7,; ¸ - :Z IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBbX - _; :;' "' ' :' ELOUISE PEPION COBELL, et al__:., ) : ':::' ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary' of the Interior, et al., ) ) Defendants. ) ) INTERIOR DEFENDANTS' MOTION FOR RECONSIDE1L,\TION OF ORDER PROHIBITING COMMUNICATIONS WITH CLASS MEMBERS On December 23,2002, this Court issued a memorandum and order pursuant to Fed. R. Civ. P. 23(d), prohibiting tile "parties to the litigation, their agents and officials, and their counsel" from communicating in _1.5' maimer "with ,'my class member in this litigation regm-ding tiffs litigation or the claims involved therein." Memorandum and Order ("Op.") at 18-19. The court also referred several Department of Justice ("DOJ") attorneys to a disciplinary panel for possible violations of the ethics rule prohibiting contacts by attorneys with represented parties. Pursuant to Fed. R. Civ. P. 59(e), the Interior defendants respectfifily move for reconsideration of the order prohibiting contacts with class members and relbrlSng various attorneys for disciplinaryproceedings. On January 8, 2003, counsel for the interior defendants conferred with plaintiffs' counsel regarding this motion and was advised that plaintiffs would oppose the motion. The Court's ruling followed from its conclusion ti'mt the I_nterior defendants and their counsel had acted improperly by mailing historical statements of accounts to approximately 1,200 individual account holders. The Court stated that it "does not find objectionable tile fact that defendants mailed statements of accounts to individual class members." Op. at 9. The Court concluded, however, that it was "improper" for Interior to send "notices to individual class members that have the effect of extinguishing the rights of those class members without first seeking the approval of this Court." Id. The premise of the Court's ruling is incorrect. The notices accompanying the historical account statements did not- and could not extinguish the rights of any class member in this litigation. They simply informed account holders of the administrative process available to challenge inaccuracies or other problems in their statements. The issuance of the statements can have no effect on tile ultimate questions presented by this litigation and cannot alter tile scope any relief ordered. This is not a class action for individual damages under Fed. R. Civ. P. 23(b)(3), but rather an APA suit to vindicate the collective rights of class members to a historical accounting ofliM trust funds. The class was certified under Fed. R. Civ. P. 23(b)(1) and (b)(2), providing relief applicable solely to a class as a whole. Because class members have no notice and opt-out rights in such an action, they could not have agreed indMdually to "settle" their claims in this case. The predicate for this Court's ruling - that the notices accompanying the account statements could "extinguish individual rights"- is thus mistaken, and the consequent relief should be set aside. The Court's referral order should be set aside for a second, independent reason. The account statements issued by the Department of the Interior were made in the regular course o fbusiness between Interior and its IIM beneficiaries. They did not constitute communications by the attorneys with represented parties concerning the subject matter of the representation. Moreover, the DOJ attorneys had no independent legal obligation to prevent Interior from itself making such co_mmmications. Thus, the -2 - disciplinary referral under Rule 4.2(a) of the District of Columbia Rules of Pro fessional Conduct is without foundation. STATEMENT 1. Following the Court's 1999 ruling that plaintiffs are entitled to a historical accotmting of all funds held in Individual Indian Money ("IIM") trust accounts, the Interior defendants have worked toward the goal of providing the necessary accountings to IIM beneficiafi es. As of September 2002, Interior had completed the historical accounting work For approximately 7,900 IIM judgmlent accounts and had prepared statements for each of the account holders. These tfistorical statements of account were prepared in addition to the accounting staterncnts that Interior is required by statute to provide to account holders on a quarterly basis. See 25 U.S.C. § 4011(b). 2. On September 10, 2002, Interior notified the Court that it intended to provide historical statements of account to the 7,900 account holders ,,,,'hose statements had been completed. Because of Privacy Act concerns, Interior also sought permission from the Court to provide copies of the account statements to class counsel in this case. Provision of such statements is the type of conduct that the Secretary can and should take in implementing her statutory duties. Nevertheless, plaintiffs' counsel opposed Interior's motion and sought a temporary restraining order and a prelinfinary injunction preventing Interior from distributing these account statements on the ground that theywould be misleading. Plaintiffs' counsel pursued such relief even though they had never even seen those statements. In response, Interior explained that nothing in this Court's prior orders or the D.C. Circuit's decision in Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001), "requires Interior to file a statement of account first with the Court and Plaintiffs' counsel before it can be sent to the beneficiary for whom the statement was prepared." Interior -3 - Defs' Opp. to Consolidated Mot. for TRO and Prelim. Injunc., at 3. This Court did not rule on plaintiffs' request for injunctive relief. 3. On October 9 and 28, 2002, Interior sent approximately 1,200 historical statements of account to the parent or guardian of the account holder for whom they were prepared. In a cover letter accompanying the account statements (attached as Exhibit A), Interior explained the accounting results, the accounting approach, and what the account holder should do if he or she had concerns about the account statement or wished to file an ach_4tfistrative challenge with Interior's Office o fHistorical Trust Accounting ("OHTA"). Among other things, the letter informed account holders, "ffyou do not challenge the historical account statement or request an extension within 60 calendar days of the postmark on the envelope containing this letter, the enclosed Historical Statement of Account will be final and cmmot be appealed." That statement informed account holders of the administrative appeals process available for them to challenge inaccuracies or other problems with their account statements. The letter made no reference to this case, much less to the release or satisfaction of any claims pending in this case, including the right to whatever foml of historical accounting this Court might ultimately order in this case. 4. On October 10, 2002, plaintiffs filed a request for the referral of defense counsel to the disciplinary panel of this Court for unlawfully transmitting account statements to I1M trust beneficiaries. In that filing, plaintiffs again complained that the information contained in those statements was "false," but plaintiffs nowhere asserted that those statements constituted unethical contacts with represented parties or unlawful attempts to "extinguish" claims in this case. 5. On November 1,2002, this Court heard oral argument on plaintiffs' preliminary injunction motion and expressed concern about certain information in the letter accompanying the account statements, 4 which informed account holders of the administrative process Interior had in place for handling questions or challenges to the accuracy of those statements. The Court directed supplemental briefing on the propriety of Interior's communication with class members. 6. In response to the Court's briefing order, Interior explained that communications between a fiduciary and its beneficiaries- even i fthe beneficiaries are class members in a pending case- are not prohibited to the extent they are made in the ordinary course of business. Interior Defend_ts' Supp. Opp. to Pls' Mot. for a Prelim. Injunc. Regarding Historical Statements of Account, at 4. _ Interior further explained that its notification to IIM beneficiaries conceming the administrative procedures for disputing account statements was in no way misleading and, in fact, may have been required because the failure to provide such notice of the administrative process could itself be deemed misleading. IA. at 5-8. Nonetheless, in order to allay any concerns the Court might have concerning the overall accuracy of its notice, Interior offered to include notice of this case in any future statements to account holders and also offered to send out similar notices to any class members who had already received statements. Id. at 8-10. 9-, 7. Oil December _._, 2002, this Court issued a memorandum and order concluding that the Interior defendmlts had acted improperly by sending out statements to accotmt holders that "have the effect of extinguishing the class members' rights to a fifil and accurate accounting after the defendants have 'fixed the system.'" Op. at 4. Focusing on a single sentence in the letter to account holders explaining their 1 Interior also noted that no ethical constraints required attorneys to prevent their clients from communicating with a represented party- particularly a party (such as a beneficiary) with whom the client has communications in the regular course of business- and explained that the "provision of historical statements of account was a communication by Interior to account holders and was not a communication initiated by, or on behalf of, counsel." Id. at 7 n.7. -5 - administrative appeal rights, the CoUrt asserted that "any ruling by this Court following Phase Il will not applyto the class members who have received these statements because the statements purport to be final and non-appealable historical statements of account." Id. The Court concluded that, "[i]n effect, these members will be involuntarily opted out of Phase II of this litigation because they will not receive the benefits of any remedy that might be ordered." Id. The Court expressly noted that it "does not find objectionable the fact that defendants mailed statements of accounts to individual class members," Op. at 9, but held that it was "improper" for the defendants to send "notices to individual class members that have the effect of extinguishing the rights of those class members without first seeking the approval of this Court." Id. Employing the same rationale, the Court also concluded that the statements to account holders necessarily constituted communications "about the subject matter of the representation" as defined in Model Rule of Pro f. Conduct 4.2(a), rather than communications in the regular course of business. Id. at 16. The Court referred the six DOJ attorneys who appeared on Interior's motion notifying the Court that Interior was providing statements of historical accounts to the Court's Grievance Committee for investigation for violations of Rule 4.2(a), prohibiting communications by attorneys with parties concerning the subject matter on which they are represented by counsel. Finally, invoking its equitable authority under Rule 23 (d), the Cot_ refused to authorize the mailing of 14,235 additional historical statements of account on the ground that it was not clear "whether these statements will contain notices that will extinguish the rights of these thousands of class members," and that the "prospect of this mass mailing thus presents a significant risk of serious interference with the rights of class members." Op. at 9. Although the Court expressly stated in its memorandum that Interior could -6- "continue engaging in the regular sorts of business communications with class members that occur in the ordinary course of business," id. at 10-11, the language of the Court's order sweeps far more broadly, prolfibiting any communication by"the parties to the litigation, their agents and officials, and their counsel ... with any class member in this litigation regarding this litigation or the claims involved therein, except as specifically permitted by order of this Court." Id_. at 18-19. "This restriction includes, but is not limited to, any communications that affect the rights of class members to a full and accurate accounting of the Individual Indian Money trust accounts." Id. at 19 (emphasis added). 2 8. Although a broad construction of the Court's order would arguablypreclude Interior officials, their agents, and even plaintiffs' counsel, from communicating with class members concerning any matter related to IIM trust accounts or a variety o fother fiduciary activities- because these matters are all broadly "related to" this litigation - Interior has relied upon the Court's statements allowing day-to-day communications that the agency would otherwise be making independent of the litigation as a limitation on such a broad construction. Given the Court's statements that Interior may "continue engaging in the regular sorts of business conmmnications with class members that occur in the ordinary course of business," Op. at 9, Interior understands the Court's order to bar only those communications with class members that could be construed as affecting their rights in this litigation, not any matter that arguably concerns this case. Thus, for example, i fan IIM beneficiary called to inquire about the current balance in his 1154 trust account, Interior would provide a response even though this could be construed as a communication with a class 2 Although the Court's order also states that it "does not prohibit defendants from communicating with class members in the ordinary course of business on routine matters _mrelated to the instant litigation," Op. at 19, it is not clear that this limits the order because virtually any matter concerning IIM trust accounts - whether routine or not - is arguably "related to" the litigation. -7- member concerning matters involved in this litigation. Likewise, Interior would respond to inquiries by an account holder concerning the status or timing of the next distribution from his or her account, because any other interpretation of the Court's order would needlessly impede the agency's ability to serve IIM trust account holders and communicate with the public about IIM trust matters. We are informing the Court of that understanding so that it may advise Interior innnediately if this construction of the order is erroneous. DISCUSSION I. THE COURT ERRED IN CONCLUDING THAT INTERIOR'S STATEMENTS CONCERNING ADMINISTRATIVE APPE._ RIGHTS PURPORT TO EXTINGUISH CI,ASS MEMBERS' RIGHTS IN THIS CASE. The fundamental predicate for this Court's holding that Interior's communications with class mcmbers were improper is that these connnunications "purport to extinguish the fights o fclass members." Op. at 4. That conclusion is mistaken, as is the Court's consequent decision to refer several DOJ attorneys to a disciplinary panel for possible violations of the ethics rule prohibiting contacts by attorneys with parties represented by counsel about matters in litigation. Accordingly, this Court should exercise its broad discretion to grant Interior's motion for reconsideration, see Cobell v. Norton, 226 F. Supp. 2d 175, 177 (2002), and should vacate its holding that Interior made improper commtmications with class members and rescind its referral of various DOJ attorneys for disciplinary investigation. By sending statements of historical accounting to approximately 1,200 account holders and preparing such statements for an additional 6,700 account holders, Interior sought to fulfill its statutory obligation to perform historical accountings in a reasonable period of time. By including an explanation of thc process whereby account holders could challenge the accuracy of their statements in administrative -8- proceedings, Interior sought to accurately represent the filll range of options- and the applicable deadlines - to account holders. Indeed, had the agency not included such disclosures of administrative remedies, it could potentially have subjected itself to charges that it was providing misleading or incomplete information to account holders. Contrary to this Court's conclusion, the notices did not "purport to extinguish" the rights of individual class members in this case. Nowhere in Interior's explanatory letter to account holders is there any reference to this case, much less to any settlement or release of claims in this case. Indeed, the sole statement that could even arguably be construed to "extinguish" any claims relates, on its Pace, solely to the administrative claims process to challenge the accuracy of the accounting statement provided. See 67 Fed. Reg. 57121 (Sept. 6, 2002). But that process in no way purports to supersede any proceeding under which this Court might ultimately conclude that a new or different accounting might be required. The notification made clear that recipients could bring to Interior's attention any information they believed relevant within a sixty-day period. Following that period, Interior would treat the individual accounting as final, absent further orders in this litigation calling into question the validity of the accountings under applicable statutory standards. In light of the Phase II proceedings identified by this Court to adjudicate the validity of any accomltings, hltcrior's statements concenting the administrative "finality" of these account statements could not reasonably be construed as "extinguishing" any rights in this case. The Court's ruling misconceives the nature of this action. The class in this case was certified under Fed. R. Civ. P. 23(b)(1) and (b)(2), provisions applicable solely to claims for general injunctive relief. This is an APA suit to vindicate the collective rights of class members to an accounting, not an action for individual damages under Rule 23(b)(3); class members have no notice and opt-out rights. See Eubanks -9- v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997) (noting absence of notice and opt-out fights in (b)(1) and (b)(2) class actions). Thus, there is no possibility that a class member could "settle" an individual claim in any way that couldj eopardize the Court's authority to compel a complete historical accounting to benefit all class members. In contrast, the case upon which this Court relied for the proposition that parties maynot engage in communications with class members that have the effect of extinguishing their rights, Kleiner v. First National Bamk of Atlanta, 751 F.2d 1193 (11 th Cir. 1985), involved individual claims for monetary dmnages under Rule 23(b)(3). Although this Court stated in its memorandum that nothing in Kleiner would limit its applicability to claims under Rule 23(b)(2), Op. at 6 n.4, the concern with soliciting opt-outs is simply not present in a (b)(2) case, because "the defining characteristic of the (b)(2) class is that it seeks declaratory or injunctive relief applicable to the class as a whole." Eubanks, 110 F.3d at 92. More importantly, Kleiner involved clear-cut efforts by a defendant bank to solicit opt-outs that resulted in opt- out commitments from over 2,800 of the 3,000 potential class members contacted - even before many of the class members had received the court-approved notice of the class action. Kleiner, 751 F.2d at 1198. No similar conduct occurred in this case. Even if Interior's statements to account holders concenfing their administrative appeal rights could conceivably be constrned as affecting class members' rights to an accounting in this case - an inference that would be unwarranted given the context in which those statements were made- that is nothing like the express solicitation of opt-outs in Kleiner. Moreover, there is no evidence that any class members actuallyunderstood Interior to be attempting to extinguish their claims in this case; indeed, plaintiffs' counsel never made this argument until after the Court expressed concerns about this issue at the hearing. -10- The Court erred in its understanding o fboth the notice and the relief at issue when it concluded that, "[b]ecause of the wording in the notices included in the statements.., any ruling following Phase II will not apply to the class members who have received these statements because the statements purport to be final and non-appealable historical statements of account." Op. at 4. The availability of any remedy in this litigation depends solely on memberstfip in the class. So long as an individual is a class member, he or she will not "be involuntarily opted out of Phase II of this litigation." id. Interior was not required to include an express disclaimer that the failure to pursue administrative remedies would not affect any class members' rights in this case. Indeed, such a disclaimer would have been peculiar- and perhaps confusing- in a letter to account holders that nowhere referenced this case in any foml, and thus could not reasonablybe construed as settling claims arising from it. Nonetheless, once the Court raised this issue- at the November 1,2002 hearing- Interior promptly offered to include a notice concerning this case in future statements to account holders and to provide a supplemental notice to the account holders who have already received statements? See Interior Defs' Supp. Opp. to Pls' Mot. for a Prelim. Injunc. Regarding Historical Statements of Account, at 8. Interior again renews its offer to provide an express statement to account holders that any failure to file an administrative appeal within the 60 day period does not extinguish the beneficiarfs right to an accounting as maybe determined ii1 this case. 3 Prior to the hearing, plaintiffs never opposed the distribution of account statements to class members on the grounds that they purported to extinguish class members' rights in this case. Instead, without having reviewed the statements, plaintiffs argued solely that they were inaccurate. Interior thus had no occasion to address this issue until the Court raised it at the November 1, 2002 hearing. -11- II. THE COURT'S REFERRAL OF DOJ ATTORNEYS FOR A DISCIPLINARY INVESTIGATION IS INDEPENDENTLY WITHOUT LEGAL BASIS BECAUSE ATTORNEYS HAVE NO DUTY TO PREVENT THEIR CLIENTS FROM MAKING COMMUNICATIONS WITH REPRESENTED PARTIES. As explained above, the communications by Interior to IIM account holders were made in the regular course of business and did not extinguish the rights of class members in this case. They were thus appropriate. Even assuming those communications could be characterized as ill some way improper, the Court's referral of DOJ attorneys for allegedly engaging in improper communications with represented parties in violation of Rule 4.2(a) of the District of Columbia Rules of Professional Conduct is unwarranted, because the attorneys themselves did not make the communications to the class members. "[T]herc is notking [itl the professional rules of conduct] that protfibits one party to a litigation from making direct contact with another partyto the same litigation." EEOC v. McDolmell Douglas Corp:, 948 F. Supp. 54, 55 (E.D. Mo. 1996). Moreover, the DOJ attorneys were under no obligation to prevent communications made by their client (Interior) to its IIM account holders. See Miano v. AC&R Advertising, Inc., 148 F.R.D. 68, 81-90 (S.D.N.Y. 1993), adopted and approved, 834 F. Supp. 632 (S.D.N.Y. 1993). Indeed, the ABA has withdrawn its prior opinions which had held that Rule 4.2(a) was violated if an attorney failed to discourage his client from contacting the opposing party. See ABA Connn. on Ethics and Prof. Responsibility, Formal Op. 84-350 (May 7, 1984). Likewise, the D.C. Circuit has made clear that an attorney is not responsible for communications made by another unless that person is acting as the attorney's "alter ego." See United States v. Lemonakis, 485 F.2d 941,956 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974). Because the communications at issue were clearlymade in the regular course ofbusiness between Interior and its IIM beneficiaries, no basis exists for a disciplinary referral under -12- Rule 4.2(a). Finally, the Court could not properly discover a violation of an ethical duty by six DOJ attorneys on the sole ground that their names appear on the signature block on the September 10, 2002 motion that informed this Court that Interior would be sending statements o fhistorical account to certain IIM account holders. The DOJ attorneys are thus being referred for disciplinary action for representing their clients in court and providing the court with notice that their client would be sending statements to IIM account holders. That referral is improper. CONCLUSION For the foregoing reasons, the Court should _ant the Interior defendants' motion for reconsideration, vacate its order holding that Interior made improper connnunications with class members, and rescind its referral of government attorneys for disciplinary investigation. Respectfully submitted, ROBERT McCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General -13- J. CHRISTOPHER KOHN Director /, ] /'""J %ANDRA P. SPOONER - (_ Deputy Director "-.......) JOHN WARSHAWSKY (D.C. Bar No. 417170) Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 January8,2003 -14- IN THE UNITED STATES DISTRiCT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the hlterior, et al., ) ) Defendants. ) ) ORDER This matter comes before the Court oll Interior Defendants' motion for reconsideration of order prohibiting communications with class members. After considering that motion, any responses thereto, and the record of thc case, the Court finds that the motion for reconsideration should be, and hereby is, GRANTED. It is further ORDERED that the Court's order dated December 23, 2002, pursuant to Rule 23(d) is vacated, and it is further ORDERED that the Court's referral of government attorneys for disciplinary investigation set forth in the Rule 23(d) order is rescinded. SO ORDERED this __ day of ,2003. ROYCE C. LAMBERTH United States District Judge CC: Sandra P. Spooner John T. Stemplewicz Cynthia L. Alexander Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 514-9163 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 Fax (202) 318-2372 Keith Harper, 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 Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 Fax (202) 986-8477 Joseph S. Kieffer, III Special Master- Monitor 420 - 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 United States Department of the Interior OFFICE OF HISTORICAL TRUST ACCOUNTING 1801 Pennsylvania Avenue. NW. Suite 400 .-,_z · Washington, DC' 20240 Phone I2a2) 327-53C0 Fax (202) 327-5,375 October 9, 2002 Parent(s) or Guardian of John IL Doe Re: Individual Indian Monet Account/S 607/XXXX:X P. O. Box >cx_'x Whiteriver, AZ _-,ccxx Dear Parent(s) or Guardian: This letter and the three enclosures are being sero to you because you are the parrot(s) or guardian of_e abov_ framed account holder, who has at least one _dividual Indian Money ('[Ilvl) account managed by the l.Mited Stales EX:paru-nmt of the Interior ODOr). This lerter and the thr_ enclosures apply only to the rim account v,ialch contains a share of $ertlemcmt monies rcmeived by the acc.otmt holder's tribe, the White Mountain Apache Tribe of Arizona. IDOl's Office of I--r..tstccical Trust Accounting (OlffrA) recently performed an accounting of this account from thc dine it was opened through December 31, 2000. You will find a Historical Statement of ACCOUnt endoc_d ,,villa this leaer. Plea_ read the following in.Fommfion in this lener and the three endosur_ carefully. They provide you with the following important information aN:_t the account. · Accounting Re:suks: Important informariou aNmt the account, including limitations on the accounting f'"'" and vðer errOrS or l_ were detected - Accounting Approach: How the kistorical acw.rxmting was performed · Yr,.at You Should Do Next: Important &ndlines for re_pond/ng to and challenging the historical accounting · YO_ Appeal R/ghts: Howyou c.an ap_ re the Interior Boa.rd oflBdinn. Appe_ ([BIA) · Qu_tions: Who will ansarer quexticc_ and where you may oN.Mn add/tional information Accou_tinF_ Results. The account was e_tablish_xl for the account holder in 1995' to rc_..2ve a share of a payment that v,_ made to settle a claim filed _ White Mountain Apache Tribe of Arizona v. Un/ted States. Court of FederaI Cia/ms l__ket No. 22-I-L As an re.rolled member of_e White Mountain Apache Tribe as of April 29, 1997, the account was credited urith a paymcm ors $1_°nof_f°veml:_:r 3, 1997. AS of December 31, 2000, the account t'_.dance totaled $_, including interest The balance shown on the l--Faxtorical Statement of Account as of December 31, 20(X), agrees with the balance maintained by DO['s OflSce of Tm_ Funds Management (OW'M) as of the same date. 'Ibc accompanying .Wz.qoric_ Stat_'nent of Account details the receitTts , interest, and other ac-[ivity for the acceunt holder's account from the opening deposit through December 31, 2000. Please note that the account balance shown is for December 31, 2000. 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'mopq qucrj _os _-e uama_jo so_m lenmm '.ta^oa_oq 'olqei.mAe ,([51moa lou ore sptmj imlnua _m/nolioJ _¢ ,toj u.m:_ jo s_lm Xl'q_olN 's_In. anoas OSFI m_ 'mmo_ .toq_.rq sntI1 ptm 'aol_eJ _sp Jaq_.rq luaso.tdo_ S_A!I_A[_ p Xll_.wuoO 'smom_z_e os-'eq_md,_ Se q,rts S*A_.II_A!_p _ polsaAm, st purg Immm _u-_oiIoJ _I1jO SlU*UilS*At-'7. _qlJO uo!uod 's_u_m_s,Am pun 3 _srul _II _¢ *-'1!.¢i'1 'DS.fl _q: _q po_:u_,ru_ so!:.tmoas _o s,p_.m3_s O813. m. Klledpm_d _soxm. ol s._ ,^two.fqo m,qm spun.j immm jo ._mnu _ ;_ _.mq_£ _`_-_.?;_:._``_._!4_t_`_._.._``_`_._._:_`_;_:_:*?_:_._._::_::_`q If you wish to challenge the results shown on the Information on thc rules and guidance for ,.,?? .'_.,_ xO_ _.:'_ce ._._:;_,_-.,..,_, account statement: filing a Notice of Appeal with IBIA can be - found in Title 43 part 4 of the Code of Federal [our tfistorical Statc'mcnt of Account describes 1. Provide a written explanation and any supporting Reg_dan'ons and in the Federal Regis/er notice he transactions associated with either ajudgmcnt documents within 60 calendar days of the postmark published September 6, 2002. x,count or a per capita individual Indian Money on the envelope to: ![M) account. If your llM account is ajudgrnent ,._ .........._,_ _ _._ ,_.._._ _. :g._-_._ _ccount, money was awarded to the Tr/be as the Executive Director .:_., -- ;_. , '_' . ._ . -_ _J s_it:_ ,'. _} csult ora lawsuit and then distributed to each Office of Historical Trust Accounting .. .nrolled member of the Tribe. Per capita funds U.S, Department of the Interior ,dso rcprcsent Tribal paymenls to individuals but 1801 Pennsylvania Ave., N.W., Suite 400 [17_y areyou receiving this account :he money comes from a source other than a Washington, D.C. 20006 .ctatement? ladgment award, such as Tribal timber sales. The I[etails of your account ,are included in the 2. If you need more than 60 days to review or Th_ American Indian Trust Fund Management tistodcal Statement of Account. challenge the Historical Statement of Account, you Reform Act of 1994 provides that IIM account ...... , · ...... may request a 30-day extension by contacting Office holders be given an accounting of thc fimds ?:_.`i:_5._?;<_yr_>_`_r:_r;:_`_`:_`._.:._r_`_`_.e_:`:_:s`_.<_[_:c_5_ of tlislorical Trust Accounting (OHTA) in writing at held in trust. Your Historical Statement of ..... _ ._. _.',1_;4.,. :.,,..... _,_ _,...-_:. ....,.:-,.......... _._,,_..r._. _ Account has been prepared to assist you in understanding thc transactions affecting the "our account opens with a beginning balance of 3. If you do not challenge the account statement or funds in 5'our accotmt. ere. The first transaction identifies the judgment request an extens{on within 60 calendar days of the , r per capita payment nmcle into ),our account, postmark on the envelope conlaining this letter and t_Tty does the historical accounling end on _iach entry after that rcpresents a transaction statement, the account statement wiJl be final and December 31, 2000? cannot be appealed. .ccurring in the account. A dale and description , f each transaction is included in your statement. December 3 l, 2000, was selected because all "our stalemcnt ends with the account balance as 4. OHTA will consider any explanation you provide Bureau of Indian Affairs (BIA) Regions and , f December 3 t, 201)0. THIS IS NOT THE and respond to you within 30 calendar days from the Agencies had convened to the Trust Funds ._URRENT BALANCE. Unless otherwise staled postmark on your challenge. OItTA's conclusions on Accounting System (TFAS) by this date. the cover letter, our revicw ofyour account your challenge will be provided in writing and will be Quarterly statements have been mailed for liN{ .onctudes that the judgment or per capita indicated as OHTA's final response, accounts since early 2000, except for estate .ayment, account transitions, and the December accounts and account holders whose current · If after receiving a written notice from OHTA address is unknow-n. 1, 2000, balance are correct, indicating it is a final response, you wish to appeal _._._._*:J_;_?C.`_.._*..*_._._`_z_.``3}_z`rg_`_Z.__i_;_k_ the account statement, you must file a Notice of Bql/you receive a check for the balance '_"_'__'___'_ _ "_"_____¢''_ ' '_ "' ......... _:_'_'.,_'_'"_L_:_'a_-_l Appeal wilh the Interior Board of Indian Appeals shins,n? .................. ........_'_'_ 0BIA) within 30 calendar days of receipt of OHTA's final response which will clearly be identified "Final No, this accounting is similar to a hank Carefi.:lly rc. vlew the Historical Statement of Response." Together with its fmat response, OHTA statement. The purpose of the accotmting was ,recount and compare it to your records, will furnish you with information about how to file an to review your accoum and make sure it was If you agree with the rcsults shown on the appeal with IBIA. correct as of December 31 2000. ccount statement, please retain it with your other ._cords. _:_¥_¢_.. 2____ '-_._i_,-_¢_ Does you r Hixtarica I Statement ofA cco u n t cover No, your Historic.at Statement of Account only U.S. DEPARTMENT Are.},ou roved money? addresses the trm_sactions occurring for the judgrncnt or per capita account number identified OF THE INTERIOR Thc amount shown on your Hisloric;d on the Historical Statement of Accotmt. Statement of Account represents the balance of your llM account on December 31,2000. Hm,, can y_u report a change of address? For information regarding account activity Historical statements of account for judgment and balances M'tcr Decemhet 3 l, 2000, please accounts are being scut to fi_e partmts or guardians refer to the quarterly Statement of Account or IIM account holders. To report a change in sent _o you by the Department of the Interior addsess, please call or write your local BIA Office of Trust Funds Mam'tgement (OTFM). Agency office. In m_ attempt to locate IIM account 'The amount shown on your most recent holders whose acz,ount statements are returned to ;Statement of Account is the balance held in OHTA by the U.S. Postal Service as not Itrusl for you as of thc date of the Statement, deliverable, the names of those whose Historical _xnd will be paid subject to applicable terms of Statement of Account is returned will be posted on ,.four account, the OHTA website, www.doi,gov/ohla. These names will also be available for review at your ig_hat time pein'od is covered by the historical Tribal Headquarters, BIA Agency oftSccs, and :wcountlng? OTFM locations. i_,_-_g,_*_--_-,- _. _.,_ _ _,_-¢_____,,.,__.,______ ::oncludes on December 31, 2000. The l_._?:-'_c'_'_,-,_.-'_'_.¢? -*,_-._.,e_4_<__:%._? ,'_ ....,e'"_"-_"___'-_,-__.--__ _-__'_i_',_'_ itccount balance shown for Docember 31, 2000, is NOT THE CURRENT BALANCE. You can requ_-st more information by mail, telchone, or intemet. ,_o,, _a. yo. j_.d o.t you_ ,M acco..t ? '_: In forma/iott Ot_ ;tctivi O, after December 3 i, 2000 ? Mail: /.,.._ ' . '* - _' · 4)' u.s. Dcpm_n:=t or thc _t_no_ HistoricM A cctm t, t_ng i)TFM periodically provides a Statement of Offic_ of Historical Trust Accounting '%.ceoant for IIM accoums. The most recent Ig01 Pmansylvania Avenue, N.W., Suite 400 i;tatement of Account provided by OTFM Washington, DC 20006 of Jtttlj,_melt/ and ,viii include the balance for your IIM acoaunt [s of'the date of that Statement. lfyou ,,Ash Telephone: Per Capita !IM ,,4_rou_tta o obtain the currcmt balance, you should :ontact your local BIA Agency Office or 1-888-329-5562 '.)TFM toll free at 1-888--OST-OTFM (88g- ;_'_:'_ i;7g-6836). Elcclronic Mail: OHTA(_ios.doi.gov ::'_::-:_. OFFICE OF HISTORICAL TRUST ACCOUNTING .. INDMDUAL INDL&N MONIES TRUST FUNDS HISTORICAL STATEMENT OF ACCOUNT . " TO TEIE PAJLE1N_r(s) OR GUARDIAN OF ACCOUNT OF .. ACCOUNT NrUSfBER .... " PO BOX / WHITE_R AZ 85941 As explained in the attached Historical Statement of Account transmittal letter, the account balance at December 31,2000 was $_. This balance was composed of the following: Judgment award from Docket 22-H Cumulative interest Ending balance as of December 31,2000 $_ The account activi _ty is detailed below. Interest was calculated based on average daily balance using the interest factor determ/ned for each per/od by Interior's Office of Trust Funds Management. This factor, which may vary by per/od, is based upon the IIM Trust Funds' investments. Please note, the account balance shown is for December 3 1, 2000 (the date through which the historical accounting was performed). For account act/viry and balances after December 31, 2000, please refer to the quarterly Statements of Account. TRA2'4SACT1ON ACTIVITY FOR ACCOUNTENG PERIOD: 11/3/1997 T1TROUGIq 12/31/2000 TRANSA CTI ON DOCU-M2ENT REFERENCE DATE AMOUNT DESCRIPTION (If calling, this information may be needed.) BE GL-N'NIN G BALANCE 11D/1997 _ Receipt of judgment award- Collection Docket 22-H JUDGMENT PER CAPITA 12/18/I997 _ Monthly Interest Journal Voucher MONTHLY - AUTO 1/15/1998 ._'_l Monthly Interest Journal Voucher MONTHLY - AUTO 2/19/1998 _.._[_ Month/y Interest Journal Voucher MONTHLY - AUTO EltstoHcal Statement ofAccount - Accoun_lll Page 1/4 .. TRANSA CTI ON DOCU]%_NT REFERENCE DATE AMOUNT DESCRIPTION (If calling, this information may be needed.) 3/30/] 998 _ Monthly Interest Journal Voucher MONT'HLY - AUTO ",;'/27/199g _ Monthly Interest Journal Vouch_'_ _. _ MONTHLY - AUTO 5/28/1998 Monthly Interest Journal Voucher MONTHLY - AUTO 6/26/1998 Monthly Interest Journal Voucher MONTHLY - AUTO I 7/30/I 998 Monthly Interest Journal Voucher MONTHLY - AUTO mm{ {{{ {{ { 8/21 /1998 MontEy Interest Journal Voucher MONTHLY - AL7I'O _ III I 9/28/1995 Monthly interest Cash Receipt MONTI-ILY INTEREST EA_x,FINGS DO CU'ME_xFr 10/30/199 S Monthly Interest Cash Receipt MONTHiLY INTEREST EARNINGS DOCU m r ] 1/19/] 998 Monthly Intel'esl Cash Receipt MoN'n-mv TER.EST ras DOCUMENT 12/18/199 g Monthly Interest Cash Receipt MONTI-ELY INTEREST EARNINGS DO CU2,4ENT _' 1114/1999 Monthly Interest Cash Receipt MONTHLY INTEREST EARNINGS DOCUMENT 2/18/I 999 Monthly Ln_erest Cash Receipt l'd ON-I'HLY ENTER.EST F_.ak.R.N_GS DOCL_tlENT 3/18/1999 Monthly Interest Cash Receipt MONTI-_Y INTEREST EARNINGS mi D OCLVMZgqT # 4/19/1999 _ Monthly Interest Cash Receipt MO_q-I_Y ENq"E1LEST EA_R.N'_GS DOCLrMiENT o,l_ I _ I Elistorical Statement of Account - Accoun_ Page 2 /4 t TRANSACTION DO CI.)2VEENT REFERENCE DATE AMOUNT DESCRIPTION (If calling, this information may be needed.) 5/18/1999 Monthly Interest Cash Receipt MONTHLY INTEREST EARNINGS ilo CLTMENT IIIII lC. 6/16/1999 Monthly Interest Cash Receipt MONTHLY INTEREST EARNINGS DOCUTv_ 7/14/1999 Monthly I.merest Cash Receipt MONTHI, Y INTER.EST EARNINGS Monthly Interest Cash Receipt 8/19/1999 MON'I"H1Y INTEREST EARaNINGS DOCUNfENT; .... 9/16/1999 _ Monthly Interest Cash Receipt MONTHI. Y INTEREST EARNINGS DOCUMENT 10/21/1999 _ Monthly Interest Cash Receipt MONT3[LY INTEKEST EARNINGS DOCUN_NT 11/18/1999 Monthly Interest Cash Receipt MONTHLY INTER.EST EARNINGS DOCUMENT/I 12/17/1999 Monthly Interest Cash Receipt MONTHI. Y INTEREST EAJCNINGS DOCUMENT / I Illllll 1/24/2000 Monthly Interest Cash Receipt M ON'rHI.Y INTER.EST EA__NI2qGS DOCUMENT I Monthly Interest Cash Rcceipt 2/23/2000 MONTHLY INTER.EST EAJLNI]qGS 'DOCU3fENT 3/17/2000 M Monthly Interest Cash Receipt MONTHLY D,FFEREST EARNINGS DOCUNfENT 4/21/2000 Monthly Interest Cash Receipt MONTI-_Y INTER.EST EARNINGS 5/18/2000 Monthly Interest Cash Receipt MON-I3tLY INq"EREST E,_,_N12qGS D O CU_IZE'NT #111mlmmJ_J_mB* 6,/15/2000 _ Monthly Imerest Cash Receipt MONTHLY INTEREST EARNINGS DOCUMENT # ' -" 1JJstorical Statement of Account - Account-__ Page 3 / 4 ' TRANSACTION D OCLr3I'E, NT REFERENCE DATE A_MOUNT DESCRIlPTION ('If calling, this information may be needed.) 7/20/2000 Moathly Interest Cash R¢ceipt MONTHLY INTEREST EARNINGS DOCUMENT f;_ ...... 8/17/2000 _ Monthly I_nteres( Cash Receipt MONTHLY DrIER.EST EAY,.NINGS 9/6/2000 Monthly Interest Cash Receipt M ONTI-ILY INTENT EARNINGS DOCU'M_NT 10/4/2000 _ Monthly Interest Cash Receipt MONTHLY INTEREST EAY,.NINGS DOCUMZNT 11/3/2000 Monthly Interest Cash Keceipt MONTHLY INTE_ST EARNINGS DOCUMENT 12/5/2000 Monthly Interest Cash Receipt MONTHLY D/TEREST EA.RaNINGS DOCUMENT #_ _ 12/31/2000 BAL._CE AT DECE_IZBER 31, 2000 Please note the ending balance is NOT THE CUR.RENT BALANCE of your IIM account. The account balance shown is for December 31, 2000 (the date through which the historical accounting was Pefformed). If you have questions about this Histor/cal Statement of Account, please call the Office of Historical Trust Accounting toll free (888) 329-5562. For account activity and balanceg after December 31, 2000, please refer to the quarterly Statements of Account. If you have questions about your quarterly Statements of Account or your current IIM account balance, please call the Office of Trust Funds anagement toll free (888) 678-6836. E[isloHcal Statement of Account, Accoun_ Page 4 /4 CERTIFICATE OF SERVICE I declare under penalty of perjury that, on January 8, 2003 I served the foregoing Interior Defendants' Motion for Reconsideration of Order Prohibiting Communications with Class Members by facsimile in accordance with their written request of October 31, 2001 upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20036-2976 Ninth Floor (202) 822-0068 Washington, D.C. 20004 (202) 318-2372 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 By Hand upon: Joseph S. Kieffer, III Special Master Monitor 420 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 (202) 478-1958 l_evin P. Kingston //' at