director	Board of
	Bureau of Indian Trust Assets Management	Advisors
Probate	. .. Appraisals
	Trust Management	Contract and Compact
	Program Center	Administration
Administration	Historical Trust	Records	Natural Resource	Trust Asset
And Finance	Accounting	Management	Management	   Accounting
				November 14, 2001
<< COB00037 >>
CERTIFICATE OF SERVICE
	I declarc under penalty of perjury that, on November 15, 2001, 1 served thc foregoing
Opposition TO Plaintiffs' Motion To Amend Their Motion To Reopen Trial One In This Action
To Appoint A Receiver, by facsimile (in compliance with their written request of October 31,
2001) upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Loma Babby, Esq.	Mark Brown, Esq.
Native American Rights Fund	1275 Pennsylvania Avcnue, N.W.
1712 N Street, NW	Ninth Floor
Washington, D.C. 20036-2976	Washington, D.C. 20004
202-822-0068	202-318-2372
and by facsimile and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
an(l by U.S. Mail upon:
Elliott Levitas, Fsq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530