IN THE UNlTED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUlSE PEPION COBELL, al,, 
Plaintifls, 
V. Case No. 1:96CVO1285 
(Judge Lainberth) 
1 
) 
1 
1 
1 
1 
GALE NORTON, Secretary of the Interior, al,, ) 
Defendants. 
1 
1 
Dated: July 25,2005 
+KLGli-- 
NOTICE OF APPEAL 
Notice is hereby given that all defendants in the ilbove-named case hereby appeal to the 
United States Couit ofAppeals for the 13istrict ofColumbia Circuit f.om the Order snd the 
Memorandum Opinion entered in tlie above-named case on July 12,2005, under Docket Nunibers 
3072 and 3076. A copy of the Order and a copy of the Memorandum Opinion are attached. 
Respectfully siibniitted, 
ROBERT McCALLUM, .JR. 
Associate Attorney General 
PETER D. ICEISLER 
Assistant Attorney General 
STUART E. SCI-WFER 
Deputy Assistant Attorney General 
J. CIIRISTOPI-IER KOKN 
Director 
ROBE T E. IURSCHMAN. Jr. 
(D.C. Bar No. 406G35) 
Assistant Dircctor 
CYNTHIA L. ALEXANDER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station Washington, D.C. 20044-0875 
Phone (202) GlG-0328 
Fax (202) 514-91G3 
2 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on July 25,2005 I served the foregoing Notice of 
Appetrl by racsiinile in accordance with their written request of October 31,2001 upon: 
ICeith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Riglils Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 872-0068 
Per the Courts Order of April 17,2003, 
by facsimile upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
Dennis M. Gingold, Esq. 
Mark Iceslcr Brown, Esq. 
GO7 - 14th Street, NW, Box G 
Washington, D.C. 20005 
(202) 318-2372 Case 1:96-cv-01285-RCL Document 3072 Filed 07/12/2005 Page 1 of 3
 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________ 
ELOUISE PEPION COBELL, et al., 
on their own behalf and on behalf of 
all those similarly situated, 
Plaintiffs, 
Civil Action No. 96-1285 (RCL) v. 
))
))
))
) 
GALE NORTON, 
Secretary of the Interior, et al., 
))))
) Defendants. 
____________________________________) 
ORDER 
In accordance with the Memorandum Opinion issued this date, and upon consideration of 
the plaintiffs Motion [2746] to Require Defendants to Give their Beneficiaries Notice of their 
Continuing Inability or Refusal to Discharge their Fiduciary Duties, the opposition thereto, the 
reply brief, the applicable law, and the entire record herein, it is hereby 
ORDERED that the plaintiffs Motion [2746] to Require Defendants to Give their 
Beneficiaries Notice of their Continuing Inability or Refusal to Discharge their Fiduciary Duties 
is GRANTED; it is further 
ORDERED that the following language from the second ordered paragraph of the Courts 
December 23, 2002 Memorandum and Order [1692] is VACATED: 
The instant Order does not prohibit defendants from communicating with 
class members in the ordinary course of business on routine matters 
unrelated to the instant litigation. 
It is further ORDERED that the Interior must, within twenty (20) days of this date, 
complete all preparations and distribute all instructions necessary to ensure the implementation
Case 1:96-cv-01285-RCL Document 3072 Filed 07/12/2005 Page 2 of 3
 
of this Order; and it is further 
ORDERED that, beginning twenty-one (21) days from this date and continuing until 
either the conclusion of this litigation or further Order of the Court, all written communications, 
including electronic mail (e-mail) and facsimile communications, from Interior, its agents, 
representatives, employees, officials, or counsel to any current or former Individual Indian 
Money (IIM) Trust account holder must include the following notice: 
Please be aware that past and present Individual Indian Money (IIM) Trust 
account holders may be members of a class action lawsuit, Cobell v. Norton, 
No. 1:96CV01285 (D.D.C.) (Judge Lamberth). The defendants in this lawsuit, 
the Secretary of the United States Department of the Interior and the Secretary 
of the United States Department of the Treasury, are the federal governments 
Trustee-Delegates for the IIM Trust. The Court in the Cobell case has ruled 
that the Department of the Interior must provide each IIM Trust beneficiary 
with a complete and accurate accounting of his or her IIM Trust account. 
Because other related matters are not yet resolved, the Cobell case is still 
pending and the accounting has not yet been completed. 
While the Cobell case is ongoing, the Court has determined that it is essential 
to ensure that communications from the Department of the Interior do not 
adversely affect the rights of IIM Trust account holders who are also members 
of the Cobell lawsuit. For that reason, this notice is included with this 
communication for the information of current and former IIM Trust account 
holders. 
Evidence introduced in the Cobell case shows that any information related to 
the IIM Trust, IIM Trust lands, or other IIM Trust assets that current and 
former IIM Trust account holders receive from the Department of the Interior 
may be unreliable. Current and former IIM Trust account holders should keep 
in mind the questionable reliability of IIM Trust information received from the 
Department of the Interior if and when they use such information to make 
decisions affecting their IIM Trust assets. 
Current and former IIM account holders have the right to consult with the 
attorneys for the class in Cobell v. Norton regarding this notice or any other 
matter related to the IIM Trust. For further information you may access the 
Cobell class website, www.indiantrust.com or contact the following attorneys 
representing the Cobell class: Dennis M. Gingold, Esq., 607 14th Street, N.W., 
2
Case 1:96-cv-01285-RCL Document 3072 Filed 07/12/2005 Page 3 of 3
 
9th Floor, Washington, DC 20005, phone: (202) 824-1448, fax: (202) 318- 
2372, email: dennismgingold@aol.com, or Keith Harper, Esq., Native 
American Rights Fund, 1712 N Street, N.W., Washington, DC 20036-2976, 
phone: (202) 785-4166, fax: (202) 822-0068, email: harper@narf.org. 
It is further ORDERED that, within thirty (30) days of this date, Interior shall file with the 
Court and serve upon the plaintiffs a certification detailing the arrangements that Interior has 
made for implementation of this Order, including all instructions and other notices regarding this 
Order distributed to Interior bureaus, offices, employees, or agents, and certifying that the notice 
specified herein is being distributed in compliance with this Order; and it is further 
ORDERED that no communications of any kind between Interior and any person or entity 
shall be suspended, halted, withheld, or delayed in any manner or for any period of time as a 
result or consequence of this Order. This Order does not affect either: (1) the processing or 
distribution by Interior, its agents, representatives, employees, or officials of any checks or other 
funds in any form to any person; or (2) oral communications between Interior, its agents, 
representatives, employees or officials and any person, whether in person or by telephone. 
It is further ORDERED that the plaintiffs shall, within a reasonable time after this date, 
file with the Court and serve upon the defendants a proposed notice to the plaintiff-class 
concerning the plaintiffs Petition for Interim Fees Under the Equal Access to Justice Act, as well 
as a proposed plan for distributing that notice to the class. 
SO ORDERED. 
Signed by Royce C. Lamberth, United States District Judge, July 12, 2005. 
3
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 1 of 34
 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________ 
ELOUISE PEPION COBELL, et al., 
on their own behalf and on behalf of 
all those similarly situated, 
Plaintiffs, 
v. 
))
))
))
) 
GALE NORTON, 
Secretary of the Interior, et al., 
))))
) Defendants. 
____________________________________) 
MEMORANDUM OPINION 
The plaintiffs Motion [2746] to Require Defendants to Give their Beneficiaries Notice of 
their Continuing Inability or Refusal to Discharge their Fiduciary Duties presents one of the few 
questions in this case that remain unaddressedwhether the Court should order the distribution 
of a notice containing information about this litigation to the entire 500,000-member plaintiff 
class. Federal Rule of Civil Procedure 23(d), the extensive factual record, and the prior law of 
the case govern the answer. After considering the plaintiffs motion, Interiors memorandum in 
opposition, the plaintiffs reply brief, the applicable law, and the entire record herein, the Court 
concludes that the plaintiffs motion will be granted. 
BACKGROUND 
At times, it seems that the parties, particularly Interior, lose sight of what this case is 
really about. The case is nearly a decade old, the docket sheet contains over 3000 entries, and the 
issues are such that the parties are engaged in perpetual, heated litigation on several fronts 
Civil Action No. 96-1285 (RCL) 
1
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 2 of 34
 
simultaneously. But when one strips away the convoluted statutes, the technical legal 
complexities, the elaborate collateral proceedings, and the layers upon layers of interrelated 
orders and opinions from this Court and the Court of Appeals, what remains is the raw, shocking, 
humiliating truth at the bottom: After all these years, our government still treats Native American 
Indians as if they were somehow less than deserving of the respect that should be afforded to 
everyone in a society where all people are supposed to be equal. 
For those harboring hope that the stories of murder, dispossession, forced marches, 
assimilationist policy programs, and other incidents of cultural genocide against the Indians are 
merely the echoes of a horrible, bigoted government-past that has been sanitized by the good 
deeds of more recent history, this case serves as an appalling reminder of the evils that result 
when large numbers of the politically powerless are placed at the mercy of institutions 
engendered and controlled by a politically powerful few. It reminds us that even today our great 
democratic enterprise remains unfinished. And it reminds us, finally, that the terrible power of 
government, and the frailty of the restraints on the exercise of that power, are never fully revealed 
until government turns against the people. 
The Indians who brought this case are beneficiaries of a land trust created and maintained 
by the government. The Departments of the Interior and Treasury, as the governments Trustee- 
Delegates, were entrusted more than a century ago with both stewardship of the lands placed in 
trust and management and distribution of the revenue generated from those lands for the benefit 
of the Indians. Of course, it is unlikely that those who concocted the idea of this trust had the 
Indians best interests at heartafter all, the original General Allotment Act that created the trust 
was passed in 1887, at a time when the government was engaged in an effort to eradicate Indian 
2
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 3 of 34
 
culture that was fueled, in part, by a greed for the land holdings of the tribes[.] Cobell v. 
Babbitt (Cobell V), 91 F. Supp. 2d 1, 78 (D.D.C. 1999). But regardless of the motivations of 
the originators of the trust, one would expect, or at least hope, that the modern Interior 
department and its modern administrators would manage it in a way that reflects our modern 
understandings of how the government should treat people. Alas, our modern Interior 
department has time and again demonstrated that it is a dinosaurthe morally and culturally 
oblivious hand-me-down of a disgracefully racist and imperialist government that should have 
been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we 
thought we had left behind. 
The present motion asks the Court to revisit what has become one in a list of lamentable 
circumstances revealed by this litigation: Despite Interiors near wholesale abdication of its trust 
duties, the vast majority of the Indian beneficiaries remain unaware that anything is out of order. 
Interior distributes various kinds of information to Indian beneficiaries, and the beneficiaries, 
uninformed of the wretched state of things at Interior, make decisions that affect their trust assets 
on the basis of that information. The plaintiffs now ask the Court to consider the possibility that 
Interiors ghastly past performance calls into question the reliability of any information it 
distributes to the Indians. If Interior cannot truthfully guarantee that it is providing the 
beneficiaries with accurate information on which to base decisions that materially affect their 
interests in the trust, then the beneficiaries deserve, at the very least, a warning to that effect. 
Any ordinary, reasonable trustee under similar circumstances would have given each and every 
beneficiary such a warning years ago. Unhappily, Interior is no ordinary trustee. 
3
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 4 of 34
 
Factual History A. 
Interiors management of the Indian trust has been a nightmare from the beginning. A 
1992 congressional report noted: 
Scores of reports over the years by the Interior Departments inspector 
general, the U.S. General Accounting Office, the Office of Management and 
Budget, and others have documented significant, habitual problems in the 
[Bureau of Indian Affairss] ability to fully and accurately account for trust 
fund moneys, to properly discharge its fiduciary responsibilities, and to 
prudently manage the trust funds. 
Misplaced Trust: The Bureau of Indian Affairs Mismanagement of the Indian Trust Fund, H.R. 
No. 102-449 (1992). Despite this show of concern, the record in this case establishes that 
Congresss efforts to address the problem have failed. Not surprisingly, Interiors internal efforts 
to reform trust management, lately undertaken at this Courts direction, have also universally 
crashed and burned. What remains is the same situation that obtained at the outset of this case: 
Interiors unremitting neglect and mismanagement of the Indian trust has left it in such a 
shambles that recovery may prove impossible. 
The ignominious record speaks for itself. Interior does not know the precise number of 
[Individual Indian Money trust (IIM)] accounts that it is to administer and protect. Cobell v. 
Norton (Cobell VI), 240 F.3d 1081, 1089 (D.C. Cir. 2001). Interior does not know the proper 
balances for each IIM account, nor does Interior have sufficient records to determine the value of 
IIM accounts. Cobell VI, 240 F.3d at 1089. This Court has noted that the United States freely 
gives out balances to plaintiffs, [but] it admits that currently these balances cannot be supported 
by adequate transactional documentation. Cobell V, 91 F. Supp. 2d at 10. And, [c]urrent 
account reconciliation procedures are insufficient to ensure that existing account records, 
4
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 5 of 34
 
reported account balances, or payments to IIM beneficiaries are accurate. Cobell VI, 240 F.3d 
at 1089. One result is that Interior issues payments to Indian beneficiaries in erroneous 
amountsfrom unreconciled accountssome of which are known to have incorrect balances. 
Cobell V, 91 F. Supp. 2d at 6. Interior cannot even determine which IIM account holders are 
members of the plaintiff class. See Mem. & Order [2587], May 28, 2004, at 23. Thus, every 
communication Interior issues to IIM account holders is likely to end up in the hands of at least 
some class members. 
The Court has concluded that the 1994 Indian Trust Fund Management Reform Act 
requires [Interior] to retrieve and retain all information concerning the IIM trust that is necessary 
to render an accurate accounting of all money in the IIM trust. Cobell V, 91 F. Supp. 2d at 58. 
While the Court has consistently emphasized Interiors duty to preserve trust records against loss, 
damage, and destruction, it has become clear that Interiors complete and continuing default in 
this obligation remains a primary cause of its inability to properly administer the IIM trust. On 
February 22, 1999, the Court found that unchecked rodent infestations were damaging trust 
documents at storage facilities in Nebraska and New Mexico; and that trust documents and 
microfiche held by the Department of the Treasury had been recently destroyed. See Cobell v. 
Babbitt, 37 F. Supp. 2d 6, 15, 22 n.8, 28 (D.D.C. 1999). These findingsand the realization that 
former Secretaries of the Interior and Treasury, along with an Assistant Secretary of the Interior 
for Indian Affairs, had mislead the Court with respect theretoprompted the Court to cite those 
individuals for civil contempt. Cobell, 37 F. Supp. 2d at 3940. As an additional response, the 
Court appointed a Special Master who was charged with, among other things, ensuring that trust 
records were properly safeguarded during the pendency of this case. See Order [213], Feb. 22, 
5
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 6 of 34
 
1999. While the Special Masters efforts were informative, they proved to be an insufficient 
motivation for Interior to reform its records-management practices 
Examples abound. The Special Master informed the Court that numerous Interior offices 
lacked the basic facilities and procedures to ensure the safety of trust documents retained in paper 
form. See, e.g., Report of the Special Master Regarding Site Visits to Area and Agency Offices 
(Apr. 25, 1999); Report of the Special Master Regarding Site Visits to Area and Agency Offices 
(Oct. 29, 1999). He discovered trust records stored in puddles of water, near bags of fertilizer, 
and alongside containers of combustible fuels, tires, and debris of various kinds. See Third 
Report of the Special Master Regarding Site Visits to Area and Agency Offices (Nov. 12, 1999). 
He found remnants of trust documents that had been shredded. See Site Visit Report of the 
Special Master to the Office of Information Resources Management (Mar. 12, 2001). He 
reported that Interiors Office of the Special Trustee/Office of Trust Records, which is most 
directly responsible for ensuring the preservation of trust documents, had no effective trust 
records training program. See Second Investigative Report of the Special Master Regarding the 
Office of Trust Records (Apr. 11, 2002). The Special Master also alerted the Court that Interior 
had decided to relocate 32,000 boxes of active trust documents to the Lees Summit Federal 
Records Center without regard to the consequences and with utter indifference to the safety of 
these records or to the ability of IIM beneficiaries to have meaningful access to vital 
information[.] See Emergency Report of the Special Master Regarding Defendants Proposed 
Relocation of Records to the Lees Summit Federal Records Center (Apr. 17, 2002), at 2223. 
Interiors management of electronic trust records has proven even more abysmal, if that is 
possible. See, e.g., Report and Recommendation of the Special Master Regarding the Security of 
6
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 7 of 34
 
Trust Data at the Department of the Interior (Dec. 4, 2001) (describing a department-wide lack of 
electronic data security). The Court has disconnected various bureaus and offices within Interior 
from the Internet on more than one occasion on the basis of evidence that security for electronic 
trust data was inadequate. See Temporary Restraining Order [1036], issued Dec. 5, 2001, at 2; 
Cobell v. Norton, 274 F. Supp. 2d 111, 135 (D.D.C. 2003); Cobell v. Norton, 310 F. Supp. 2d 
98, 99100 (D.D.C. 2004). In fact, the Court is currently conducting a lengthy evidentiary 
hearing on this very issue, which has been revived by the plaintiffs newest allegations that 
electronically-stored Indian trust data is at risk of corruption. 
The problems that result from Interiors inability to maintain complete and accurate 
records of the IIM trust are compounded and made more intractable by the penchant of Interiors 
employees, officials, and litigation counsel to be less than forthcoming with the Court. Aside 
from the 1999 contempt citations mentioned above, the Court also held Secretary of the Interior 
Gale Norton and former Assistant Secretary of Indian Affairs Neal McCaleb in civil contempt 
for, among other things, misleading the Court about the status of Interiors trust reform efforts 
and computer security. See Cobell v. Norton, 226 F. Supp. 2d 1, 2946, 88130 (D.D.C. 2002). 1 
In December 2002, the Court referred a number of Interiors litigation counsel from the 
Department of Justice to the Courts Committee on Grievances after reviewing evidence 
indicating that they had participated in Interiors efforts to communicate with plaintiff-class 
members without authorization from plaintiffs counsel in violation of D.C. Rule of Professional 
1While the contempt citations themselves were vacated on appeal, see Cobell v. Norton, 334 F.3d 1128, 
114550 (D.C. Cir. 2003), the Court of Appeals did not call this Courts findings of fact into question. As such, the 
factual findings that supported the 2002 contempt citations will be treated as having been established. Cobell v. 
Norton, 283 F. Supp. 2d 66, 85 (D.D.C. 2003). 
7
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 8 of 34
 
Conduct 4.2(a).2 See Cobell v. Norton, 212 F.R.D. 14, 2324 (D.D.C. 2002). Though the 
Committee on Grievances determined that no further action was warranted, it is nevertheless 
telling that evidence supporting such a disciplinary referral was produced at all. 
Add vindictiveness to dishonesty and managerial ineptitude. Interior has demonstrated a 
tendency to retaliate against both the Indian beneficiaries and its own employees when it feels 
slighted. On May 21, 1999, the Court entered an Order providing that: 
The Department of the Interior, together with all of its supervisory officials, 
are hereby enjoined from taking any retaliatory action, or making any threats 
of such action, for providing testimony or information in this action, against 
(1) any person who has identified as a potential witness in this case ..., (2) 
any person who is called upon through legal process ... to give testimony or 
provide other information in this litigation, or (3) any person individually 
identified by Plaintiffs, in writing, to Defendants as a potential witness in 
this action. 
Order [277], May 21, 1999. On March 7, 2000, the plaintiffs submitted to the Court affidavits 
from Mona Infield, a Bureau of Indian Affairs employee, in support of their motion for a 
temporary restraining order to preserve trust records that appeared to be in imminent danger of 
destruction. The Court granted the plaintiffs motion, see Order [451], Mar. 7, 2000, and it 
subsequently came to the Courts attention, after an investigation by the Special Master, that 
Interior had taken severe adverse employment actions against Ms. Infield after her affidavits were 
made public. See Recommendation and Report of the Special Master Concerning Plaintiffs 
Motion for Order to Show Cause [670], Feb. 21, 2001, at 16 (concluding that sufficient 
evidence [did exist] to support a finding of probable cause that the actions complained of by 
2Rule 4.2(a), also called the anti-contact rule, requires that: 
[d]uring the course of representing a client, a lawyer shall not communicate or cause 
another to communicate about the subject matter of the representation with a party known 
to be represented by another lawyer in the matter, unless the lawyer has the prior consent of 
the lawyer representing such other party or is authorized by law to do so. 
8
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 9 of 34
 
Infield were retaliatory and initiated in violation of the Courts [May 21, 1999] Order); Mem & 
Order [1218], Mar. 29, 2002 (accepting the Special Masters findings). 
The Court ordered Interior Secretary Gale Norton and Assistant Secretary Neal McCaleb 
to show cause why they should not be held in contempt for violating the Courts anti-retaliation 
order, see Mem. & Order [1480], Sept. 17, 2002, and the matter was later settled to the Courts 
satisfaction. See Stip. of Dismissal With Prejudice & Consent Order [1788], Feb. 6, 2003 
(vacating Sept. 17, 2002 show cause order on stipulation of settlement by parties).3 In the course 
of resolving the Infield matter, the Court cautioned Interior to consider the prospect of future 
contempt proceedings before engaging in further retaliatory behavior. Mem. & Order [1480], 
Mar. 29, 2002, at 5. It is illustrative enough of the depths to which Interior has sunk that the 
Court found it necessary to issue a general anti-retaliation order in the first place; but Interiors 
subsequent willful retaliation against its own employee in the face of such an order betrays a truly 
Machiavellian guile. 
As if the Infield business was not enough, Interiors wrath was turned on the Indian 
beneficiaries themselves in the wake of the Courts September 29, 2004 order restricting 
communications between Interior and class members concerning sales of Indian trust land (the 
land-sales order). See Cobell v. Norton, 225 F.R.D. 41, 5354 (D.D.C. 2004) (explaining the 
basis for the land-sales order); Order [2708], Sept. 29, 2004 (specifying restrictions on land-sale- 
3Initially, the Court declined to issue a show cause order in the Infield retaliation matter after Interior 
represented to the Court that it had compensated Ms. Infield by offering her a permanent position and paying her 
attorneys fees. See Mem. & Order [1480], Mar. 29, 2002 (denying motion for order to show cause). But the Court 
later learned that Interiors offers to compensate Infield were illusory, and thus issued the order to show cause on 
renewed motion by the plaintiffs. See Mem. & Order, Sept. 17, 2002 (noting Interiors refusal to guarantee that the 
position offered to Ms. Infield would not be eliminated shortly after the show-cause motion was dismissed and that 
Interiors settlement offer included no provision for paying the plaintiffs attorneys fees in the matter; issuing order 
to show cause). 
9
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 10 of 34
 
related communications). Evidence collected by the plaintiffs demonstrated that [d]uring the 
period between October 1, 2004 and October 8, 2004, a number of individual Indian trust 
beneficiaries were denied either their trust checks or information regarding their trust checks by 
BIA employees who cited this Courts [land-sales] Order as justification. Cobell v. Norton, 335 
F. Supp. 2d 531, 542 (D.D.C. 2005). Of course, the Court had previously made clear at a hearing 
held on October 1, 2004, that the land-sales order had no effect whatsoever on Interiors ability to 
distribute trust checks. See Cobell, 335 F. Supp. 2d at 53334 (quoting Tr. (Stat Conf., Oct. 1, 
2004): to stop [trust checks] and [say] that its because of [the land-sales] order is a flat-out 
lie.). 
Apparently, Interiors withholding of trust checks or information about trust checks from 
the Indians was one outward manifestation of a period of Byzantine maneuvering within the 
department in an attempt to either evade or, failing that, mischaracterize and vilify this Court and 
the land-sales order. See Cobell v. Norton, 224 F.R.D. 266, 26971 (D.D.C. 2004) (discussing 
these activities in detail). As the Court explained, the evidence strongly supports the inference 
that: 
Either (1) the Secretary [of the Interior] was grossly negligent when she 
failed to add a proscription against the withholding of trust checks to the set 
of instructions distributed by Interior to the BIA on October 4, 2004, when 
the risk that checks would be withheld in the absence of such a proscription 
was reasonably foreseeable; or (2) the Secretary intentionally omitted a 
proscription against the withholding of trust checks from the October 4 
instructions despite her knowledge that checks would likely be withheld in 
the absence of such a proscription. 
Cobell, 335 F. Supp. 2d at 542. In light of the record in this case, the Court found it more likely 
that the Secretarys actions constituted willful misconduct, and invited the Secretary to give 
testimony to the contrary if the Courts conclusion was in error. See id. at 54243. The 
10
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 11 of 34
 
Secretary declined the Courts invitation. 
But these are only examples. The entire record in this case tells the dreary story of 
Interiors degenerate tenure as Trustee-Delegate for the Indian trusta story shot through with 
bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty 
tricks and outright villainythe end of which is nowhere in sight. Despite the breadth and 
clarity of this record, Interior continues to litigate and relitigate, in excruciating fashion, every 
minor, technical legal issue. See Cobell v. Norton, 357 F. Supp. 2d 298, 30607 (D.D.C. 2005). 
This is yet another factor forestalling the final resolution of the issues in this case and delaying 
the relief the Indians so desperately need. See id. It is against this background of 
mismanagement, falsification, spite, and obstinate litigiousness that this Court is to evaluate the 
general reliability of the information Interior distributes to IIM account holders. 
Procedural History B. 
This is not the first time the Court has considered authorizing some form of notice to 
plaintiff-class members, though the propriety of class-wide notice is a matter of first impression. 
On December 23, 2002, pursuant to Federal Rule of Civil Procedure 23(d), the Court ordered that 
Interior could no longer conduct communications with Indian trust beneficiaries that threatened 
their rights as class members (the class communication order). See Cobell, 212 F.R.D. at 24. 
The broad relief granted in the class communication order was predicated on the Courts finding 
that the cover letter Interior included with certain account statements distributed to a number of 
IIM account holderswhich gave the recipient a fairly narrow window of time in which to 
appeal the content of the statement before it became finalhad the effect of extinguishing Indian 
beneficiaries rights to a full and accurate accounting of their trust assets. See Cobell, 212 F.R.D. 
11
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 12 of 34
 
at 17. The class communication order suspended Interiors mailing of any future account 
statements until the Courts approval was obtained. See id. at 20. On May 28, 2004, the Court 
approved Interiors proposal to mail a number of account statements along with a notice 
informing recipients that they might be class members and that the account statement would not 
adversely effect their rights in this litigation. See Mem. & Order [2587], May 28, 2004, at 56. 
The Court found that this notice was sufficient to protect class members against the particular 
kind of harm threatened by the account statements. See id. at 45. 
Later in 2004, the Court considered whether Interiors communications with Indian trust 
beneficiaries concerning sales of Indian trust land threatened to extinguish the class rights by 
facilitating the permanent alienation of trust corpus on the basis of inadequate or incorrect 
information from Interior. Concluding on the weight of the evidence that the communications 
did pose such a threat, and that they therefore violated the class communication order, the Court 
invoked Rule 23(d) to suspend land-sales-related communications between Interior and the 
plaintiff class. See Cobell, 225 F.R.D. at 5354. The Court later approved, as it did for the 
account statements mentioned above, a form of notice designed to protect class members rights 
to be included with all land-sales-related communications going forward. See Cobell, 224 
F.R.D. at 28889. Approval of this notice followed a series of hearings conducted by the Court 
to address Interiors befuddlement concerning the effect of the Courts land-sales order. 
Interior was particularly confused about what types of communications were covered by 
the Courts order. Specifically, the Court found it necessary to expressly exclude from the notice 
requirement communications between Interior and Indian beneficiaries concerning: 1. 
Encumbrances, leasing, lease sales, permitting, rights of way, and timber sales of or on 
12
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 13 of 34
 
individually-owned Indian trust land; 2. The investment of trust funds in [individual Indian 
money trust] accounts; 3. Estate planning, will drafting and the probate of or relating to Indian 
trust assets; 4. The surveying or appraisal of trust assets; 5. Title to trust lands; 6. Ownership of 
trust fund lands; [and] 7. Physical improvement or alteration of trust assets. See Cobell, 224 
F.R.D. at 288. 
It is obvious that none of these kinds of communications are subject to an order that 
specifies communications regarding the sale of Indian trust land, as the Court verbally confirmed 
when Interior raised the question. See Tr. (Hrng., Oct. 1, 2004), at 1112; 1819. Nevertheless, 
Interior halted all these sorts of communications with Indians on the basis of a stubbornly 
formalist and acontextual reading of the Courts order. Interiors reasoning in this regard was 
exposed when Sandra Spooner, trial counsel for Interior at the time, informed the Court that one 
paragraph of the Courts land-sales order is not limited ... to land sales. We believe that that is 
what the Court intended, but we did not feel at liberty ... to assume that thats what the Court 
meant when that is not what the order said specifically. Tr. (Hrng., Oct. 1, 2004), at 14. 
Spooner advised the Court that Interiors management took this paragraph to preclude all 
communications with IIM beneficiaries, see id. at 18, despite the lack of reference to any type of 
communication other than communications related to sales of trust land in either the land-sales 
order or the accompanying Memorandum Opinion. 
The Court explained that the categories of communications determined to be outside the 
scope of the land-sales order had not been considered because the were not properly before the 
13
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 14 of 34
 
Court at the time,4 and that the Court would like to be educated similarly if there are any of 
these other items that [the Court] ought to be doing something about. Tr. (Hrng., Oct. 1, 2004), 
at 19. Later, the Court invited additional briefing concerning whether communications between 
Interior and Indian beneficiaries beyond those related to land sales should be subject to a broader 
Rule 23(d) order. See Tr. (Hrng., Oct. 19, 2004), at 21. The plaintiffs submitted the present 
motion in response to the Courts invitation. 
DISCUSSION 
The plaintiffs motion once again asks this Court to grant relief under Federal Rule of 
Civil Procedure 23(d). The plaintiffs argue that all communications from Interior to Indian 
beneficiaries containing IIM trust-related information threaten to extinguish the recipients rights 
as members of the plaintiff class. As such, they conclude, all such communications should be 
accompanied by a notice similar to notices the Court has required Interior to distribute in the 
past. Additionally, the plaintiffs want Interior to bear the burden and cost of distributing the 
notice. The Court agrees with the plaintiffs, and will order that Interior include a modified 
version of the plaintiffs proposed notice with all written communications from Interior to 
current and former IIM account holders at Interiors expense.5 
4Interior characterizes this decision as the Courts explicit[] recogni[tion] that these other types of 
communications are ones for which prior notice is not needed. Defs. Opp., at 9. To the contrary, however, the 
Court expressly reserved the question of notice to everyone under all circumstances[,] to be taken up separately in 
another month, or whenever its ripe. Tr. (Hrng., Oct. 19, 2004), at 21. Interiors contention that the Court 
exempted other types of communications from any future notice requirement at the time of the land-sales order is a 
flagrant misrepresentation of the record. 
5Interiors tongue-in-cheek summary of its responses to the plaintiffs motionThe Proposed Notice is the 
wrong notice at the wrong time to the wrong group of recipients paid for, and sent out by, the wrong party[,] Defs. 
Opp. at 2typifies the level of respect that Interior generally accords both the Indian beneficiaries and this Court. 
The puerile reference is not lost on the Court, but Interiors misguided attempt at levity in the context of litigating an 
issue of immense importance to 500,000 members of a historically oppressed people is disgraceful. Unfortunately, it 
is also unsurprising from a defendant that this Court has charged with setting the gold standard for arrogance in 
litigation strategy and tactics. Cobell, 357 F. Supp. 2d at 307. This Court has played host to countless pleadings 
14
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 15 of 34
 
Rule 23(d) Legal Standard i. 
Interior has previously conceded and does not now dispute this Courts authority to 
restrict Interiors communications with Indian beneficiaries pursuant to Rule 23(d). See Cobell, 
212 F.R.D. at 19 (citing Defs. Supp. Opp. Br. at 3; Defs. Surreply at 56). Rule 23(d), allows a 
Court presiding over a class action to impose conditions on the representative parties[,] 
Cobell, 212 F.R.D. at 19 (citing In re School Asbestos Litig., 842 F.2d 671, 683 (3d Cir. 1988)), 
including restrictions on communications with class members if those communications are found 
to interfere with the proper administration of a class action ... [or] abuse[] the rights of members 
of the class.6 Id. (quoting Jack Faucett Assocs., Inc. v. Am. Tel. & Tel. Co., 1985 WL 25746 at 
*5 (D.D.C. 1985). 
Importantly, restrictive orders issued under Rule 23(d) need not be predicated on a 
finding of actual harm; [Rule 23(d)] authorizes the imposition of a restricting order to guard 
against the likelihood of serious abuses. In re School Asbestos Litig., 842 F.2d at 683 
(quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981)). The Supreme Court directs that 
Rule 23(d) orders should be based on a clear record and specific findings that reflect a weighing 
of the need for a limitation and the potential interference with the rights of the parties. Gulf Oil, 
from clinically insane litigants and prison inmates but has rarely seen such a disrespectful tenor in a court filing. 
6Contrary to the first argument in Interiors opposition, Rule 23(d) places no time-related condition on the 
Courts authority to issue restrictive orders. See Defs. Opp., at 24 (pointing out at length that Plaintiffs do not 
explain in their Motion why, after nearly eight years of silence on all of the significant events in this case, a midlitigation, 
informational notice, ... is urgently needed now). Rule 23(d) does not require that a restrictive order be 
predicated on some recent event in a case, see Defs. Opp., at 4, but rather imbues the Court with ample 
discretion to fulfill its duty to restrict communications that threaten class members rights. See Kleiner, 751 F.2d at 
1203; Jack Faucett Assocs., 1985 WL 25746 at *5. Additionally, if the Court finds that Interiors communications 
with the Indian beneficiaries threaten class rights, those communications violate the class communications order. 
Surely Interior does not mean to argue that the Courts inherent authority to enforce its own orders is subject to some 
sort of timing requirement. But if that is the argument, there is no warrant for the claim that such a requirement 
exists. The only temporal limitation on the Courts consideration of action under Rule 23(d) is the requirement that 
such issues be raised on an appropriately briefed, ripe motion from one of the parties. 
15
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 16 of 34
 
452 U.S. at 101 (as quoted in Cobell, 212 F.R.D. at 19). 
The only right to be weighed against the need for a limiting order is Interiors First 
Amendment right to free speech. See Kleiner v. First Natl Bank of Atlanta, 751 F.2d 1193, 
120506 (11th Cir. 1985) (cautioning that free speech rights must bear on the decision to issue a 
Rule 23(d) order restricting communications). The Kleiner Court indicated that a finding of 
good cause is sufficient to support restricting communications, provided that the issuing court 
shows a heightened sensitivity for the First Amendment implications of the restriction. See 
Kleiner, 751 F.2d at 120506. The existence of good cause is determined by evaluating the 
severity and the likelihood of the perceived harm; the precision with which the order is drawn; 
the availability of a less onerous alternative; and the duration of the order. Id. The Court has 
already decided that threats to class rights are of adequate severity to support the issuance of a 
Rule 23(d) order where the proponent of the order establishes that the threatened harm is likely to 
occur. See Cobell, 212 F.R.D. at 20. The Court also previously determined that including a 
curative notice with harmful communications for the duration of the litigation is sufficiently 
precise in contour and limited in duration to avoid impinging on free-speech rights. See id. 
Finally, requiring notice is less onerous than the alternative of prohibiting the harmful 
communications altogether. 
Law of the Case: The Class Communications Order and the Land-Sales Order ii. 
Pursuant to its authority under Rule 23(d), the Court entered the class communications 
order to prohibit Interior from conducting with the Indian beneficiaries any communications that 
affect the rights of class members to a full and accurate accounting of their Individual Indian 
Money trust accounts. Cobell, 212 F.R.D. at 24. The Court excluded from the effect of this 
16
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 17 of 34
 
Order regular sorts of business communications with class members that occur in the ordinary 
course of business, as such communications do not purport to extinguish the rights of the class 
members in this litigation. Id. at 2021. 
Interior contends that this exception amounts to a per-se rule that communications 
occurring in Interiors ordinary course of business do not threaten class rights, see Defs. Opp. at 
89 (arguing that ordinary course of business communications by definition are 
communications where the rights of absent class members are not at risk), and thus that it 
precludes the relief requested here because most or all of the communications with which the 
plaintiffs are concerned take place in the ordinary course of Interiors business. See id. This 
argument betrays a misunderstanding of both the class communication order and its ordinarycourse-
of-business exception. 
In determining whether to issue the class communication order, the Court focused its 
Rule 23(d) inquiry on the effects of the challenged communications, explaining with respect to 
the account statements that what this Court considers improper is sending notices to individual 
class members that have the effect of extinguishing [their] rights .... Cobell, 212 F.R.D. at 19 
(emphasis added). The Courts attention to the actual effects rather than the types of the 
challenged communications debunks the defendants characterization of the ordinary-course-ofbusiness 
exception as a per-se rule. At least one respected treatise endorses the Courts 
reasoning, explaining that ordinary-course-of-business communications may be exempted from a 
Rule 23(d) restrictive order as long as the communications do not relate to the claims involved 
in the litigation .... 3 NEWBERG ON CLASS ACTIONS  15.18 (3d ed. 1992) (as quoted in Cobell, 
212 F.R.D. at 17). 
17
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 18 of 34
 
Indeed, though Interior argued that the communications restricted by the Courts landsales 
order occurred in the ordinary course of Interiors business, see Cobell, 225 F.R.D. at 52, 
the Court nevertheless found it necessary to restrict those communications. The Court again 
based its exercise of Rule 23(d) authority not on the type of communication at issue, but rather 
on the land-sales-related communications actual effects on class rights. See Cobell, 225 F.R.D. 
at 5253. The land-sales order stands for the proposition that even Interiors ordinary-course-ofbusiness 
communications may threaten class rights and thereby violate the class communication 
order. 
In analyzing the land-sales issue, the Court noted that the underlying rationale for 
enforcing the right to an accounting is to facilitate informed decision-making with respect to the 
disposition of trust assets. Cobell, 225 F.R.D. at 52. That means, at the very least, that the 
trust beneficiaries should retain all or most of their trust assets in as unaltered a state as is 
practicable, until Interior completes the required accounting, so that the completed accounting 
can support the kind of informed disposition of trust assets that ought to be facilitated by 
conscientious management by a principled fiduciary. Id. The Court elaborated: 
[w]hile it is difficult to envision the ways in which information about this 
litigation and the historical accounting that Interior has been ordered to 
produce would affect the decision of any given trust beneficiary on whether 
or not to sell trust land, it is impossible to imagine that such information 
would have no effect at all. If the underlying rationale for enforcing the 
right to an accounting is to facilitate informed decision-making with respect 
to the disposition of trust assets, then to allow beneficiaries to continue to 
make decisions that substantially alter their trust interests without 
information about this litigation and Interiors obligations is to effectively 
rob those beneficiaries of the cash value of their rights. 
Id. The plaintiffs now argue that all communications between Interior and IIM beneficiaries 
similarly rob class members of the cash value of their right to an accounting. 
18
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 19 of 34
 
Interiors Communications with Indian Beneficiaries iii. 
The plaintiffs advance a single argument in support of class-wide notice: In light of 
Interiors record, no information disseminated by Interior to class members can be presumed 
reliable. As such, any decisions that Indian beneficiaries make on the basis of information from 
Interior likely will be less-than-fully informed, although the Indians have no way to know that. 
One of the rights the plaintiffs seek to vindicate in this litigation is the right of the Indian 
beneficiaries to a full and accurate accounting of the Indian trust, which is essentially the right to 
have complete and reliable information on which to base decisions affecting their interests in the 
trust. Thus, the plaintiffs insist, inducing the beneficiaries to make trust-related decisions before 
completion of the court-ordered accounting is tantamount to extinguishing their rights to that 
accounting. See Plaintiffs Motion [2746] to Require Defendants to Give Their Beneficiaries 
Notice of Defendants Continuing Inability or Refusal to Discharge Their Fiduciary Duties 
(Pls. Mot.), at 12. 
One response in Interiors opposition is quite general. Perhaps attempting to capitalize on 
the plaintiffs odd choice of title, Interior contends that Plaintiffs do not really seek to 
communicate with the class and give them a ... mid-litigation update on the status of the case and 
the right to consult with class counsel. Rather, ... Plaintiffs now seek to have the Court recognize 
a novel new trust dutythe duty to notify beneficiaries that a trustee has breached its trust duties 
.... Defendants Opposition [2755] to Pls. Mot. (Defs. Opp.), at 4. The Court of Appeals 
has held, Interior posits, that this Court may only enforce a particular common-law fiduciary duty 
against Interior if that duty has a statutory basis, see Cobell v. Norton, 392 F.3d 461, 47172 
(D.C. Cir. 2004), and neither this Court nor the Court of Appeals has yet declared that Interior 
19
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 20 of 34
 
has a statutorily-based obligation to disclose its breaches of fiduciary duty to trust beneficiaries. 
As the plaintiffs cite no statute that expressly or impliedly creates such a duty, Interior has 
persuasively refuted the title of the plaintiffs motion. But the motion itself, which only requests 
that class members be notified of the potential unreliability of Interiors trust-related 
communications, survives this argument quite well.7 
This Court has noted that [i]t is not the accounting in and of itself that is the desired 
product of this Courts enforcement of Interiors fiduciary obligations. Rather ... the Court 
intends that trust beneficiaries remain, after this litigation is completed, in a position in which the 
accounting that Interior must generate will be in some meaningful sense beneficial. Cobell, 225 
F.R.D. at 52. The court-ordered accounting is designed to promote class members rights to 
make fully informed choices about their trust assets. If there are no more informed decisions to 
be made, or if all the trust assets are gone, then the court-ordered accounting will be useless to 
the Indians.8 This is the core of the plaintiffs right to an accounting that supported the land-sales 
order, and that similarly supports additional Rule 23(d) relief when the Court identifies other 
7Interior further asserts that [t]he parties are vigorously disputing the nature of this Courts jurisdiction and 
authority to use the type of inherent equitable powers available to a chancellor in equity in the current appeals of 
the Phase 1.5 structural injunction and the IT preliminary injunction. Defs. Opp. at 6. It is unclear what Interior 
means to dispute with this argument. It is possible that this represents an additional argument against the strawman 
characterization of the plaintiffs requested relief just mentioned. If so, it is irrelevant. 
The argument is also irrelevant as an attack on this Courts authority under Rule 23(d) to impose todays 
new notice requirement, which authority flows from the fact that this case is a class action rather than from the 
Courts equitable powers. Indeed, the majority of the questions about the scope of this Courts equitable powers in 
this case have been resolved by the Court of Appeals in favor of expansive remedial authority. See generally Cobell 
v. Norton, 391 F.3d 251, 25758 (D.C. Cir. 2004); Cobell v. Norton, 392 F.3d 461, 46875 (D.C. Cir. 2004). 
Finally the notice set forth in todays order makes no mention of the few matters that remain disputed on appeal. 
8Of course, the only way to fully safeguard this right would be to suspend all trust-related decision-making 
until this case concludes and Interior actually provides the required accounting, so that the maximum number of 
decisions affecting trust assets could be as fully informed as possible. Unfortunately, such a course of action is 
impracticable. The inclusion of class-wide notice containing information about this litigation and contact 
information for plaintiffs counsel with each threatening communication from Interior will have to suffice as an 
interim measure. 
20
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 21 of 34
 
communications that violate the class communication order by threatening to interfere with the 
Indians right to fully informed trust-related decision-making. 
Interior does not dispute the factual predicates of the plaintiffs argument. Interior 
concedes that all trust-related information Interior communicates to Indian beneficiaries is 
inherently unreliable. Of course, anything other than a concession of this point would be 
laughable in light of the record in this case. The factual record, composed of the accumulated 
detritus of nine years spent examining Interiors odious performance as Trustee-Delegate for the 
Indian trust, is certainly clear enough and smattered with a sufficient number of specific abuses 
to satisfy the Gulf Oil standard for relief under Rule 23(d). If Interior cannot even ascertain the 
number of existing IIM account holders, how can any of its more complicated calculations, such 
as land appraisals, be trusted? If Interior is willing to deceive this Court, why would anyone 
think that Interior would hesitate to lie to the Indians? 
Interior also concedes that Indian beneficiaries make decisions that affect their trust assets 
in reliance on information from Interior. Together, these concessions entail the conclusion that 
communications from Interior threaten class members right to make fully informed decisions 
about their trust assets. Thus, all communications from Interior to class members containing 
information on which a class member might base a trust-related decision violate the class 
communication order for the same reason that land-sales-related communications were found to 
violate the class communication order. For this reason, the Court will again supplement the class 
communication order to require that henceforth every written communication from Interior to 
current and former IIM account holders must contain a notice designed to protect the rights of the 
class. The functional effect of the relief granted today is to eliminate the ordinary course of 
21
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 22 of 34
 
business exception from the class communications order. 
The Court will require that notice accompany all written communications from Interior to 
current or former IIM account-holders because Interior cannot determine which IIM accountholders 
are class members.9 The Court will not, however, require that notice accompany oral 
communications. Interior has previously used supposed restrictions on oral communications to 
the disadvantage of the Indian beneficiaries. See Cobell, 224 F.R.D. at 270 (noting that Interior 
closed down BIA offices and routed telephone calls to prerecorded messages in an effort to 
adhere to what Interior perceived to be the Courts restriction on land-sales-related oral 
communications); id. at 288 (clarifying that the land-sales order had never been applicable to 
oral communications, either in person or by telephone ... to prevent any further 
misinterpretations). 
Notice must accompany all written communications from Interior to current or former 
IIM account-holders without regard to subject matter. This requirement ensures maximum 
protection, as it is difficult to determine, ex ante, the kinds of information that might influence an 
Indian beneficiarys trust-related decisions. With so much at stake, the Court greatly prefers 
over-inclusion to under-inclusion. Furthermore, this requirement should make todays Order 
clear enough to forestall the kind of confusion and misadventure that held sway at Interior in the 
wake of the Courts land-sales order. And, relieving Interior of the undoubtedly complicated and 
time-consuming task of differentiating between kinds of communications also seems to 
9Again, the Court takes no position on the disputed issue of the scope of the plaintiff class. See Cobell, 224 
F.R.D. at 269 n.1; Mem. & Order, May 28, 2004, at 5. While Interior disputes the plaintiffs claim that many former 
IIM account holders are class members, it is nevertheless prudent, in the interest of full coverage, to send notice to 
anyone who might wind up in the plaintiff class after resolution of the legal disputes. 
22
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 23 of 34
 
significantly decrease the resource-burden imposed by todays notice requirement.10 
Burden and Cost of Providing Class-Wide Notice iv. 
The plaintiffs argue that Interior, rather than the plaintiffs, should bear the costsboth 
financial and logisticalof providing the required notice. See Pls. Mot. at 1220. Nefariously, 
this is the only argument in the plaintiffs motion that Interior genuinely attempts to take issue 
with. See Defs. Opp. at 11. Nevertheless, Interiors arguments are ultimately unconvincing, and 
the Court will require that Interior expend both the effort and the funds required to ensure that the 
notice approved in todays order goes out with all future communications from Interior to current 
or former IIM account holders. 
Generally, the plaintiff must bear the cost of notice to the class[.] Eisen v. Carlisle 
Jacquelin, 417 U.S. 156, 178 (1974). However, the Supreme Court has provided that where a 
defendant can perform one of the tasks necessary to send notice [to a plaintiff class], such as 
identification [of the class members], more efficiently than the representative plaintiff, the 
district court has discretion to order him to perform the task under rule 23(d). Oppenheimer 
10Interior contends that this requirement entails the absurd result in which the ... [n]otice would be attached 
to communications regarding health care, education, and other topics that are unrelated to the subject matter of this 
case. Defs. Opp. at 8 n.6. But this is not an argument at all. Interior does not claim, for example, that including 
the required notice in communications related to health care and education will make the notice requirement 
somehow unduly burdensome. Unless Interior feels that this Court should be in the business of avoiding absurdity as 
an evil in itself (in which case Interior should have long ago moved to strike the majority of its own pleadings from 
the record in this case), it is difficult to understand how any possible overbreadth in the notice requirement is not 
justified by the need to maximize protection of class rights. 
Additionally, it is not obvious that Interior is correct to characterize this result as absurd. Many class 
members depend on the IIM trust as their primary (or sole) source of income. Whenever these Indians spend money 
on prescription medications or school supplies, they do so because they think their IIM trust income is sufficient to 
allow for these expenditures. Or, if Indians decide to forego purchasing prescription drugs, notebook paper, and the 
like, it may be because their Interior-drafted account statement tells them they cannot afford these things. In either 
case, inaccuracies in Interiors trust-related information may relate directly to health care and education decisions. It 
is certainly inappropriate for Interior to declare, as a general matter, that health care and education ... are 
unrelated to the subject matter of this case. Indeed, for some Indians there may be no aspect of everyday life that is 
unrelated to the subject matter of this case. This observation throws into sharp relief not only the gravity of 
Interiors responsibilities as Trustee-Delegate, but also the inestimable cost of Interiors failure in that role. 
23
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 24 of 34
 
Fund, Inc. v. Sanders, 437 U.S. 340, 350 (1978). Where a district court orders a class-action 
defendant to perform a task necessary to distribute notice to the class, the court must exercise its 
discretion in deciding whether to leave the cost of complying with its order where it falls, on the 
defendant, or place it on the party who benefits, the representative plaintiff. Oppenheimer Fund, 
437 U.S. at 358. 
Interior claims that shifting the notice-related costs and burdens to a class-action 
defendant is warranted only if the notice is needed to protect class member rights. Defs. Opp. 
at 1011 (discussing the kinds of notices involved in cases cited in the plaintiffs motion: a 
notice designed to prevent erroneous deportation of class members; a mandatory opt-out notice; 
and a mandatory notice of dismissal). This is a throwaway argumentInteriors postulated rule 
is nowhere to be found in the Oppenheimer Fund case, which controls this issue and requires 
only that the district court adjudge it more efficient to shift the burden and expense of notice to 
the defendant. Indeed, had Interior bothered to address Oppenheimer Fund at all, it would have 
been clear that there is a distinction between the test for whether a court should require notice to 
the class under Rule 23(d) on the one hand and the standard governing the allocation of the 
burdens and costs of distributing that notice on the other. Only the former inquiry involves an 
evaluation of potential harm to class members rights.11 And, even under the defendants make- 
11Interior makes much the Ninth Circuits emphasis in the Barahona-Gomez case on the risk that class 
members might be erroneously deported in the absence of notice. See Defs. Op. at 1011 (citing Barahona-Gomez 
v. Reno, 167 F.3d 1228, 1236 (9th Cir. 1999)). But the Ninth Circuit made clear that the risk to class members 
justified the district courts imposition of a notice requirement. See Barahona-Gomez, 167 F.3d at 1236 (the 
district court did not err in requiring notice to the class [under Rule 23(d)]. ...The Court found that notice ... would 
prevent the irreparable harm of an erroneous deportation.). Distinctly, when reviewing the district courts decision 
to allocate to the defendant the cost and work associated with providing notice, the Barahona-Gomez Court focused 
on the burden to the government, noting that the required notice can easily be attached to an order denying a class 
members suspension application, and that the government made no presentation as to any additional costs 
associated with providing this notice. Id. at 1237. Thus, the Ninth Circuit distinguished the standards for requiring 
notice and allocating the costs of notice in the same manner suggested here. 
24
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 25 of 34
 
believe legal standard, shifting the burdens and costs of notice to Interior would be justified 
because the Court has concluded above that the notice approved today is, in fact, necessary to 
protect class member rights.12 
The Supreme Court provides guidance for allocating the work involved in sending notice, 
advising district courts to consider whether the defendant can perform some notice-related task 
with less difficulty or expense than could the representative plaintiff. Oppenheimer Fund, 437 
U.S. at 356. Here, including the required notice in mailings that Interior already planned to 
distribute to IIM account holders will be substantially more efficient than requiring the plaintiffs 
to send out the notices in a separate mass mailing. Interior has ready access to contact 
information for IIM account holders, so that for Interior, all that todays order really requires is 
the insertion of one additional piece of paper into regular mailings. Moreover, the principal 
purpose of the notice approved today is to warn the Indians about the potential unreliability of 
Interiors communications. Including the notices with the communications they reference 
reduces the potential for confusion and misinterpretation of the notice. The Court will, therefore, 
allocate to Interior the tasks of (1) preparing enough copies of the notice for one copy to be 
included in every written communication sent to a current or former IIM account-holder; and (2) 
attaching a copy of the notice to each such communication prior to distribution. 
12Because this section of Interiors opposition is ambiguous on its face, the Court allows that this may be a 
different argumentnamely, the argument that burden- and fee- shifting related to sending class notice is per-se 
inappropriate in class actions where, as here, the class is certified under Federal Rule of Civil Procedure 23(b)(2). 
The only plausible predicate for this argument is the observation that Rule 23(b)(2), unlike Rule 23(b)(3), does not 
mandate distribution of notice to the class. But this distinction does not affect the Courts discretion under Rule 
23(d). There is no salient difference between a case in which notice is required by the Federal Rules and one where 
notice is mandated by court order. Further, there is precedent for the applicability of Oppenheimer Funds 
explanation of a district courts Rule 23(d) authority to class actions certified under Rule 23(b)(2). See Barahona- 
Gomez, 167 F.3d at 123637 (applying Oppenheimer Fund to shift notice-related tasks to defendant in class action 
certified under Fed. R. Civ. P. 23(b)(2)). 
25
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 26 of 34
 
This allocation is consistent with Oppenheimer Fund. Discussing the considerations that 
should bear on a district courts distribution of the work involved in sending class notice, the 
Supreme Court noted that district courts ... have found it appropriate to order a defendant ... to 
perform tasks other than identification [of class members] that are necessary to the sending of 
notice. Oppenheimer Fund, 437 U.S. at 355. Implicitly endorsing this Courts approach, the 
Oppenheimer Fund Court cites with approval instances where defendants have been ordered to 
enclose class notices in their own periodic mailings to class members in order to reduce the 
expense of sending the notice. Id. at 355 n.22 (citing as examples Ste. Marie v. Eastern R. 
Assn., 72 F.R.D. 443, 450 n.2 (S.D.N.Y. 1976); Gates v. Dalton, 67 F.R.D. 621, 633 (E.D.N.Y. 
1975); Popkin v. Wheelabrator-Frye, Inc., 20 Fed. R. Serv. 2d 125, 130 (E.D.N.Y. 1975)). 
To determine which party should bear the monetary cost of sending notice to the class, 
the test should be whether the expense is substantial. Oppenheimer Fund, 437 U.S. at 359. If 
found to be substantial, the court should be considerably more ready to place the cost of the 
defendants performing an ordered task on the representative plaintiff, who derives the benefit[.] 
Id. at 358. The cost of performing a notice-related task allocated to the defendant may remain 
with the defendant, for example, where the expense involved [is] so insubstantial as not to 
warrant the effort required to calculate it and shift it to the representative plaintiff, or where the 
task ordered is one that the defendant must perform in any event in the ordinary course of its 
business. Id. at 359. 
Including the approved notice in its mailings to current or former IIM account holders 
falls squarely within the ordinary course of Interiors business. See Oppenheimer Fund, 437 U.S. 
at 359 n.28 (citing orders requiring defendants to include notice in periodic mailings as 
26
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 27 of 34
 
appropriate instances of shifting cost of task to defendants as part of ordinary course of 
business). But even the cost of an ordinary-course-of business task should be borne by the 
plaintiff if the expenses involved would be substantial. See id. Interior makes no argument 
that the cost of including notice in mailings to IIM account holders would be substantial, and the 
insertion of one additional sheet of paper into each mailing does not seem likely to generate 
appreciable expense.13 The Court thus concludes that Interior should expend the cost as well as 
the effort required to distribute the approved notice as provided in todays Order. 
v. 
Interior objects to much of the content of the plaintiffs proposed notice, which reads as 
follows:
13For example, adding one extra page to Interiors regular mailings is unlikely to increase the weight of 
those mailings enough to require additional postage. Indeed, by eschewing any requirement that Interior attempt to 
differentiate either among IIM account holders or types of communications when including the notice, the Court 
seems to have imposed the least costly procedure possible. 
Content of the Required Notice 
You are receiving this notice because as an individual Indian trust beneficiary, 
you may be a member of the plaintiff class in the Cobell v. Norton litigation. 
The Cobell v. Norton litigation was filed by Elouise Cobell and other named 
plaintiffs on June 10, 1996 in the U.S. District Court for the District of 
Columbia on behalf of all current and past beneficiaries of the Individual 
Indian Money (IIM) Trust (Cobell Class). This lawsuit is an action in 
equity to enforce the trust duties that the United States government owes to the 
Cobell Class. Named as defendants are the Interior Secretary, the Assistant 
Interior Secretary-Indian Affairs, and the Secretary of the Treasury who, in 
their official capacities, are trustee-delegates for the government in the 
management and administration of the IIM Trust (Trustee-Delegates). The 
Trustee-Delegates have admitted that they do not know whether the 
information that they are providing to you about your Trust assets is accurate 
and complete. In addition, they have been held in breach of fiduciary duties 
that the United States government owes the Cobell Class. As a result, the 
Trustee-Delegates have been ordered to provide the Cobell Class an accounting 
of their conduct and an accounting of all items of the IIM Trust since its 
inception. They also have been ordered to discharge their trust duties in 
27
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 28 of 34
 
accordance with all applicable statutory, treaty, and common law. 
A future trial is necessary, but is not yet scheduled, for the Court to assess the 
adequacy of the Trustee-Delegates accounting. Until such time as the Court 
has judged an accounting to be adequate and it has found that the Trustee- 
Delegates are discharging their fiduciary duties prudently and in accordance 
with law, the Court in Cobell v. Norton has determined that it is essential to 
ensure that communications by and between the government and the Cobell 
Class do not interfere with the class members right to an accurate and 
complete accounting or otherwise adversely affect their rights in this litigation. 
In that regard, the United States Court of Appeals has held that each individual 
Indian trust beneficiary has a right to an accurate and complete accounting and 
other relevant information regarding his or her trust assets. However, the 
government is currently unable to provide all individual Indian trust 
beneficiaries an accurate and complete accounting of their trust assets and is 
unable to provide a timetable for when that accounting will be rendered. A 
beneficiarys right to request and receive relevant information regarding their 
trust assets is not on hold pending the resolution of this litigation on the merits 
or the rendition of an adequate accounting. Any beneficiary may request that 
the government provide relevant information regarding their trust assets at 
reasonable intervals. 
Each class member also has a right to consult with class counsel regarding this 
notice or their rights as individual Indian trust beneficiaries. For further 
information you may access the Cobell Class website, www.indiantrust.com 
or contact the following counsel for the Cobell Class: Dennis M. Gingold, 
Esq., 607 14th Street, N.W., 9th Floor, Washington, DC 20005, phone: (202) 
824-1448, fax: (202) 318-2372, email: dennismgingold@aol.com, or Keith 
Harper, Esq., Native American Rights Fund, 1712 N Street, N.W., 
Washington, DC 20036-2976, phone: (202) 785-4166, fax: (202) 822-0068, 
email: harper@narf.org. 
Pls. Mot., Ex. 1 (Proposed Order), at 23 (footnote omitted). 
Interior correctly observes that the Court rejected similar language in the plaintiffs 
proposed land-sales notice, Defs. Opp. at 6, because several of the assertions in the plaintiffs 
proposed notice are disputed matters currently pending before the Court of Appeals. Cobell, 
224 F.R.D. at 280. While many of Interiors appellate issues have been resolved, see generally 
Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) (resolving appeal of preliminary injunction 
28
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 29 of 34
 
related to security of electronic trust data at Interior); Cobell v. Norton, 392 F.3d 461 (D.C. Cir. 
2004) (resolving the majority of Interiors issues related to the structural injunction issued after 
Trial 1.5), some matters related to the now-reissued structural injunction remain pending. See, 
e.g., Cobell, 357 F. Supp. 2d 298 (reissuing portion of structural injunction vacated but not 
addressed on the merits); Defendants Notice of Appeal [2869], filed Mar. 4, 2005 (informing the 
Court that Interior would appeal the reissuance of the structural injunction). As some of the 
statements in the plaintiffs proposed class-wide notice may be disputed on Interiors remaining 
appeals, the Court will edit the notice accordingly.14 
Interior next contends that Federal Rule of Civil Procedure 23(h)(1) requires that todays 
notice also contain information about the plaintiffs August 17, 2004 Petition for Interim Fees 
under the Equal Access to Justice Act (the interim fee petition). See Defs. Opp. at 12. Rule 
23(h)(1) requires that claims for an award of attorney fees and nontaxable costs must be made 
by motion under Rule 54(d)(2) and that [n]otice of [such] motion must be served on all parties 
and, for motions by class counsel, directed to class members in a reasonable manner. FED. R. 
CIV. P. 23(h)(1). Though the plaintiffs interim fee request was filed as a petition under the 
Equal Access to Justice Act rather than as a Rule 54(d)(2) motion, the Advisory Committee notes 
emphasize that Rule 23(h)(1) was intended to provide[] a format for all awards of attorney fees 
and nontaxable costs in connection with a class action[.] Notice to the class of all fee motions is 
required, the Advisory Committee explains, because [f]ee awards are a powerful influence on 
14Interior also vigorously dispute[s] ... any description which inaccurately states that the duties of the 
various Defendants are co-extensive. Defs. Opp. at 7 n.4. The Court need not attempt to determine whether the 
Defendants duties are in fact identical, as only Interiors duties are relevant to the central purpose of this notice. 
Indeed, there need be no specific enumeration of the defendants various fiduciary duties in the notice. It is enough 
for informational purposes that the notice name the defendants. 
29
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 30 of 34
 
the way attorneys initiate, develop, and conclude class actions, such that members of the class 
have an interest in the arrangements for payment of class counsel whether that payment comes 
from the class fund or is made directly by another party[.] 
The Rule 23(h)(1) notice requirement provides the class with sufficient information to 
question objectionable fee requests and to scrutinize any potential conflicts of interest that arise 
from certain payment scenarios, and these benefits do not vary with the procedural mechanism by 
which fees are sought. Rule 23(h)(1)s purpose thus dictates that class members must be notified 
of any fee request made by class counsel regardless of the provision of law authorizing the 
request, including the plaintiffs interim fee petition. However, Rule 23(h)(1) does not require 
the Court to include information about the interim fee petition in todays class-wide notice. To 
the contrary, the Rule requires only that the class be notified in a reasonable manner, leaving 
the Court with some latitude to determine the proper form and timing of notice. Information 
about the interim fee petition is beyond the scope of the limited informational aims of the notice 
ordered today, and not at all germane to its central purpose of advising class members of the 
unreliability of Interiors trust information. The Court thus concludes that including fee 
information in todays notice would be an unreasonable manner of notifying the class of the 
plaintiffs petition. The Court will, however, order that plaintiffs counsel submit to the Court a 
proposed notice to the class regarding the interim fee petition, as well as a proposal for 
distributing that notice to class members. 
Having resolved Interiors content-related objections, the Court also finds that the 
plaintiffs proposed notice is too long, contains overwrought language and sentence structure, 
and communicates unnecessary details. When paring down the plaintiffs proposed land-sales 
30
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 31 of 34
 
notice, the Court expressed its faith in the ability of plaintiffs counsel to provide all who 
inquire with additional information related to the details of this litigation; as well as with a full 
description of the rights of class members. Cobell, 224 F.R.D. at 208. The Court retains this 
faith today, and concludes that providing contact information for plaintiffs counsel in todays 
notice allows for omission of some detail. 
The Court will require that the following modified notice be included in all future written 
communications from Interior, its agents, representatives, employees, officials, or counsel to past 
or present IIM account holders: 
Please be aware that past and present Individual Indian Money (IIM) Trust 
account holders may be members of a class action lawsuit, Cobell v. Norton, 
No. 1:96CV01285 (D.D.C.) (Judge Lamberth). The defendants in this lawsuit, 
the Secretary of the United States Department of the Interior and the Secretary 
of the United States Department of the Treasury, are the federal governments 
Trustee-Delegates for the IIM Trust. The Court in the Cobell case has ruled 
that the Department of the Interior must provide each IIM Trust beneficiary 
with a complete and accurate accounting of his or her IIM Trust account. 
Because other related matters are not yet resolved, the Cobell case is still 
pending and the accounting has not yet been completed. 
While the Cobell case is ongoing, the Court has determined that it is essential 
to ensure that communications from the Department of the Interior do not 
adversely affect the rights of IIM Trust account holders who are also members 
of the Cobell lawsuit. For that reason, this notice is included with this 
communication for the information of current and former IIM Trust account 
holders. 
Evidence introduced in the Cobell case shows that any information related to 
the IIM Trust, IIM Trust lands, or other IIM Trust assets that current and 
former IIM Trust account holders receive from the Department of the Interior 
may be unreliable. Current and former IIM Trust account holders should keep 
in mind the questionable reliability of IIM Trust information received from the 
Department of the Interior if and when they use such information to make 
decisions affecting their IIM Trust assets. 
Current and former IIM account holders have the right to consult with the 
attorneys for the class in Cobell v. Norton regarding this notice or any other 
31
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 32 of 34
 
matter related to the IIM Trust. For further information you may access the 
Cobell class website, www.indiantrust.com or contact the following attorneys 
representing the Cobell class: Dennis M. Gingold, Esq., 607 14th Street, N.W., 
9th Floor, Washington, DC 20005, phone: (202) 824-1448, fax: (202) 318- 
2372, email: dennismgingold@aol.com, or Keith Harper, Esq., Native 
American Rights Fund, 1712 N Street, N.W., Washington, DC 20036-2976, 
phone: (202) 785-4166, fax: (202) 822-0068, email: harper@narf.org. 
15 
CONCLUSION 
While it is undeniable that Interior has failed as a Trustee-Delegate, it is nevertheless 
difficult to conjure plausible hypotheses to explain Interiors default. Perhaps Interiors past and 
present leaders have been evil people, deriving their pleasure from inflicting harm on societys 
most vulnerable. Interior may be consistently populated with apathetic people who just cannot 
muster the necessary energy or emotion to avoid complicity in the Departments grossly 
negligent administration of the Indian trust. Or maybe Interiors officials are cowardly people 
who dodge their responsibilities out of a childish fear of the magnitude of effort involved in 
reforming a degenerate system. Perhaps Interior as an institution is so badly broken that even the 
most well-intentioned initiatives are polluted and warped by the processes of implementation. 15 
This hypothesis may be the most plausible, as there is some evidence to substantiate it. In June, 2002, 
Interior filed with the Court a report generated by Interiors Office of Inspector General (OIG) following an 
investigation of seven specific issues relating to allegations that senior managers and attorneys of the Department of 
the Interior ... engaged in misconduct. See Notice [1355] of Filing the Office of Inspector Generals Report: 
Allegations Concerning Conduct of Department of the Interior Employees Involved in Various Aspects of the Cobell 
Litigation (OIG Rep.), June 25, 2002, exec. summ. at 1. This investigation was conducted during the pendency of 
the 2002 contempt trial mentioned above. In the course of investigating Interior, the OIG uncovered bad judgment, 
unfocused management, a myriad of definitional issues, and extreme hostility among the players and entities[,] and 
found factions with extremely myopic views of and approaches to the very complex issues at hand. OIG Rep., 
exec. summ. at 2. The OIG noted that in its decades of oversight of Interior, we have often observed ... a 
Department whose components are blinded by clouded judgment and crippled by distrust[,] id. at 6, characterized 
by a bunker mentality in which Interior employees generally begin by protecting [their] own Bureau or office, to 
the detriment of other Bureaus or offices if necessary; then protect the Department, and/or the institution or position 
it has advanced; [and] finally, protect the public interests .... Id. The OIG found that while Interiors various 
entities and employees are fueled by a multitude of motivations, many of which were well-intentioned[,] id. at 2, 
one of the least prevalent motivations was to protect and advance the interests of Individual Indian Trust account 
holders. Id. 
32
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 33 of 34
 
The government as a whole may be inherently incapable of serving as an adequate fiduciary 
because of some structural flaw. Perhaps the Indians were doomed the moment the first 
European set foot on American soil. Who can say? It may be that the opacity of the cause 
renders the Indian trust problem insoluble. 
On numerous occasions over the last nine years, the Court has wanted to simply wash its 
hands of Interior and its iniquities once and for all. The plaintiffs have invited the Court to 
declare that Interior has repudiated the Indian trust, appoint a receiver to liquidate the trust assets, 
and finally relieve the Indians of the heavy yoke of government stewardship. The Court may 
eventually do all these thingsbut not yet. Giving up on rehabilitating Interior would signal 
more than the downfall of a single administrative agency. It would constitute an announcement 
that negligence and incompetence in government are beyond judicial remedy, that bureaucratic 
recalcitrance has outpaced and rendered obsolete our vaunted system of checks and balances, and 
that people are simply at the mercy of governmental whim with no chance for salvation. The 
Court clings to a slim and quickly receding hope that future progress may vitiate the need for 
such a grim declaration. 
This hope is sustained in part by the fact that the Indians who brought this case found it in 
themselves to stand up, draw a line in the sand, and tell the government: Enough is enoughthis 
far and no further. Perhaps they regret having done so now, nine years later, beset on all sides by 
the costs of protracted litigation and the possibility that their efforts may ultimately prove futile; 
but still they continue. The notice requirement established by the Court today represents a 
significant victory for the plaintiffs. For the first time in the history of this case, the majority of 
Indian beneficiaries will be aware of the lawsuit, the plaintiffs efforts, and the danger involved 
33
Case 1:96-cv-01285-RCL Document 3076 Filed 07/12/2005 Page 34 of 34
 
in placing any further confidence in the Department of the Interior. Perhaps more importantly, 
the Indians will be advised that they may contact class counsel for guidance on their trust-related 
concerns. This likely will bring to light a wealth of new evidence concerning Interiors 
mismanagement of the trust; it will also open an avenue to relief for individuals throughout 
Indian country whose suffering might otherwise be buried forever in a bureaucratic tomb. 
Real justice for these Indians may still lie in the distant future; it may never come at all. 
This reality makes a statement about our society and our form of government that we should be 
unwilling to let stand. But perhaps the best that can be hoped for is that people never forget what 
the plaintiffs have done here, and that other marginalized people will learn about this case and 
follow the Indians example. 
A corresponding Order will issue today. 
Signed by Royce C. Lamberth, United States District Judge, July 12, 2005. 
34