UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
_________________________________ 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
v. 
)
)
)
)
)
) 
GALE A. NORTON, Secretary of the ) 
Interior, et al., 
)
)
) 
Defendants. 
_________________________________) 
DEFENDANTS' MOTION TO STRIKE 
PLAINTIFFS' "EMERGENCY NOTICE" 
Pursuant to Federal Rule of Civil Procedure 12(f), Defendants respectfully move to strike 
Plaintiffs' "Emergency Notice of Individual Indian Trust Records in Imminent Risk of 
Destruction and Loss" (filed April 28, 2004) ("Plaintiffs' Notice").1 In a case in which it has 
become customary for Plaintiffs to dispense with even the most basic evidentiary requirements, 
their latest filing lacks even a pretense of legal competence. Through their notice, Plaintiffs 
purport to "inform" the Court that Defendants have placed trust records "in imminent risk of loss, 
corruption, and destruction." Plaintiffs offer no competent evidence in support of this now 
boilerplate allegation. They include with their submission no affidavit, declaration, or qualified 
documentary proof of the statements they seek to make part of the public record. Rather, they 
rely solely on two letters that contain a laundry list of allegations from sources unknown, as well 
as unseemly personal slurs directed at Interior officials. The filing of these unsupported and 
derogatory materials is improper on its face, and they should be stricken from the record. 
1 Defense counsel has consulted with Plaintiffs' counsel, who state that they oppose 
this motion. 
Case No. 1:96CV01285 
(Judge Lamberth)
ARGUMENT 
Plaintiffs seek to place in the record assertions from unidentified sources that are neither 
supported nor verifiable. In dramatic fashion, Plaintiffs announce that they have received 
"extremely disturbing information concerning the current status of records retention" at the 
Department of the Interior ("Interior").2 But they provide no evidence at all for this 
"information." Instead, Plaintiffs accuse Interior of wrongdoing based entirely on accusations 
from secret sources. Only in a Star Chamber proceeding could the submission of such charges as 
evidentiary fact be taken seriously.3 
The allegations Plaintiffs seek to make part of the record are contained in two letters they 
attach to their notice. The sources of the charges in neither letter are identified, much less 
supported by sworn testimony from individuals with knowledge of the matters asserted. In the 
first, which purports to be written by some Interior employees, not only are the authors 
unidentified, but they promise to deny ever having written the letter if asked. Letter from 
unidentified sources to Elouise Cobell of 3/21/04, attached to Plaintiffs' Notice as Exhibit 1, at 
2 Plaintiffs' characterization of their filing as an "emergency notice" is dubious on 
its face, given that they waited well over a month after receiving the subject letters to file their 
notice. 
3 The relaxed evidentiary standards to which the Plaintiffs hold themselves stand in 
stark contrast to their insistence that Defendants not only provide sworn jurats attesting to 
matters relevant to information technology security, but that such jurats not be limited to matters 
within the affiant's knowledge, information or belief. See Plaintiffs' Comments on Interior 
Secretary Gale Norton's and Acting Assistant Secretary Aureen [sic] Martin's Proposed 
Procedures to Reconnect Information Technology Systems Which House or Access Individual 
Indian Trust Data (filed Sept. 10, 2003) (arguing that Interior's "understanding of 'adequate 
evidence' consists of . . . defective jurats, rendering the purported 'certification' evidentially 
incompetent and patently unreliable."); see also Mem. Op. (Mar. 15, 2004) at 8-11. 
2
1.4 Thus, the allegations are neither supported nor verifiable.5 The second letter, written by a 
union representative, repeats allegations purportedly conveyed to her by union members, none of 
whom is identified. Letter from Susan Sandoval, Field Representative, Indian Educators 
Federation, AFT, AFL-CIO to Michael M. Billings, Labor Relations Officer, U.S. Department of 
the Interior, of 3/14/04, attached to Plaintiffs' Notice as Exhibit 3. Thus, it consists entirely of 
hearsay derived from anonymous sources. These facially incompetent letters and Plaintiffs' 
repetition of their contents have no legal pertinence nor, therefore, a place in the public record. 
See Pigford v. Veneman, 215 F.R.D. 2, 3 (D.D.C. 2003) (striking papers filed by class counsel 
alleging racism against Government counsel where it "provided no factual basis or evidence in 
support of its charges."); Alexander v. FBI, 186 F.R.D. 21, 53 (D.D.C. 1998) (finding "no 
evidence to support the claim made by plaintiffs" and, accordingly, striking it from the record). 
Plaintiffs' Notice and its attachments should be stricken. 
4 The anonymous letter submitted by Plaintiffs appears to be motivated, at least in 
part, by labor issues relating to the potential relocation of jobs from Albuquerque, New Mexico 
to Interior's new facility in Lenexa, Kansas. See Plaintiffs' Notice, Ex. 1 at 2-3 (suggesting the 
facility should have instead been built in Albuquerque); id. at 6 ("A facility needs to be 
constructed in Albuquerque for the records."). This litigation is not the proper forum in which to 
raise such issues, regardless of the manner in which they are framed. 
5 Aside from being barren of evidentiary support, the anonymous letter also 
includes derogatory slurs (including race-based remarks) against certain Interior officials, see 
Plaintiffs' Notice, Ex. 1 at 2, providing an additional ground for striking the material. See Fed. 
R. Civ. P. 12(f) (court may strike from any pleading "any insufficient defense or any redundant, 
immaterial, impertinent, or scandalous matter"); Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 
2003) ("The word 'scandalous' in Rule 12(f) 'generally refers to any allegation that unnecessarily 
reflects on the moral character of an individual or states anything in repulsive language that 
detracts from the dignity of the court.'") (quoting 2 Moore's Federal Practice § 12.37[1] at 12-93 - 
12-94 (3d ed. 2002)); Johnson v. McDow, 236 B.R. 510, 523 (D.D.C. 1999) (striking 
"scandalous and highly insulting allegations" from the record). 
3
As Plaintiffs have put forth no evidence, nor sought any relief (bringing into question 
their motives for filing these materials), no substantive response to the accusations contained in 
their notice is required. However, it warrants mention that, shortly after receiving the letter from 
the union representative, and well before Plaintiffs filed that letter with the Court, Interior 
provided a detailed response to the concerns she raised. See Letter from Michael M. Billings to 
Susan Sandoval of 3/25/04, attaching Letter from Ethel Abeita, Director, Office of Trust 
Records, to Michael Billings of 3/23/04 (a copy of the letter, which Plaintiffs did not attach to 
their notice, is attached hereto as Exhibit 1). 
For example, in response to questions concerning the condition of boxes in which records 
are being kept, Interior explained that, while some boxes received from the field were in poor 
condition, the vast majority of records are being stored in boxes that are in satisfactory condition, 
and any damaged records that are discovered are repaired and placed in protective sleeves. Id. at 
2. With respect to a concern that there is no protocol to guarantee that contractors do not place 
original documents in a "shred box," Interior explained that there is, in fact, a protocol for 
reviewing such boxes and that, in any event, no documents currently are being shredded. Id. at 3. 
Interior also informed the union representative, in response to a complaint that employees lack 
sufficient time to verify the contents of boxes against inventories, that the contents of boxes are 
being indexed, archives technicians will be assigned to randomly check boxes being shipped, and 
upon receipt, NARA performs random quality assurance checks of the boxes to determine if the 
series are correctly identified and the dates accurate. Id. Interior responded in like fashion to 
each issue raised in the union's letter and, while the procedures it described may change at 
Interior's discretion, as necessary to effectively implement records management and protection, 
4
its response to the union letter demonstrates that Interior is taking appropriate steps in this regard. 
CONCLUSION 
For all of the foregoing reasons, Defendants respectfully request that the Court issue an 
Order granting their motion to strike Plaintiffs' "Emergency Notice." 
Dated: May 12, 2004 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ John T. Stemplewicz 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
5
CERTIFICATE OF SERVICE 
I hereby certify that, on May 12, 2004 the foregoing Defendants' Motion to Strike 
Plaintiffs' "Emergency Notice" was served by Electronic Case Filing, and on the following who 
is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
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 NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on the Defendants' Motion to Strike Plaintiffs' "Emergency 
Notice". (Dkt. # ______ ). Upon consideration of the Defendants' Motion, any opposition, and any reply 
thereto, the applicable law and the entire record of this case, it is hereby 
ORDERED that the Motion to Strike is, GRANTED and; 
It is FURTHER ORDERED that the Clerk of the Court is directed to strike said Emergency 
Notice of Individual Indian Trust Records in Imminent Risk of Destruction and Loss (Dkt. # 2564) from 
the docket and the record of this case. 
SO ORDERED 
___________________________________ 
Hon. Royce C. Lamberth 
UNITED STATES DISTRICT JUDGE 
United States District Court for the 
District of Columbia 
Date:______________
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
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. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Paul A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530