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    )
                 Interior, et al.,                               )
                                                                  )
                                  Defendants.        )
                                                                 )
                                       INTERIOR DEFENDANTS' MOTION
                                          TO STRIKE PLAINTIFFS' UNTIMELY FILINGS
                          The Secretary of the Interior and the Assistant Secretary-Indian Affairs (the "Interior
                 Defendants") hereby move to strike four of Plaintiffs' filings as untimely, specifically:
                 (1)     Plaintiffs' January 24, 2003 Opposition to Interior Defendants' Motion for
                          Reconsideration of Order Prohibiting Communications with Class Members' ("January
                          24, 2003 Opposition");
                 (2)     Plaintiffs' January 28, 2003 Reply In Further Support of Motion To Compel Testimony
                          Of Acting Special Trustee Donna Erwin Who Was Directed Not to Answer Certain
                          Questions on the Basis of Attorney-Client Privilege and Harassment and Motion for
                          Sanctions ("January 28, 2003 Reply");
                 (3)     Plaintiffs' January 29, 2003 Reply in Support of their Consolidated Motion to Remove
                          Earl Old Person as a Class Representative and Motion of Class Counsel to Withdraw As

                            Defendants' are not moving to strike the portion of Plaintiffs' filing denominated as
                 Motion for Order Directing Defendants to Rescind Notice Sent to 1200 Trust Beneficiaries.

                             Counsel for Earl Old Person in Any Capacity Other Than as Class Counsel for a Member
                          of the Certified Class ("January 29, 2003 Reply No. 1"); and
                 (4)     Plaintiffs' January 29, 2003 Reply in Support of Their Consolidated Motion to Modify or
                          in the Alternative Stay the Production Order of December 23, 2002 as It Pertains to Earl
                          Old Person and Motion for Protective Order to Prevent the Deposition of Mr. Old Person
                          ("January 29, 2003 Reply No. 2").
                 Plaintiffs failed to file and serve any of the foregoing pleadings within the time prescribed by the
                 rules and did not seek leave for an enlargement of time. In two recent orders in this case, the
                 Court struck from the record out-of-time filings for which the late-filing party did not move for
                 leave to make an untimely filing. Order (Jan. 17, 2003, Dkt. No. 1738) (granting Plaintiffs'
                 motion to strike Defendants' statement regarding Plaintiffs' comment on Court Monitor's Seventh
                 Report); Order (Jan. 17, 2003, Dkt. No. 1744) (granting Defendants' motion to strike Plaintiffs'
                comment on Report and Recommendation of Special Master-Monitor). These four late filings by
                Plaintiffs should likewise be ordered stricken from the record as untimely filed.
                         As required by LCvR 7.1 (m), government counsel conferred by telephone with Keith
                Harper, counsel for Plaintiffs, on January 30, 2003. Mr. Harper stated that Plaintiffs intended to
                oppose this motion.

                         A.      Plaintiffs' Untimely Janu..a._ 24, 2003 Opposition to Motion for Reconsideration
                         Local C/vii Rule 7.1 (b) provides that a memorandum in opposition to a motion must be
                filed "[w]ithin 11 days of the date of service" and that "[i]f such a memorandum is not filed
                within the prescribed time, the court may treat the motion as conceded." LCvR 7.1 (b). Three

                                                                        2

                   days are added for mail or facsimile service, which includes weekends and holidays. Fed. R. Civ.
                 P. 6(e); CNPq-Conselho Nacional de D_e..senvolvimento Cientifico e Technologico v. Inter-Trade_
                 lnc_.__., 50 F.3d 56, 58 (D.C. Cir. 1995) (additional three calendar days for mail sen'ice are added at
                 the end and include weekends and holidays). Interior Defendants filed and served (by facsimile)
                 their Motion For Reconsideration of the Order Prohibiting Communications with Class Members
                 on January 8, 2003. Plaintiffs' Opposition was due 14 days later on January 22, 2003 (eleven
                 days plus three additional calendar days for mailing, including weekends and holidays).
                 Plaintiffs did not file their opposition until January 24, 2003, 16 days later, thus exceeding the
                 filing deadline. Plaintiffs did not move for an enlargement of time and did not seek leave to file
                 their opposition out of time. They have, therefore, waived their opportunity to oppose Interior                   -_
                 Defendants' motion, and the Court should treat the motion as conceded.

                          B.      Plaintiffs' Untimely January 28. 2003 Reply Sup._orting.....M.. otion to Compel
                          Interior Defendants filed and served (by facsimile) their Opposition to Plaintiffs' Motion
                 to Compel the Testimony of Donna Erwin and for Sanctions on January 15, 2003. Plainti frs'
                 reply was due on January 27, 2003 (five days excluding weekends and holidays, plus an
                 additional three calendar days for service by facsimile, including weekends and holidays). LCvR
                 7.1(d); Fed. R. Civ. P. 6(a). Plaintiffs filed and served their reply on January 28, 2003, thus
                 exceeding their filing deadline. Plaintiffs did not move for an enlargement of time and did not
                seek leave to file their reply out of time. They have, therefore, waived their opportunity to reply
                to Interior Defendants' opposition.

                            C.      Plaintiffs' Untimely Januar), 29, 2003 Rep._!ics inSupport of Ear! Old Person
                                  Motions
                          On January 16, 2003, Interior Defendants filed and served (by facsimile)their (I)
                 Opposition to Motion of Elouise Cobell ct al. to Remove Earl Old Person as a Named Class
                 Representative, and (2) Opposition to Motion of Class Counsel to Withdraw from the
                 Representation of Earl Old Person in Any Capacity Other than as Class Counsel. On that day,
                 Interior Defendants also filed and served (by facsimile) their Opposition to Plaintiffs' Motion to
                 Modify or Stay the December 23, 2002 Production Order as It Pertains to Earl Old Person and
                 Motion for a Protective Order to Prevent the Deposition of Old Earl Person. Both of Plaintiffs'
                 replies (January 29, 2003 Reply No. 1 and January 29, 2003 Reply No. 2) were due on Monday,
                 January 27, 2003 (five days excluding weekends and holidays, plus an additional three calendar
                 days for service by facsimile, including weekends and holidays). LCvR 7. i (d); Fed. R. Civ. P.
                 6(a). Plaintiffs filed and served both their replies on January 29, 2003, thus exceeding their filing
                deadline in both instances. Plaintiffs did not move for an enlargement of time and did not seek
                leave to file their reply out of time. They have, therefore, waived their opportunity to submit
                replies to Interior Defendants' oppositions.

                                                               CONCLUSION
                         For the foregoing reasons, this Court should issue the attached order2 striking January 24,
                2003 Opposition, Plaintiffs' January 28, 2003 Reply, Plaintiffs' January 29, 2003 Reply No. I and

                         2 Interior Defendants reserve the right to move for leave to file surreplies if the late-filed
                replies are not stricken.
                                                                        4

                   Plaintiffs' January 29, 2003 Reply No. 2.
                 January 30, 2003                        Respectfully submitted,
                                                             ROBERT D. McCALLUM, JR.
                                                             Assistant Attorney General
                                                             STUART E. SCHiFFER
                                                             Deputy Assistant Attorney General
                                                             J. CHRISTOPHER KOHN

                                                            D_yRA P. SPOONER
                                                                     ar No. 261495
                                                                      Director
                                                             JOHN T. STEMPLEWICZ
                                                             Senior Trial Counsel
                                                             JOHN R. KRESSE
                                                             Trial Attomey
                                                             D.C. Bar No. 430094
                                                             Commercial Litigation Branch
                                                             Civil Division
                                                             P.O. Box 875
                                                             Ben Franklin Station
                                                             Washington, D.C. 20044-0875
                                                             (202) 514-7194

                                                                        5

                                                  tN THE UNITED 'STATES DISTRICT COURT
                                                   FOR THE DISTRICT OF COLUMBIA

                 ELOUtSE PEPION COBELL, et al.,     )
                                                                 )
                                  Plaintiffs,          )
                                                                 )
                               v.                       )            Case No. 1:96CV01285
                                                                 )            (Judge Lamberth)
                 GALE A. NORTON, Secretary of the    )
                 Interior, et al.,                               )
                                                                 )
                                  Defendants.        )
                                                               ....

                                                                                                                                                                                                   ORDER
                         Upon consideration of Defendant's Motion to Strike Plaintiffs' Untimely Filings,
                 any response thereto, and the record in this case, the Court finds that the motion should be
                granted.
                         Plaintiffs failed to timely file and serve, pursuant to LCvR 7.1, and failed to seek leave
                for an enlargement of time to file and serve late the following papers:
                (1)     Plaintiffs' January 24, 2003 Opposition to Interior Defendants' Motion for
                         Reconsideration of Order Prohibiting Communications with Class Members ("january
                         24, 2003 Opposition");
                (2)     Plaintiffs' January 28, 2003 Reply In Further Support of Motion To Compel Testimony
                         Of Acting Special Trustee Donna Erwin Who Was Directed Not to Answer Certain
                         Questions on the Basis of Attorney-Client Privilege and Harassment and Motion for
                         Sanctions ("January 28, 2003 Reply");
                (3)     Plaintiffs' January 29, 2003 Reply in Support of their Consolidated Motion to Remove

                            Earl Old Person as a Class Representative and Motion of Class Counsel to Withdraw As
                          Counsel for Earl Old Person in Any Capacity Other Than as Class Counsel for a Member
                          of the Certified Class ("January 29, 2003 Reply No. 1"); and
                 (4)     Plaintiffs' January 29, 2003 Reply in Support of Their Consolidated Motion to Modify or
                          in the Alternative Stay the Production Order of December 23, 2002 as It Pertains to Earl
                          Old Person and Motion for Protective Order to Prevent the Deposition of Mr. Old Person
                          ("January 29, 2003 Reply No. 2").
                 Accordingly, it is hereby
                          ORDERED that Defendants' motion to strike Plaintiffs' January 24, 2003 Opposition,
                 Plaintiffs' January 28, 2003 Reply, Plaintiffs' January 29, 2003 Reply No. 1 and Plaintiffs'
                 january 29, 2003 Reply No. 2 be, and hereby is, GRANTED WITH PREJUDICE.
                         SO ORDERED.

                                                                              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, N.W.
                 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
                Joseph S. Kieffer, IH
                Special Master-Monitor
                420 - 7 th
                                     Street, N.W,
                Apartment 705
                Washington, D.C. 20004

                                                              CERTIFICATE OF SERVICE
                          I declare under penalty of perjury that, on January 30, 2003, I served the foregoing
                 interior Defendants'Motion to Strike Plaintiffs' Untimely Filings 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 Brown, Esq.
                 I712 N Street, NW                                                1275 Pennsylvania Avenue, NW
                 Washington, DC 20036-2976                                   Ninth Floor
                 202-822-0068                                                      Washington, DC 20004
                                                                                       202-318-2372
                 and by U.S. Mail upon:
                 Elliott Levitas, Esq.
                 1100 Peachtree Street, Suite 2800
                 Atlanta, GA 30309-4530
                 and by U.S. Mail and by facsimile upon:
                 Alan L. Balaran, Esq.
                 Special Master
                 1717 Pennsylvania Ave., NW
                 12th Floor
                 Washington, DC 20006
                 202-986-8477
                 and by Hand Delivery upon:
                Joseph S. Kieffer, IH, Esq.
                Special Master-Monitor
                420 7th Street, NW
                Apt 705
                Washington, DC 20004
                202-478-t 958

                                                                              Sean P. Schmergel