NO. 03-5314 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
ELOUISE PEPION COBELL, et al., 
Plaintiffs-Appellees, 
V. 
GALE A. NORTON, SECRETARY OF THE INTERIOR, et al., 
Defendants-Appellants. 
ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
APPELLANTS' MOTION FOR STAY PENDING APPEAL 
PETER D. KEISLER 
Assistant Attorney General 
ROSCOE C. HOWARD, JR. 
United States Attorney 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
ALISA B. KLEIN 
(202) 514-5089 
Attorneys, Appellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinqton, D.C. 20530 NO. 03-5314 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
ELOUISE PEPION COBELL, et al., 
Plaintiffs-Appellees, 
V . 
GALE A . NORTON, SECRETARY OF THE INTERIOR, et al., 
Defendants-Appellants. 
ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
APPELLANTS' MOTION FOR STAY PENDING APPEAL 
PETER D. KEISLER 
Assistant Attorney General 
ROSCOE C. HOWARD, JR. 
United States Attorney 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
ALISA B. KLEIN 
(202) 514-5089 
Attorneys, Appellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinqton, D.C. 20530 IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs- Appellees, 
V. NO. 03-5314 
[Civil Action No. 96-1285 (D.D.C.)] GALE A. NORTON, 
Secretary of the Interior, et al., 
Defendants-Appellants. 
) 
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1 
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MOTION FOR STAY PENDING APPEAL 
Defendants-appellants the Secretary of the Interior, et al., respectfully ask this Court to stay 
the "Structural Injunction" entered by the district court on September 25, 2003, pending the 
disposition of this appeal. In issuing its injunction, the district court declared that it "will neither 
grant any stay of the structural injunction * * * nor entertain any motion seeking such a stay." 
Historical Accounting Opinion ("Op.") at 228. However, we are simultaneously filing a motion for 
a stay in district court in compliance with F.R.A.P. 8 and in light of legislation signed into law on 
November 10, 2003, discussed below. Because the injunction sets out a series of deadlines 
commencing on November 24, 2003, we are filing this motion now to facilitate the Court's 
consideration and will promptly inform the Court if the district court acts on our motion.' 
INTRODUCTION AND SUMMARY 
The Department of Interior ("Interior" or "DOI") currently holds approximately $41 5 million 
in trust for the benefit of individual Indians. These funds are maintained in about 260,000 separate 
accounts - the Individual Indian Money (YIM") accounts that are the subject of this litigation. This 
Court has twice issued decisions in this litigation. In Cobell v. Norton, 240 F.3d 108 1 (D.C. Cir. 
2001), the Court concluded that the American Indian Trust Fund Management Reform Act, Pub. L. 
'Pursuant to Local Rule 8, plaintiffs' counsel has been given advance notice, by telephone, 
of the filing of this motion. No. 103-412, 108 Stat. 4239 (1994) (the "1994 Act"), codified an enforceable duty to perform an 
accounting for the IIM accounts and affirmed a district court ruling remanding to the agency to 
perform the accounting. 240 F.3d at 1102, 1 1 10. In Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 
2003), the Court reversed a judgment of contempt that had been based in part on the district court's 
conclusion that the Secretary ofthe Interior had failed to initiate a historical accounting. Id. at 1150. 
The current Administration has made the performance of an accounting apriority. In January 
2003, Interior issued a plan to complete an accounting fully consistent with this Court's decision 
within five years at a cost of $335 million. 
On September 25,2003, the district court issued an 18-page "Structural Injunction" (along 
with two opinions totaling 351 pages) that rejects Interior's plan and asserts judicial control over 
virtually all aspects of trust fund management.* The court purported to model its ruling on structural 
injunctions in which federal courts have assumed control over state prisons, hospitals and other 
institutions. See Op. 35-60. The injunction imposes a broad variety of requirements with 
compliance dates beginning November 24,2003. See Order 4,7. The ultimate cost ofthe injunction 
is estimated to be at least six billion dollars. Declaration of Associate Deputy Secretary of the 
Interior James E. Cason ("Cason Decl.") (Exh. A) at 5 (attached). The injunction also provides for 
the appointment of a new "Judicial Monitor" and subordinate "agents" having "unlimited access" to 
DO1 facilities and information and "the power to conduct confidential interviews" with DO1 
Order 17. personnel. 
Congress, responding to the court's ruling, has now enacted legislation changing the law 
governing DOI's duty to perform a historical accounting. That provision, contained in the FY 2004 
Interior Appropriations statute, was signed into law on November 10, 2003. It provides: 
[Nlothing in the American Indian Trust Management Reform Act of 
1994, Public Law 103-412, or in any other statute, and no principle 
of common law, shall be construed or applied to require the 
Department of the Interior to commence or continue historical 
accounting activities with respect to the Individual Indian Money 
Trust until the earlier of the following shall have occurred: 
2The court's order and opinions are included in a separately bound appendix. 
-2- (a) Congress shall have amended the American Indian Trust 
Management Reform Act of 1994 to delineate the specific 
historical accounting obligations of the Department of the 
Interior with respect to the Individual Indian Money Trust; or 
(b) December 31,2004[.] 
H.R. 2691 (Exh. B.) (attached). 
A stay is plainly warranted in light of the new legislation. As Congress recognized in 
enacting the legislation, it would be "devastating to Indian country'' to divert resources in the manner 
required by the injunction. H.R. Conf. Rep. 108-330, at 117 (Oct. 28,2003) (Exh. B) (attached). 
Moreover, as discussed below, a stay would be warranted even absent the new legislation. 
The court's wholesale assumption of executive branch responsibilities reflects a fundamentally 
mistaken assessment of the proper role of the judiciary and the nature of this case, is without record 
basis, and disregards this Court's two prior decisions in this litigation. 
As discussed in the attached Declaration of Associate Deputy Secretary Cason, DO1 expects 
to proceed with significant steps related to the performance of an accounting pending the appeal and 
further action by Congress. It would be improper to require DO1 to reallocate resources in a manner 
squarely foreclosed by Congress that would result in no discernible benefit to account holders. 
Accordingly, we ask this Court for an immediate stay of the entire order pending appeal. 
Q 102(a), 25 U.S.C. 9 401 l(a). 
STATEMENT 
1. The Declaratory Judgment and the First Appeal. 
The 1994 Act provides that "[tlhe Secretary shall account for the daily and annual balance 
of all funds held in trust by the United States for the benefit of * * * an individual Indian which are 
deposited or invested pursuant to the Act of June 24, 1938 (25 U.S.C. 162a)." Pub. L. 103-412, 
Plaintiffs filed this class action in 1996 to require Interior to take actions with respect to 
individual Indian money ("IM'') accounts. The district court dismissed plaintiffs' common law trust 
claims, but allowed their suit to go forward because plaintiffs' "statutorily-based claims against the 
government can be brought under the MA." Cobell v. Babbitt, 91 F. Supp. 2d 1,29 (D.D.C. 1999). The court issued a declaratoryjudgment holding that Interior had an enforceable duty to provide an 
accounting for I M funds, including funds deposited prior to passage of the 1994 Act. Because the 
agency had not yet provided such an accounting, the court remanded the matter to allow DO1 the 
opportunity to come into compliance. The court also retained jurisdiction for five years, and required 
DO1 to file quarterly reports explaining the steps taken to rectify the breaches found. a. at 56. The 
declaratoryjudgment also purported to declare breaches of trust obligations with respect to a variety 
of other matters, including staffing and computer support. a. at 49-50, 58. 
This Court largely affirmed, concluding that agency action had been improperly delayed 
under governing Administrative Procedure Act ("APA") standards. Cobell v. Norton, 240 F.3d 
1081,1108 (D.C. Cir. 2001). The Court explained, however, that the only actionable breach ofduty 
was the failure to produce an accounting, and required the district court to amend its order to the 
extent that it purported to exercise jurisdiction over other related duties such as the management of 
computer systems. a. at 1 106. The Court stressed that the choice of how an accounting should be 
conducted was properly left to the agency, id. at 1104, and admonished the district court "to be 
mindful of the limits of its jurisdiction," id. at 1 1 10, explaining that its jurisdiction was confined to 
determining whether future steps taken by Interior were so defective that they would "necessarily 
delay rather than accelerate the ultimate provision of an adequate accounting," id. 
2. The Contempt Judgment and the Second Appeal. 
Within months of assuming office in January 2001, Secretary Norton created the Office of 
Historical Trust Accounting ("OHTA"), which she charged with developing a plan for historical 
accounting. In conjunction with OHTA's efforts, Interior engaged five public accounting firms, the 
largest commercial trust operator in the United States, two historian firms specializing in Indian 
issues, and firms to assist in statistical issues, trust legal matters and other pertinent areas. See DO1 
Accounting Plan at 2. As of November 1,2002, Interior had reconciled 14,235 judgment accounts 
with balances totaling over $40 million and had also made substantial progress in reconciling per 
capita accounts. Id. at I- l,I-2; see also Cason Decl. at 3 (describing further progress as of September 
30,2003). 
-4- Despite this evidence of progress, the district court paid little regard to the terms of this 
Court's ruling. It did not amend its order, as this Court had mandated, and with the aid of a Court 
Monitor and a Special Master, launched detailed inquiries into computer systems, information 
security, and a variety of other subjects. See Cobell v. Norton, 334 F.3d 1128,1134-35 (D.C. Cir. 
2003). In 2002, based on purported failures to initiate a historical accounting and claimed 
inaccuracies in the court-ordered progress reports, the court held the Secretary of the Interior and an 
Assistant Secretary in contempt, Cobell v. Norton, 226 F. Supp. 2d 1 (D.D.C. 2002), concluding that 
"Secretary Norton and Assistant Secretary McCaleb can now rightfully take their place * * * in the 
pantheon of unfit trustee-delegates." a. at 16 1. Based on the contempt trial, the court declared that 
it "will not simply remand the matter back to the agency again as it did in December of 1999," id. 
at 152, and advised the Secretary that she should resign if she believed that she could not properly 
discharge her statutory functions under the terms of the court's order, id. at 133. 
This Court reversed and vacated the contempt ruling, noting, inter alia, that the record 
demonstrated that "in her first six months in office Secretary Norton took significant steps toward 
completing an accounting," and that the court-appointed monitor had recognized that the Office of 
Historical Trust Accounting created by Secretary Norton had "'made more progress . . . in six months 
[July through December, 20011 than the past administration did in six years."' 334 F.3d at 1148. 
The Court explained that "[tlhese uncontested facts are inconsistent with a finding that Secretary 
Norton failed to" initiate a historical accounting. a. With respect to the remaining contempt 
charges, the Court described key aspects of the district court's reasoning as "mystifying," id. at 1 149, 
and "inconceivable," id. at 1 150. 
3. Interior's Plans and the Structuraf hiunction. 
Having determined in its contempt order that it would assume control over trust operations, 
and would not remand to the agency, the district court proceeded to review two plans submitted by 
Interior pursuant to the contempt ruling. The first was the Historical Accounting Plan for Individual 
Indian Money Accounts (Exh. C) (attached), addressing historical accounting. Pursuant to court 
order, DO1 also submitted a separate Fiduciary Obligations Compliance Plan, which concerned 
-5- matters beyond the subject of historical accounting, including improvements to be made to help 
ensure that future accountings would be accurate. Later, DO1 submitted to the court an additionaI 
Comprehensive Trust Management Plan (Exh. D) (attached), which had not been required by the 
court but was submitted for informational purposes only. The Comprehensive Trust Management 
Plan encompasses matters beyond the Fiduciary Obligations Compliance Plan, covering the full 
range of Interior's trust responsibilities, including natural resource and asset management. 
Following a 44-day trial, the district court declared that it would treat the factual findings 
made in its contempt ruling as having been established because, in the district court's view, they had 
not been set aside by this Court. See Op. 23-24. The district court explained that it was issuing a 
structural injunction, rather than remanding to the agency, because it did not trust the Secretary or 
her subordinates to carry out their official duties. See id. at 250-63. The structural injunction was 
accompanied by a "Historical Accounting" opinion and a "Fixing the System" opinion. These rulings 
radically transfonn the Interior Accounting Plan and Comprehensive Trust Management Plan and 
incorporate both, as altered, into the injunction. 
a. The Historical Accounting Ruling 
The district court's order rejects virtually every premise and parameter of the DO1 Accounting 
Plan. The DOT Plan would provide existing account holders (and holders of accounts opened since 
1994), with an accounting of all transactions in their accounts since 1938. The Plan reflects this 
Court's understanding of the 1994 Act's directive that Interior account for trust funds "which are 
deposited or invested pursuant to the Act of June 24,1938," Pub. L. 103-41 2,$ 102(a); see 240 F.3d 
at 1102. 
Under the DO1 Plan, Interior would produce, based on existing paper and electronic 
bookkeeping records and without the use of statistical methods, a statement of account for each open 
IIM account that describes all of the post-1938 transactions in each ac~ount.~ The Plan also 
3Under its Plan, DOT'S historical accounting period would close on December 3 1,2000, the 
date on which relevant Interior offices were converted to the Trust Funds Accounting System 
(continued.. .) 
-6- identified the methods that would be used to verify the transactions set forth in the statement of 
account. For the approximately 200,000 land-based IIM accounts, Interior would examine the 
DO1 Accounting Plan at 1,I-1. Interior relevant records for all transactions of $5,000 or more. 
would examine statistically valid samples of the transactions below $5,000. See id. at 1. Two 
statistically valid samples of about 80,000 transactions each would be selected from the Electronic 
Records Era (1985-2000). See id. A similar approach would be used to sample transactions from 
the Paper Records Era (pre-1985). See id. This sampling methodology would allow Interior to 
determine the accuracy rate of the accounting with a 99% degree of confidence. See id. The use of 
sampling reflects the fact that the vast majority of transactions involved relatively small sums of 
money. See Cason Decl. at 2, 4. It would also be consistent with this Court's declaration that 
decisions about "how the accounting would be conducted, and whether certain accounting methods, 
such as statistical sampling or something else, would be appropriate," are "properly left in the hands 
of administrative agencies." 240 F.3d at 1104. 
By contrast, the courtk injunction requires not only the production of a statement of account, 
but also an individualized verification of every transaction taking place from the time of the passage 
of the General Allotment Act of 1887,24 Stat. 388. Op. 165,207-208. This includes a verification 
of changes in interests not only in funds held in trust for each individual Indian, which is the subject 
of this lawsuit, but of all interests in land allotments. Op. 169-71 . The accounting and verification 
must be performed for all accounts, even those that have long since been closed, although the 
account holder may have died decades ago. Op. 159-63. Interior may not rely on probate 
determinations which, the court ruled, have no conclusive effect in determining what interests should 
have been probated. Op. 165-68. Interior must also account for funds never held in trust at all, but 
rather received by an allotment holder in a direct transaction with a third party. Op. 172-76. 
b. The "Fixing the System" Ruling 
3(...continued) 
(TFAS). See DO1 Accounting Plan at 11-4. "Account information recorded since December 3 1, 
2000, will be considered current accounting activity." a. 
-7- As noted, in addition to its Accounting Plan, DO1 also submitted at the district court's 
direction a Fiduciary Obligations Compliance Plan, later supplemented by a Comprehensive Trust 
Management Plan. 
The Comprehensive Trust Management Plan encompasses virtually every aspect of trust 
management, outlining in general terms the organizational changes proposed by Interior to improve 
its management and supervision of Indian trust funds and assets. It proposes the improvement of (1) 
accounting for trust funds, see DO1 Comprehensive Plan at 3-7; (2) investing and disbursing funds, 
-- see id.; ( 3 ) maintaining accurate land ownership records, see id. at 3-6; and (4) managing Indian 
lands and resources, see id. "The change effort will be a DOI-wide transformation encompassing 
most aspects of the trust." @. at 5-10. 
In its "Fixing the System" opinion, the district court declared that the "scope and nature" of 
Interior's duties to IIM beneficiaries were "coextensive" with the duties of a common law trustee. 
Fixing the System Opinion ("FTS Op.") 45; see also a. at 45-53 (outlining these duties). Although 
the duties described in the Comprehensive Trust Management Plan are without anchor in the duty 
to be enforced in this case, the court adopted the pian, as modified, as an injunction. The 
modifications include: (1) Interior must file a "statement" detailing the manner in which it will 
comply with each of the common law trust duties the court has set out, a. at 56. (2) In managing 
tribal resources, Interior must abide by tribal law, and must prepare a list of all applicable tribal laws 
and a statement of how they would affect trust administration, ;d. at 60. ( 3 ) Interior must submit a 
"detailed plan" for the integration of the title, leasing, and accounting systems, id. at 68. (4) Interior 
must submit a statement "identify[ing] the steps" it would take during its historical accounting to 
distinguish IIM trust principal from income, 2. at 68-69. 
REASONS WHY THE STAY SHOULD BE GRANTED 
THE GOVERNMENT'S APPEAL WILL SUCCEED ON THE MERITS. 1. 
A. Congress Has Altered The Governing Law Underlying The Structural Injunction. 
As this Court made clear in its initial opinion in this case, the only actionable duty at issue 
in this litigation is the duty to perform an accounting. The Court set out its understanding ofthe duty 
-8- codified by Congress, and DO1 has consistently sought to comply with this Court's opinion. 
Congress has now altered the governing law, providing that, pending further congressional 
action (or decision not to act), neither the 1994 Act nor any principles of common law incorporated 
into federal law "require the Department of the Interior to commence or continue historical 
accounting activities with respect to the Individual Indian Money Trust * * *.'I H.R. 2691. 
As the Conference Report accompanying this legislation explained, Congress has previously 
"stated in no uncertain terms that it would not appropriate billions of dollars for a historical 
accounting[.]" H.R. Conf. Rep. 108-330, at 117. Observing that the court-ordered accounting was 
estimated to cost between six and twelve billion dollars, the committee explained that the ruling 
"would require that vast amounts of funds be diverted away from other high-priority programs, 
including Indian programs." Id. The committee stressed that this "would be devastating to Indian 
country and to the other programs in the Tnterior bill." a. As the committee explained, the 
expenditure of billions of dollars on an accounting "would not provide a single dollar to the 
plaintiffs[.]" Jli. 
The committee added that it would be "unwise to expend hundreds of millions of dollars on 
further accounting while this case is under appeal," id., and rejected ''the notion that in passing the 
American Indian Trust Management Reform Act of 1994 Congress had any intention of ordering an 
accounting on the scale of that which has now been ordered" by the district court, 3. at 1 17-1 8. The 
committee stressed that "[sluch an expansive and expensive undertaking would certainly have been 
judged to be a poor use of Federal and trust resources." Id. at 118. 
Accordingly, as discussed above, Congress altered the governing law to provide that neither 
the 1994 Act nor any common law principles incorporated into federal law require DOT to commence 
or continue historical accounting activities with respect to the IIM accounts. At the same time, 
Congress "limited the funds available to the Department for historical accounting to those activities 
that need to be accomplished and can be accomplished in the short-term." H.R. Conf. Rep. 108-330, 
at 118- Y- see H.R. 2691 (amounts k o t to exceed $45,000,000 shall be available for records collection 
and indexing, imaging and coding, accounting for per capita and judgment accounts, accounting for 
-9- tribal accounts, reviewing and distributing funds from special deposit accounts, and program 
management of the Office of Historical Trust Accounting, including litigation support"). 
As this Court's initial decision makes clear, the only actionable duty at issue in this suit is the 
duty to perform an accounting. The new legislation removes any arguable legal basis for the district 
court's injunction insofar as the injunction purports to enforce that duty. And to the extent that the 
injunction purports to enforce other duties that are not properly at issue in this suit at all, its ruling 
is plainly without basis. 
B. The District Court Had No Authority To Issue A Structural Injunction. 
Even ifcongress had not acted, the district court's decision would be fundamentally unsound: 
The "Structural Injunction" effects an explicit judicial takeover of Interior's IIM trust program. The 
order contravenes established limits on judicial review of executive branch action and would 
constitute clear error even if this suit concerned the full breadth of trust management issues and even 
if the record reflected across-the-board failures of management. As this Court recognized in its 
initial opinion, a party '''cannot seek wholesale improvement of [a] program by court decree,"' but 
must seek this kind of relief "'in the offices of the Department [of the Interior] or the halls of 
Congress, where programmatic improvements are normally made."' 240 F.3d at 1095 (quoting Luian 
v. National Wildlife Federation, 497 U.S. 871, 891 (1990)). 
As this Court also made clear, this suit is not (and could not be) a suit to enforce performance 
of all trust-related matters. Thus, the Court required the district court to amend its opinion to reflect 
the fact that the "actual legal breach is the failure to provide an accounting, not [the government's] 
failure to take the discrete individual steps that would facilitate an accounting." Id. at 1 106. The 
Court further instructed the district court to be mindful of the limits of its jurisdiction, which would 
be confined to determining "whether in preparing to do an accounting the Department takes steps 
so defective that they would necessarily delay rather than accelerate the ultimate provision of an 
adequate accounting * * * . I r - Id. at 1 1 10. The Court's ruling left no room for "structural injunctions," 
much less overarching orders to "fix the system." 
If the district court had, in fact, properly determined that some aspects of the Interior 
-10- Accounting Plan were so defective as to cause delay, it could identify those errors. At that point, 
however, the court's jurisdiction would end: The "guiding principle * * * is that the fbction of [a] 
reviewing court ends when an error of law is laid bare." Federal Power Commission v. Idaho Power 
2, Co 344 U.S. 17,20 (1952). 
The rationale for this rule, which is undergirded by principles of separation of powers, is 
particularly clear in this case. How to "reform the trust" raises sweeping questions for both Congress 
and Interior, questions that Congress is again addressing. It is for the political branches to determine 
what changes in law, asset allocation, or management techniques will best serve the interests of the 
beneficiaries and will make best use of limited resources (which, unlike in a private trust, are not 
provided by the trust itselfbut by the public fisc.) A district court cannot, in effect, appropriate funds 
and direct their expenditure. 
The district court's decision to enforce its injunction by means of a new "Judicial Monitor" 
and a team of "agents" underscores the nature of its takeover and constitutes independent error. A 
court has no authority to give its "agents" "unlimited access" to government facilities and 
information and "the power to conduct confidential interviews" with government personnel. Order 
17. The creation of a new Monitor and agents pointedly disregards this Court's ruling that such a 
role "is unknown to our adversarial legal system." 334 F.3d at 1142. 
Finally, the record provides no basis for concluding that Interior has abdicated its trust 
responsibilities. Since this Court's initial remand order, there have been two evidentiary 
proceedings- the contempt trial and the trial preceding issuance of the Structural Injunction. 
The evidence adduced at the 44-day trial conducted in the summer of 2003 confirms that 
Interior has continued to take significant steps in furtherance of both historical accounting and 
reform of trust administration. The district court cited no evidence demonstrating that the agency 
is defaulting on its responsibilities. 
The district court's decision to wrest control of "trust reform" fiom Interior is, instead, based 
on the contempt trial, which was held in late 2001 and early 2002, following which the court 
declared the Secretary of the Interior an "unfit" trustee-delegee. Although its contempt ruling was 
-1 1- vacated on appeal, the district court announced that it would treat the factual findings made in its 
contempt ruling as having been established because, in the district court's view, they had not been 
set aside by this Court. See Op. 23-24. 
The district court's reasoning once more disregards this Court's rulings. This Court vacated 
the district court's rulings on all five specifications of contempt. See 334 F.3d at 1147-50. In so 
ruling, it made absolutely clear that the record provided no basis for calling into question the good 
faith or reasonable efforts of the present Secretary. To the contrary, this Court declared that 
the district court's findings clearly indicate that in her first six months in office 
Secretary Norton took significant steps toward completing an accounting. By June 
2001 the Secretary had contracted with EDS, a national consulting firm, to evaluate 
the status of the TAAMS project, and by November 2001 the Department had 
proposed a reorganization plan aimed at eliminating the problems EDS had 
identified. In July 2001 Secretary Norton created the Office of Historical Trust 
Accounting, which has since made significant progress toward completing an 
accounting. Hence, the Court Monitor stated in his Fifth Report, "[tlhere is no doubt 
the OHTA has made more progress . . . in six months [July through December, 200 11 
than the past administration did in six years." 
- Id. at 1148 (citations omitted). In examining the district court's contempt ruling with respect to 
allegedly misleading statements regarding Interior's computer system, this Court found the district 
court's reasoning "mystifying," id. at 1149, and described the contempt ruling on computer security 
as "inconceivable," id. at 1 150. The earlier contempt trial thus could provide no possible basis for 
the district court's decision to assume responsibility for trust reform in general or for the accounting 
in particular. 
C. The District Court's Understanding Of DOI's Accounting 
Responsibilities Has At No Time Had A Basis In Law. 
As the history of both the 1994 Act and the most recent legislation demonstrate, the district 
court's redefinition of an ''accounting" comports neither with congressional intent nor common sense. 
As noted, the 1994 Act provides that "[tlhe Secretary shall account for the daily and annual 
balance of all funds held in trust by the United States for the benefit of * * * an individual Indian 
which are deposited or invested pursuant to the Act of June 24, 1938 (25 U.S.C. 162a)." Pub. L. 
103-412, $ 102(a). The DO1 Accounting Plan, built on years ofconcerted effort, fullycomplied with 
this Court's understanding of that provision. The DO1 Accounting Plan would provide a statement 
-12- of all of the post-1938 transactions in each TIM account that was open in 1994 or thereafter, and for 
Accounting Plan at 11-2, 111-1. By examining every the verification of those transactions. 
transaction of $5,000 and over, and by verifying the remaining transactions in the land-based 
accounts by use of statistical sampling, Interior's plan contemplated 99% confidence in the stated 
accuracy rate of the accounting statements. a. at 1. Interior estimates that its plan would take 5 
years and cost $335 million. Id. 
Before the enactment of the 1994 Act, Congress noted that "it might cost as much as $281 
million to $390 million to audit the IIM accounts at all 93 [Bureau of Indian Affairs] offices." H.R. 
Rep. No. 102-499, at 26 (Apr. 22, 1992). It stressed that, "[o]bviously, it makes little sense to spend 
so much when there was only $440 million deposited in the IIM trust fund for account holders as of 
September 30, 1991 ." Id. 
Even the DO1 Accounting Plan raised the fiscal concern identified by Congress. The district 
court's ruling dismissed Congress's concern out of hand. The court did not find that Interior's plan 
would fail to deliver the results contemplated in the DO1 Accounting Plan or that the techniques on 
which the plan would rely are unreliable. Instead, the Court redefined the accounting in ways that 
multiply its expense many times over while providing little if any discernible benefit to account 
holders. 
The following is a brief summary of some of the most significant requirements imposed by 
the district court. 
1. Parameters: Providing An Accounting for All Closed Accounts 
And for All Transactions Dating Back to 1887. 
The DO1 Accounting Plan provided for an accounting to current account holders (and holders 
of accounts open in 1994) for funds deposited or invested pursuant to the 1938 Act. The structural 
injunction requires that Interior provide an accounting for all IIM accounts that have ever been in 
existence as far back as 1887, including those that have been closed for decades. See Op. 159-63, 
165. The court's belief that its ruling was compelled by the 1994 Act is without basis. Congress had 
no need to specify that it wished to provide an accounting to current account holders and not to 
-13- account holders long since deceased. Indeed, the district court's reading cannot be squared with the 
statute's provision that Interior account for "the daily and annual balance of all hnds held in trust." 
Nor is it evident how any tangible benefit could be derived from the court's mandatory revisiting of 
closed accounts. 
The requirement that Interior account for transactions back to 1887 is similarly inexplicable. 
The 1994 Act provided for an accounting of funds "deposited or invested pursuant to the Act of June 
24, 1938 (25 U.S.C. 162a)." Whatever the scope of Interior's accounting responsibility, no reading 
of the statute could plausibly compel an accounting of transactions that pre-date the 1938 statute. 
2. Lands and Probate. 
The 1994 Act addressed an accounting for hnds deposited or invested pursuant to the 1938 
Act. The Structural Injunction requires a description ofall land assets for eachpredecessor in interest 
of every current account holder. The court's order conflates land trust obligations under the General 
Allotment Act of 1887 with the accounting responsibilities at issue in this suit. 
About 48% of the IIM trust money is held in the roughly 200,000 land-based IIM accounts, 
which contain funds derived from the roughly 10 million acres of land that the United States holds 
in trust for individual Indians. See DO1 Accounting Plan at 11-1, 111-1. DO1 manages revenue- 
producing activities on those lands, including oil and gas leases, fanning and grazing, and timber 
harvesting. See id. at 11-1. While approximately 10 million acres are currently held in trust, Interior 
estimates that the figure at the time of the 1887 Allotment Act and in the period thereafter was two 
to four times as large. See Cason Decl. at 8. 
By requiring Interior to explore the land holdings of all predecessors in interest of IIR.I 
account holders, the court has effectively required Interior to examine the holdings of related land 
interests of persons with no IIM accounts and to describe interests in land that has long ceased to be 
held in trust by the government. Since Interior must reconstruct every IIM account since 1887 and 
every land interest since 1 887, and establish the relationships between predecessors and successors 
in interest to these assets since 1887, the injunction apparently requires Interior to revisit the 
substance of nearly every probate decision since 1887. Indeed, the district court's order specifically 
-14- instructs that probate decisions cannot be accorded conclusive effect with respect to the description 
of the estate at the time of probate and the amounts that should have been distributed. Op. 165-68. 
Moreover, the benefit to be derived from this expenditure is altogether unclear. Through 
heirship and marriage, the ownership interest in a single parcel of land is frequently split among 
many beneficiaries as it passes from generation to generation, so that a present beneficiary's 
ownership interest in a tract of land may be infinitesimally small. In such cases, compliance with 
the court's requirement to account for a particular land holding may cost more than the underlying 
Cason Decl. at 8-9. property interest is worth. 
3. Accounting For Funds Never Held In IIM Accounts. 
Not all revenues generated by Indian trust lands are collected and managed by Interior. See 
DO1 Accounting Plan at 11-4. Some monies are paid directly to the Indian owner of the land by a 
third-party lessee. See id. The Structural injunction requires Interior to provide an accounting for 
these direct payments from third parties, even though they were never held by the government at all, 
much less placed into an IIM account. Op. 172-76. 
4. Statistical Sampling. 
In its initial decision, this Court noted that the district court had properly"1eft open the choice 
of how the accounting would be conducted, and whether certain accounting methods, such as 
statistical sampling or something else, would be appropriate," explaining that these decisions that 
are "properly left in the hands of administrative agencies." 240 F.3d at 1104. As Interior's 
accounting plan explains, the plan would produce, based on Interior's paper and electronic 
bookkeeping records, a ledger for each open IIM account that describes all of the post-1938 
transactions in each account. Under the DO1 Plan, sampling would not be used to generate the 
account statements. Sampling would be used only to verify the accuracy of the statement, consistent 
with accepted auditing practice. To verify the accuracy ofthe account statements for the judgment 
and per capita accounts, the DO1 Plan called for the examination of the relevant paper records (such 
as the underlying lease) for each transaction. The Plan provided for the same method of verification 
the for transactions over $5,000 in the land-based IIM accounts. For transactions below i.e., $5,000, 
-15- category of transactions where sampling would be invoked, the Plan called for examination of 
statistically valid samples using a methodology that would provide 99% confidence in the stated 
accuracy rate of these transactions. DO1 Accounting Plan at 1. 
The Structural Injunction, by contrast, requires the government to verify each transaction 
individually. (Although the court suggested that Interior could use sampling to perform an audit 
-function, the requirement that each transaction be individually verified would make any additional 
auditing superfluous.) This requirement dramatically expands the number of transactions to be 
individually examined. The vast majority of these transactions are for relatively small amounts; 
Thus, in many instances, the cost of verifying the transaction is likely to be greater than the entire 
amount of the transaction itself. See Cason Decl. at 4. In conjunction with the expanded scope of 
the accounting required (m, examining transactions prior to 1938), the costs imposed by the court's 
requirement of individual transaction-by-transaction verification are estimated at approximately $6 
billion. See id. at 7. 
BALANCE OF HARMS AND THE PUBLIC INTEREST. 
The district court's assessment of the costs and benefits of its Structural Injunction is flatly 
The DO1 Plan would cost approximately $335 million. The current, total balance of the IIM 
-16- 
11. 
at odds with that of Congress, which has now altered the law regarding Interior's accounting duties 
and which is responsible for determining how public monies may be spent. 
accounts is about $41 5 million. The estimated cost of the Structural Injunction is at least $6 billion. 
See Cason Decl. at 5 . As the Conference Report accompanying the new legislation emphasized, 
Congress had previously "stated in no uncertain terms that it would not appropriate billions of dollars 
for a historical accounting[.]" H.R. Conf. Rep. 108-330, at 117. Congress observed that the 
reallocation of resources required by the Structural Injunction "would be devastating to Indian 
country and to the other programs in the Interior bill." a. The district court sought to justify its 
injunction on the basis of the purported dependence of Indian beneficiaries on trust disbursements 
(see Op. 102), but as the committee explained, the expenditure ofbillions ofdollars on an accounting 
"would not provide a single dollar to the plaintiffs, and would without question displace funds available for education, health care and other services." H.R. Conf. Rep. 108-330, at 117. 
As the recent legislation reflects, Congress is revisiting the issues related to an accounting 
of the IIM accounts. For now, Congress has "limited the funds available to the Department for 
historical accounting to those activities that need to be accomplished and can be accomplished in the 
short-term." H.R. Conf. Rep. 108-330, at 11 8. 
shall be available for records collection and indexing, imaging and coding, accounting for per capita 
andjudgment accounts, accounting for tribal accounts, reviewing and distributing fimds fiom special 
deposit accounts, and program management of the Office of Historical Trust Accounting, including 
litigation support"). 
The structural injunction contains a variety of deadlines commencing November 24,2003, 
60 days from the date of the court's injunction. 
Within 60 davs of the court's ruling - November 24,2003: 
a 
a 
Within 90 davs of the court's ruling - - December 24,2003: 
a 
a 
a 
a 
a 
a 
H.R. 2691 (amounts "not to exceed $45,000,000 
File a detailed plan for identifying trust-related records likely to be possessed by 
third-parties and for issuing subpoenas to those entities. Order 4. 
the DO1 Accounting Plan. a. at 7-8. 
File a detailed plan describing, among other things, the quality control measures of 
File a timetable for completing the collection and indexing ofrecords related to trust 
accounts, including a complete explanation of indexing methods. Id. at 4. 
File a detailed plan describing each of five system tests described in the DO1 
Accounting Plan. Id. at 7. 
File a detailed plan including specific measures Interior will take to bring itself into 
identified by the district court in its opinion. a. at 9. 
compliance with all of the fiduciary duties imposed upon trustees at common law, as 
File a detailed plan ofmeasures to correct problems with leasing, title and accounting 
systems identified in a brief filed by an amicus curiae. d. at 10. 
Complete 12 specified directives including identification of trust-related documents, 
implementation of training programs for records custodians, policies for retrieval of 
trust records, and a request for legislation from Congress to satisfy imbalances o f 
trust fund balances within the United States Treasury. Id. at 12-13. 
File a detailed timetable for completion of the historical accounting, including 
specified dates for important milestones, including completion of the collection 
process, accounting process, and reporting process. Id. at 15 
-17- File a timetable for completion ofthe entire indexing process of trust-related records 
to be undertaken as part of the historical accounting. Id. 
Bv The End of the Year - December 31,2003: 
Resolve validation of documentation for automatic disbursement authorizations and 
establish records retention schedules for non-electronic trust records. Id. at 13-14. 
Within 120 davs of the court's rulinp - January 23,2004: 
in conjunction with an accounting. a. at 8. 
File a plan that analyzes, among other things, use of "industry production data bases" 
File a list of tribal laws and ordinances that Interior deems applicable to trust 
administration together with a full statement of the way that Interior believes that 
such provisions may affect the administration of the trust. Id. at 10. 
File adetailed plan to identify specific measures to distinguish principal from income 
as part of historical accounting. u. at 10- 1 1. 
-1 8- 
Bv March 31,2004: 
Complete specified directives including indexing all identified documents under 
control of the Office of Trust Records necessary to perform an accurate accounting, 
establishing a Privacy Act Program, and establishing revised records retention 
schedules for electronic trust records. Id. at 14. 
These requirements force Interior in a direction opposite from that commanded by Congress. 
Congress has appropriated only $45 million for all accounting-related activities while it considers 
the appropriate parameters of an accounting, explaining that it has "limited the funds available to the 
Department for historical accounting to those activities that need to be accomplished and can be 
accomplished in the short-term." H.R. Conf. Rep. 108-330, at 118. The injunction requires the 
submission or implementation of plans based on legal premises that were incorrect before the most 
recent legislation, and that are flatly at odds with the new statute. 
Moreover, as the Declaration of Associate Deputy Secretary Cason explains, even to comply 
with the more distant deadlines of the Structural Injunction would require DOT immediately to 
reallocate resources to perform tasks that would not have been required under the DOT Plan and are 
clearly outside the contemplation of Congress. For example, the district court's injunction requires 
verification of over 30 million transactions that pre-date the electronic records era. Any attempt to 
perform this task within the district court's time frame would require immediate and substantial expenditures on equipment and personnel that would ultimately yield little if anything of value to 
the public or account holders. See Cason Decl. at 12. 
The performance of an accounting under the DO1 Plan would not be advanced by 
performance of the tasks described in the injunction. As discussed above, the injunction requires 
a re-creation of all transactions related to funds and land from 1887 onwards as a condition for 
providing an accounting to current account holders. The Interior Plan, in contrast, would generally 
work backwards fi-om the present, a method that would require different tasks in a different order 
and would allow completion of accounting for land-based accounts far in advance of the very 
different accounting contemplated by the district court. Even the court's most immediate deadline, 
dealing with collection of third-party records, reflects this fundamental divergence. Under the DO1 
Plan, Interior would first look to the millions of documents in its possession and then seek to fill any 
gaps by seeking information from third parties. Under the district court's order, however, Interior 
would be forced to focus immediately on a detailed plan to obtain outside records including the use 
of potentially large numbers of subpoenas (see Order 4). Such record-gathering would be largely 
unnecessary and extremely burdensome to third parties as well as Interior, costing the government 
alone an estimated sum in the hundreds of millions of dollars. See Cason Decl. at 10, 12. 
The requirement that Interior file a detailed account of the tribal laws that it believes 
applicable is also illustrative. DO1 consults with tribes regarding trust management, but has never 
subordinated the federal government's responsibilities to tribal jurisdiction. Indeed, the complaint 
makes no allegation that the United States is acting in disregard of applicable tribal laws or 
ordinances. Nevertheless, the injunction would require DO1 to devote immediate attention to the 
issue of how to respond to the order with respect to the more than 500 separate tribal jurisdictions 
in the United States. Cason Decl. at 1 1. 
Finally, absent a stay, Interior may be subject to the appointment of a new Court Monitor and 
other agents with "unlimited access'' to government facilities and extraordinary and entirely improper 
powers "to conduct confidential interviews" with government personnel. Order 17. 
A stay will allow Interior to proceed with a number of significant steps in the preparation of 
-19- statements of account for IIM account holders - steps that are intended to make concrete progress 
and that are consistent with Congress's recent enactment. These steps include continuing the 
ongoing reconciliation of judgment accounts; continuing the ongoing reconciliation of per capita 
accounts, continuing the ongoing review and distribution of funds from special deposit accounts; 
continuing with ongoing efforts regarding tribal accounting; and continuing with ongoing records 
collection, indexing, imaging and coding activities. See Cason Decl. at 13. 
In sum, the structural injunction marked an extraordinary usurpation of executive branch 
responsibility, without foundation in the record, based on a fundamental misunderstanding of the 
1994 Act and this Court's decisions. The new legislation makes entirely clear that the duties 
reflected in 1994 Act cannot be the basis for the historical accounting ordered by the district court, 
and makes equally clear that Congress regards the expenditure of funds required by the injunction 
as inimical to the interests of account holders as well as the public generally. An immediate stay of 
the structural injunction is appropriate. 
NOVEMBER 2003 
CONCLUSION 
The district court's September 25,2003 injunction should be stayed pending appeaI. 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
ROSCOE C. HOWARD, JR. 
United States Attorney 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
ALISA B. KLEIN 
(202) 5 14-5089 
Attorneys, Appellate Staff 
Civil Division. Room 9108 
Department of Justice 
601 D Street. N.W. 
Washington, D.C. 20530 
-20- A D D E N D U M 
(Certificate as to parties and amici) CERTIFICATE AS TO PARTES AND AMICI 
Pursuant to Circuit Rules 8 and 28(a)(l)(A), undersigned counsel certifies that the named 
plaintiffs in this action are Elouise Pepion Cobell, Earl Old Person, Mildred Cleghorn, Thomas 
Maulson, and James Louis LaRose. The district court has certified a plaintiff class consisting of 
present and former beneficiaries of Individual Indian Money ("IIM") accounts, excluding those who 
had filed their own actions prior to the filing of the complaint in this case. 
Defendants are Gale A. Norton, Secretary ofthe Interior, Aurene M. Martin, Acting Assistant 
Secretary of the Interior for Indian Affairs, and John W. Snow, the Secretary of the Treasury. 
THOMAS M. BONDY 4 manner specified: 
Hand Delivery: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
G. William Austin, 111, Esq. 
607 - 14th Street NW, Ste. 900 
Washington, D.C. 20005 
-" 
CERTIFICATE OF SERVICE 
I hereby certify that on this 10th day of November, 2003, I am causing the foregoing 
APPELLANTS'MOTION FOR STAY PENDING APPEAL to be served on the following in the 
Honorable Royce C. Lamberth 
United States District Court 
for the District of Columbia 
Third & Constitution Avenue, N.W. 
Washington, D.C. 20001 
Dennis M. Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, N.W., 9th Floor 
Washington, D.C. 20005 
By Prepaid First Class U.S. Mail: 
Elliott Levitas, Esq 
1100 Peachtree Street, Ste. 2800 
Atlanta, GA 30309-4530 
Washington, D.C. 20005 INDEX OF EXHIBITS 
Tab 
Declaration of Associate Deputy Secretary James E. Cason (Nov. 10, 2003) . . . . . . . . . . . . . . . A 
Excerpts of H. R. 2691 and Conference Report 108-330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B 
Department of Interior’s Historical Accounting Plan (Jan. 6,2003) ...................... C 
Department of Interior’s Comprehensive Trust Management Plan (Mar. 28,2003) . . . . . . . . . . D