.; #y; 1 5 p/ 3: 5 IN THE UNITED STATES DISTRICT COURT 9 .* 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPTON COBELL, al., 
Plaintiffs, 
V. Case No. I :96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 
a al., 
) 
) 
) 
) 
1 
1 
1 
) 
De fcndan t s. 
DEFENDANTS' OPPOSITION TO 
NATIONAL CONGRESS OF AMERICAN INDIANS 
MOTION 7'0 FILE AMICUS BRIEF 
Defendants file this opposition to thc Motion of the National Congress of American 
Indians ["NCAI"] for Leave to File iliniczrs C'zwiae Brief ("NCAl's Second Amicus Request" 
accompanied by "NCN's Second Amicus Brief"). NCAI's Second Amicus Brief does not meet 
the standard for being helpful to the Court for all the reasons stated in Defendants' Opposition to 
National Congress of American Iiidians Motion to file Amicus Brief, filed February 1 1, 2003, 
incorporated here by reference. Moreover, much of the argument in NCAI's Second Amicus 
Brief is redundant, as it restates the arguments NCAI made in its first amicus brief, filed on 
January 28,2003. Finally, NCAI's Second Amicus Brief improperly comments on Phase 1.5 trial 
testimony and should not be considered by the Court. 
On January 28,2003, NCAI filed its Motion of the National Congress of American 
Indians for Leave to File Amicus Curiae Brief ("NCAl's First Amicus Request" accompanied by 
"NCAI's First Amicus Brief'). The Court granted NCAI's First Amicus Request on March 3, 
- 1 - 2003. NCAI filed its Second Amicus Request and Second Amicus Brief on August 4,2003. For 
all the reasons stated in Defendants' Opposition to National Congress of American Indians 
Motion to file Amicus Brief, filed February 11,2003, NCAI's Amicus Brief does not meet the 
standard for being helpful to the Court and the Court therefore should not consider it.' 
More specifically, however, the Court should deny NCAI's Second Amicus Request 
because many of the arguments in NCAl's Second Amicus Brief repeat the arguments in NCAI's 
First Amicus Brief. For example, NCAI's Second Amicus Brief addresses "NCAI's Concerns 
with the Parties' Compliance Plans.'' NCAI's Second Amicus Brief at 4-1 1. Yet NCAI's First 
Amicus Request specifically sought permission to address these same concerns: ''"CAI] 
respectfully moves for leave to file a brief Amicus Curiae in reference to the plans for complying 
with the fiduciary obligations of the . . . (IIM) trust accounts . . . . " NCAI's First Amicus 
Request at 2. NCAI's First Amicus Brief addressed NCAI's concerns with the compliance plans: 
"We also present some critiques of the Department of the Interior's proposed plan of reform, and 
concerns about some aspects of the Cobell plaintiffs' plan, from the perspective of Indian tribes." 
NCAI's First Amicus Brief at 2; see also, id. at 2 1-40. NCAI also argues against the "BIA 
Reorganization" in its 2nd Amicus Brief, see NCAI's Second Amicus Brief at 11-17, just as it 
criticized the reorganization plan in its First Amicus Brief, see NCAl's First Amicus Brief at 3 1 - 
35. NCAI's conclusion in its Second Amicus Brief, see NCAI's Second Amicus Brief at 22, 
' As stated in Defendants' Opposition to National Congress of Amencan Indians Motion 
to file Amicus Brief, filed February 1 1,2003, NCAI's amicus filings are not helphl to the Court 
because this is an EM, not a tribal case, because NCAI's concerns are more properly directed to 
Congress and to the Department of the Interior, and because the parties already address NCAI's 
concerns relevant to this lawsuit. In addition, adding yet another NCAI brief to the record would 
further burden the Court and the parties. ld. at 1. 
-2- closely mirrors its conclusion in its First Amicus Brief, ~ e e NCAI's First Amicus Brief at 43. In 
addition, NCAI uses the same "Attachment A" for its Second Amicus Brief that it used for its 
First Amicus Brief. Therefore, the Court should not consider this latest NCAI amicus brief 
because it is largely redundant. 
The Court should also deny NCAl's Second Amicus Request because the only section of 
NCAI's Second Amicus Brief that does not repeat arguments made in NCAI's First Amicus Brief 
improperly comments on Phase 1.5 trial testimony. Specifically, NCAI criticizes the trial 
testimony of the Special Trustee, questioning his "credibility" and "candor." NCAI's Second 
Amicus Brief at 17,20. There is no provision in the law for a non-party to comment on trial 
testimony to the fact finder while that fact finder is deliberating. NCAI's amicus attack on the 
Special Trustee's trial testimony is tantamount to a third party's interference with jury 
deliberations. While this is not a jury trial, there is nonetheless no provision in law permitting an 
amicus to comment on trial testimony to the fact finder while that fact finder is deliberating. The 
Court should not pcmiit such improper commentary to enter the record. 
CONCLUSION 
NCAI's Second Amicus Brief does not meet the standard for being helpful to the Court 
for all the reasons stated in Defendants' Opposition to National Congress of American Indians 
Motion to file Amicus Brief, filed February 1 1,2003, fully incorporated here by reference. 
Moreover, much of the argument in NCAI's Second Amicus Brief repeats the argument in 
NCAI's First Amicus Brief, filed on January 28,2003. Finally, NCAI's Second Amicus Brief 
improperly comments on Phase 1.5 trial testimony. For these reasons, the Court should deny 
NCAI's Second Amicus Request. 
- 3 - Dated: August 15, 2003 Respectfully submitted, 
7 ' JR. ROBERT D. McCALLUM 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
JOHN J. SEMIETKOWSKI 
Trial Attorney 
Comercia1 Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-3368 
(202) 514-9163 (fax) 
- 4 - IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., ) 
) 
) Plaintiffs, 
V. Case No. 1 :96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 
) 
) 
1 
1 Defendants. 
a &, 
Motion, it is hereby Ordered that: 
Dated: 
ORDER 
Having considered the National Congress of American Indians Motion for Leave to File 
Amicus Curiae Brief, filed August 4,2003, and having considered the parties' responses to said 
The National Congress of American Indians Motion is DENIED. The National Congress 
of American Indians amicus curiae brief, dated August 4,2003, shall not be filed. 
Hon. Royce C. Lamberth 
United States District Judge cc: 
Sandra P. Spooner, Esquire 
John T. Stemplewicz, Esquire 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Gingold, Esquire 
Mark Kester Brown, Esquire 
607 14th St., N.W., Box 6 
Washington, D.C. 20005 
Fax (202) 3 18-2372 
Keith Harper, Esquire 
Native American hghts Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esquire 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran 
Special Master 
1 7 17 Pennsylvania Avenue, N. W. 
12th Floor 
Washington, D.C. 20006 
Charles A. Hobbs, Esquire 
Geoffrey D. Strommer, Esquire 
Attorneys for National Congress of American Indians 
2120 L St., N.W., Suite 700 
Washington, D.C. 20037 
Telefax: 202-296-8834 
John Dossett, Esquire 
General Counsel, National Congress of American Indians 
1301 Connecticut Ave., N.W., Suite 200 
Washington, D.C. 20009 
Telefax: 202-466-7797 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on August 15, 2003 I served the foregoing 
Defendunts' Opposition to National Congress of American Indium' Motion to File Amicus Brief 
by fixsimile in accordance with their written request of October 3 1 , 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 Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW 
Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530