IN THE UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
                                       )
ELOUISE PEPION COBELL, et aL,          )
                                       )    No. i:96CV01285 (RCL)
           Plaintiffs,                 )
      v.                               )
                                       )
GALE A. NORTON, Secretary of           )
the Interior, et !j,                   )
                                       )
           Defendants.                 )
___________________________________________________________________________)
     DEFENDANTS' RESPONSE TO PLAINTIFFS' NOTICE THAT INTERIOR
   DEFENDANTS CONTINUE TO RETALIATE AGAINST CARMEN PATRICIO
     On September 30, 2005, Plaintiffs filed their Notice that Interior Defendants Continue to
Retaliate Against Carmen Patricio ("Third Notice"). Although its title suggests the revelation of
recent events, Plaintiffs' Third Notice merely rehashes allegations that were already disputed by
Defendants several months ago. In addition, Plaintiffs use their Third Notice to misleadingly
assert that such allegations of retaliation are "undisputed fact," even though Defendants have
already disputed these allegations in filings with this Court.
     In their Third Notice, Plaintiffs mischaracterize as "undisputed fact" their allegations that
Elizabeth Siow, a realty officer with the BIA Papago Agency, "withheld Ms. Patricio's trust
check," and also "withheld [Ms. Patricio'sI appraisal." Third Notice at 2. However, Defendants
have already disputed these allegations through the Declaration of Nina Siquieros, filed with the
Court on December 14, 2004. See Declaration of Nina Siquieros, attached as Exhibit ito
Defendants' Notice Regarding Plaintiffs' Emergency Notice Regarding Ongoing Retaliation in
Violation of This Court's Orders, at !J 4-10 (detailing the manner in which Ms. Patricio's lease
payments were disbursed in the ordinary course of business and stating that such disbursement
was unrelated to any Court orders in this litigation); Id. at !J 1 1-20 (describing the processing of

Ms. Patricio's appraisal and stating the Papago agency did not retaliate against Ms. Patricio in
the handling of her appraisal). Similarly, Plaintiffs label as "undisputed fact[sI" their allegations
that Ms. Siow "lied to Ms. Patricio that this Court barred all communications with individual
Indian trust beneficiaries" and also that "for more than three months [Ms. Siowl led Ms. Patricio
to believe that defendants 'could not do anything with the land because of Cobell." Third
Notice at 2. Ms. Siow's declaration, filed with the Court back on April 1, 2005, rebuffed these
allegations as well. See Declaration of Elizabeth Siow, attached to Defendants' Notice
Regarding Plaintiffs' Notice of Further Retaliatory Actions Taken Against Individual Indian
Trust Beneficiaries ("Siow Declaration"), at  3 (Ms. Siow explained to Ms. Patricio that she
could either lease or partition her allotment); Id. at  5 (Ms. Siow explained to Ms. Patricio "on
several occasions" that "she must sign either a Notice and Waiver or a Confirmation of
Consultation."); jj at  7 (Ms. Siow states "I have not retaliated against Ms. Patricio. I believe
that this was a misunderstanding, which I am hopeful was resolved at our meeting with her on
March 18, 2005."). Thus, the facts on which Plaintiffs seek to rely to claim retaliation are
anything but "undisputed," and labeling them so misrepresents the record.
     Plaintiffs' personal attacks on Interior employees continue in their Third Notice as well.
They accuse Ms. Siow of perjury and accuse her of maliciously attempting to "trick" Ms.
Patricio into waiving her right to consult with counsel during their telephone conversations.1
Third Notice at 3. That allegation was already rebuffed by Ms. Siow's declaration, which states,
  "I explained to Ms. Patricio on several occasions, that before our office may proceed with a
1 Plaintiffs again resurrect their long failed "defective jurat" argument and simply ignore
controlling precedent of the D.C. Circuit - in this case - rejecting that argument. Compare
Plaintiffs' Notice at 2 with Cobell v. Norton, 391 F.3d 251, 260-6 1 (D.C. Cir. 2004).
                                2

land transaction, she must sign either a Notice and Waiver or a Confirmation of Consultation."2
Siow Declaration at  5. In fact, when Interior employees met with Ms. Patricio on March 18,
2005, Ms. Patricio decided to execute a Confirmation of Consultation form, indicating that she
had consulted with counsel concerning her land transaction.3 Siow Declaration at  6. In any
event, this argument is a red herring. The Court's October 22, 2004 Order explicitly excepts oral
communications from the Waiver and Confirmation of Consultation form process and Ms.
Siow's communications with Ms. Patricio were telephone conversations. Cobell v. Norton, 224,
F.R.D. 266, 281 (D.D.C. 2004).
     Finally, Plaintiffs allege that Ms. Siow retaliated against Ms. Patricio by allegedly giving
her incorrect advice, which prevented her from leasing her land. Third Notice at 3-4. In fact,
Ms. Siow stated in her April 1, 2005 declaration that she believed there had been a
misunderstanding that she was hopeful was resolved by the March 18, 2005 meeting. Siow
Declaration at  7. Indeed, as Plaintiffs acknowledge, Interior employees met with Ms. Patricio
on March 18, 2005, to provide her additional assistance in this matter. Id. at  6; Third Notice at
2 Counsel for Defendants also provided both forms to Plaintiffs' counsel by mail to forward to
Ms. Patricio. ! Letter from Timothy B. Curley, Trial Attorney, Department of Justice to
Dennis M. Gingold, dated March 2, 2005, attached to Defendants' Notice Regarding Plaintiffs'
Notice of Further Retaliatory Actions Taken Against Individual Indian Trust Beneficiaries (filed
April 1, 2005).
 Although Plaintiffs argue that Ms. Patricio was not aware of her right to consult with counsel
prior to March 18, 2005, Plaintiffs' counsel filed Notices on Ms. Patricio's behalf in November
2004 and in February 2005, that attached Ms. Patricio's affidavits on this subject, as well as an
affidavit from Geoffrey Rempel that revealed Plaintiffs' counsel's office had been conferring
with Ms. Patricio on this matter since at least October 2004. See, e.g., Emergency Notice
Regarding Ongoing Retaliation in Violation of This Court's Orders (filed Nov. 15, 2004)
(attaching affidavits by Carmen Patricio and Geoffrey Rempel); Plaintiffs' Notice of Further
Retaliatory Actions Taken Against Individual Indian Trust Beneficiaries (filed Feb. 24, 2005)
(attaching an affidavit by Carmen Patricio).
                                3

4. Regardless of what Ms. Patricio understood as a result of her telephone conversations with
Ms. Siow and the March 18, 2005 meeting, those efforts to assist Ms. Patricio hardly establish a
case of retaliation. Plaintiffs present no evidence demonstrating that Ms. Siow retaliated against
Ms. Patricio.
Dated: October 17, 2005              Respectfully submitted,
                                     ROBERT D. McCALLUM, Jr.
                                     Associate Attorney General
                                     PETER D. KEISLER
                                     Assistant Attorney General
                                     STUART E. SCHIFFER
                                     Deputy Assistant Attorney General
                                     J. CHRISTOPHER KOHN
                                     Dir ector
                                     /s/ Robert E. Kirschman, Jr.
                                     ROBERT E. KIRSCHMAN, Jr.
                                     (D.C. Bar No. 406635)
                                     Assistant Director
                                     Commercial Litigation Branch
                                     Civil Division
                                     Mailing Address:
                                     P.O. Box 875
                                     Ben Franklin Station
                                     Washington, D.C. 20044-0875
                                     Phone (202) 307-3242
                                     Fax(202) 514-9163
                                       4

                      CERTIFICATE OF SERVICE
     I hereby certif!y that, on October 17, 2005 the foregoing Defendants 'Response to
Plaint!ffs 'Notice That Interior Defendants Continue to Retaliate Against Carmen Patricio was
served by Electronic Case Filing, and on the following who is not registered for Electronic Case
Filing, by facsimile:
                         Earl Old Person (Pro se)
                         Blackfeet Tribe
                         P.O. Box 850
                         Browning, MT 59417
                         Fax (406) 338-7530
                                   Kevin P. Kingston
                                   Kevin P. Kingston