IN THE UNITED STATES DISTRICT COURT
                                                      FOR THE DISTRICT OF COLUMBIA                                        _.      . ,.

                 ELOUISE PEPION COBELL et al.._:.,            )                                                    "
                                                                                                                                          _ u,::.:
                                                                           )        No. 1:96CV01285
                                    Plainti frs,                          )        (Judge Lamberth)
                             v.                                           )
                                                                          )
            GALE A. NORTON, Secretary of              )
                the Interior, et al__,                                   )
                                                                          )
                          Defendants.                      )
                                                                          )
                             INTERIOR DEFEND,_,NTS' REPLY IN SUPPORT OF
                                          MOTION FOR AUTHORITY TO COMMUNICATE
                                                  WITH CLASS MEMBERS REGARDING
                                          THE HISTORICAL STATEMENTS OF ACCOUNT
                          The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
                Defendants," or "Interior") respectfully submit the following Reply in Support of Motion for

                Authority To Communicate with Class Members Regarding Historical Statements of Account

                ("Interior's Class Communication Motion").l


                          Plaintiffs' recent penchant for consolidating in one paper somewhat related, but
                conceptually distinct, issues may have some limited conservation benefits, but necessarily
                produces confusion and interferes with the orderly and efficient briefing of issues.  It also seems
                to be a calculated effort to improperly assert arguments in a surreply, without bothering to ask
                authority from the Court. For example, in Plaintiffs' Consolidated Reply and Opposition:
                (1) Reply re Motion for Order Directing Defendants to Rescind Notice Sent to 1200 Juvenile
                Trust Beneficiaries and (2) Opposition to Interior Defendants' Motion For Authority To
                Communicate with Class Members Regarding the Historical Statements of Account
                ("Opposition"), Plaintiffs actually provide arguments related to three distinct motions before the
                Court:  (1) they improperly assert additional surreply arguments opposing Interior's Motion for
                Reconsideration of the Court's December 23, 2002, Rule 23(d) Order (see, e.g., Opposition at 1-
                5, 9-10); (2) they provide a reply in support of their motion to rescind accountings; and (3) they
                oppose Interior's Class Communication Motion.  Interior will limit the scope of this Reply to
                arguments raised by Plaintiffs in opposition to Interior's Class Communication Motion. It will
                not address the misleading arguments related to the Motion for Reconsideration and urges the
                Court to ignore such improper surreply comments.




                          In Interior's Class Communication Motion, Interior seeks authority to communicate with
               two different sets of account holders regarding historical statements of account. First, it seeks
               authority to communicate with the approximately 14,000 account holders for whom historical
               statements of account have been completed, but not yet mailed. For class member account
               holders Interior is willing, if desired by the Court, to include in the notice sent to the account
               holders along with their historical statement of account the information set forth in the proposed
               order accompanying Interior's Class Communication Motion. Second, if desired by the Court,
               Interior seeks authority to communicate with the class member account holders who have already
               received historical statements of account and inform them of the effect, if any, of the prior
               communication. 2

                       In their Opposition, Plaintiffs do not seriously dispute the substance of the
               communication proposed by Interior. Indeed, in many respects, the notice proposed by Interior
               with respect to those account holders who have already received statements is not significantly
               different from the communication proposed by Plaintiffs. 3  It also remains undisputed that any
               order from the Court regarding further communication related to the historical statements of
               account should be limited to those account holders who are class members. 4 The issue that

              g'       As discussed in Interior's Opposition to Plaintiffs' Motion for an Order Directing
              Defendants to Rescind Notice Sent to 1200 Trust Beneficiaries ("Interior's Opposition), Interior
              currently believes that only one account holder who received the prior communication is a class
              member, with another 73 that need further investigation. See Interior's Opposition at 7.
              3_/       The differences between the communication proposed by Interior and that proposed by
              Plaintiffs are described in Interior's Opposition. See Interior's Opposition at 3-4.
              4_/       Under the Court's December 23, 2002 Rule 23(d) Order, Interior does not believe that it
              needs Court permission to communicate with account holders who are not class members, but
              because there is a dispute about which account holders are class members, Interior will not mail
                                                                       2




                remains in dispute is which account holders are class members.
                        Interior believes that the February 4, 1997 class certification Order provides the current
               definition of the scope of the class and that under that Order only account holders whose
               accounts were created on, or before, February 4, 1997, are class members. Plaintiffs previously
               indicated that they believed that even account holders whose accounts were created after
               February 4, 1997 were class members. See Plaintiffs' Supplemental Reply in Support of
               Preliminary Injunction at 5 n.4 (filed December 2, 2002). In their Opposition, Plaintiffs do not
               advance this argument again, but do not provide any indication as to their understanding of the
               current scope of the class. Although Plaintiffs concede that Interior's position has "superficial
               merit," (Opposition at 3 n.6), rather than give their own interpretation Plaintiffs content
               themselves with disagreeing with Interior and simply describe Interior's view as "overly-
               narrow." Opposition at 7. 5

                       Plaintiffs' reliance on the Court's December 23, 2002 Rule 23(d) Order as support for
               their attack on Interior's interpretation of the scope of the class is misguided. The Court makes

               any historical statements of account until this dispute is resolved by the Court.
                       Plaintiffs assert that Interior's position on the scope of the class has changed and that
              Interior somehow conceded at a November 1, 2002 hearing that all account holders are class
              members. See Opposition at 6 n.9. As even the abbreviated portion of the transcript quoted by
              Plaintiffs in their Opposition makes clear, counsel for Interior never told the Court that all
              account holders that had received, or would receive, the historical statements of account were
              class members. To the contrary, at the time of the hearing Interior did not know how many
              account holders who received statements were class members, but did know that many of the
              thousands yet to be sent were for accounts that had been created before February 4, 1997.
              Interior promptly notified the Court of this issue in the initial supplemental paper regarding class
              issues that was ordered by the Court at the November 1, 2002 hearing and informed the Court
              that it was investigating which account holders, if any, might be class members. See
              Supplemental Opposition to Plaintiffs' Motion for a Preliminary Injunction Regarding Historical
              Statements of Account at 5 n.4 ("Supplemental Opposition") (filed November 15, 2002).
                                                                       3




                 no mention of the scope of the class in the Rule 23(d) Order. Therefore, unless Plaintiffs have
               some sort of telepathic powers, it is impossible for them to assert that "[i]t is quite clear that this
               Court does not interpret its Scope of Class Order in the overly-narrow manner defendants would
               wish for." Opposition at 7.
                        In addition, Interior does not argue anywhere that the scope of the class is "undefined."
               Opposition at 8. To the contrary, the scope of the class is defined quite clearly in the February 4,
               1997 class certification Order: "present and former beneficiaries of Individual Indian Money
               accounts."  February 4, 1997 Order at 2-3. Interior has merely noted that since the Court has not
               amended that Order, or otherwise described the scope of the class pursuant to Rule 23(c)(3), the
               February 4, 1997 definition of the class is the current, and only, definition of the class. 6

                            Also, contrary to Plaintiffs' mischaracterization (Opposition at 7), Interior is not arguing
               that only one of the judgment account holders, who would receive statements of account if
               Interior's Class Communication Motion is granted, is a class member. Indeed, of the additional
               approximately 14,000 historical statements of account that have been completed, a large portion
               are for judgrnent accounts that were created before February 4, 1997 and thus would be sent to
              the parents or legal guardians of class members. Interior is merely informing the Court that of
              the approximately 1,200 historical statements of account already sent out, as of today only one of
              the account holders for whom the statements were prepared can be conclusively identified as a


                       Plaintiffs deliberately misconstrue Interior's position as one seeking an amendment of the
              class certification order (see Opposition at 6 n. 10). Interior is not asking the Court to modify the
              scope of the class. Interior is simply informing the Court that the scope of the class currently is
              limited to account holders whose accounts were created on, or before, February 4, 1997 and that
              any further communication related to historical statements of account permitted, or ordered, by
              the Court should take into account whether the recipient is a class member or not.
                                                                       4




                 class member]
                                                               CONCLUSION
                        For these reasons, Interior's Class Communication Motion should be granted.
               Dated: February 24, 2003                       Respectfully submitted,
                                                                    ROBERT D. McCALLUM, JR.
                                                                    Assistant Attorney General
                                                                    STUART E. SCHIFFER
                                                                    Deputy Assistant Attorney General
                                                                    J. CHRISTOPHER KOHN f-)
                                                                    Director  ..  ,,  _    /   /

                                                                       /     /

                                                          SXNO fsPoo 
                                   Deputy D !fi.C?_O r J
                                                                    D.C. Bar No. 2-6-1495
                                                                  JOHN T. STEMPLEWICZ
                                                                    Senior Trial Attorney
                                                                    CYNTHIA L. ALEXANDER
                                                                    PHILLIP M. SELIGMAN
                                                                    Commercial Litigation Branch
                                                                    Civil Division
                                                                   P.O. Box 875
                                                                   Ben Franklin Station
                                                                    Washington, D.C. 20044-0875
                                                                   (202) 514-7194





                       Plaintiffs suggest that it was improper to give Plaintiffs' counsel copies of the historical
              statements of account that have already been mailed if the account holder was not a class
              member. Opposition at 6 n.9. The November 1, 2002 Order authorizes Interior "to provide
              plaintiffs' counsel with a copy of any historical statements of account provided to any Individual
              Indian Money account holder," November 1, 2002 Order at 1, and is not limited to class member
              account holders. As the November 1, 2002 Order indicates, the information provided to
              Plaintiffs' counsel is subject to the terms of the November 27, 1996 Protective Order.
                                                                       5




                                                            CERTIFICATE OF SERVICE
                        I declare under penalty of perjury that, on February 24, 2003, I served the foregoing
               Interior Defendants' Reply in Support of Motion for AuthoriO,' to Communicate with Class
               Members Regarding the Historical Statements of Account 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.
               1712 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
               13th Floor
               Washington, DC 20006
               202-986-8477
               and by hand upon:
               Joseph S. Kieffer, III, Esq.
               Special Master-Monitor
               420 7th Street, NW
               Apt 705
               Washington, DC 20004




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                               Schmergel         /