IN THE UNITED STATES DISTRICT COURT
                                                   FOR THE DISTRICT OF COLUMBIA

                   ELOUISE PEPION COBELL, et al_.._,                  )
                                                                                )
                                                                                                   ?2                  :.." ....
                                      Plaintiffs,                                         )                                  :..:.
                                                                                                                     i_          ...
                                                                                                  7,';        !.
                                      v.                                                  )        CaseNo. l:96CV01285f!':   !'::5    .'
                                                                                )       (Judge Lamberth)   '''_:I'__2_}'_--i.:   :._.'    .:..
                   GALE A. NORTON, Secretary of the Interior, et al.,)                                                 ..
                                                                                                                   _'-: )        ......
                                      Defendants.                                      )                                 -_     ...._:.:'
                                                                                                                   dD.                  '; ' '.
                                                                                                                                                               _' _
                                                                                                                                                                                                                                                                              :Z.T-        Z.'j '

                                             DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT THAT INTERiOR'S
                       HISTORiCAL ACCOUNTING PLAN COMPORTS WITH THEIR OBLIGATION TO
                                            PERFORM AN ACCOUNTING AND SUPPORTING                                  j
                                            MEMORANDUM OF POINTS AND AUTHORITIES
                                                                                                                                                  .!
                           The Secretary of the Interior, the Assistant Secretary of the Interior - Indian Affairs ("Interior
                  Defendants" or "Interior") and the Secretary of the Treasury (collectively "Defendants"), move for
                  partial summary judgment pursuant to Federal Rule of Civil Procedure 56(b) and Local Civil Rule
                  7.1 (h) that Interior Defendants' Historical Accou...n..ting Plan for Individual...indian Money Accounts
                  ("Historical Accounting Plan" or "Plan"), filed January 6, 2003, comports with their obligation to
                  perform an accounting.
                           As argued in Interior Defendants' appeal from, inter alia, the Court's September 17, 2002
                  Order holding them in civil contempt, Defendants are, respectfully, of the view that the Court lacks
                  the authority to undertake a Phase 1.5 trial for the purpose of reviewing Interior Defendants'
                  Historical Accounting and Trust Management Plans (whether or not in conj unction with Plaintiffs'
                 plans) and thereupon entering hljunctive relief dictating how they must comply with their obligation

                         t Pursuant to LCvR 7.1 (h), Defendants have filed herewith their Statement of Material
               Facts As To Which No Genuine Issue Exists.

                     to account to individual Indian money ("IiM") account holders. See Brief for the Appellants (filed
                   Dec. 6, 2002). In Defendants' view, such a trial, held for the purpose of entering the contemplated
                   injunctive relief, would exceed structural and statutory limits on the judicial authority by specifying
                   how Executive-Branch agencies must fulfill their legal obligations, rather than simply requiring them
                   to do so. See id. at 29-33. 2 However, as argued below, if the Court holds the Phase 1.5 trial and
                   proceeds to review Interior Defendants' Historical Accounting Plan, it should rule that Defendants are
                   "entitled to... judgment as a matter of law," Fed. R. Civ. P. 56(c), that Interior Defendants' Plan
                  comports with their obligation to perform an accounting for IbM funds.
                           As the D.C. Circuit indicated in its 2001 ruling in this litigation, final agency action will occur
                  - and thus may be reviewed by this Court - when the accountings for individual IIM account holders
                                                                                                                                                  i
                  are completed. See Cobell v. Norton, 240 F.3d 1081, i 110 (D.C. Cir. 200t) ("Presumably, the
                  district court plans to wait until a proper accounting can be performed, at which point it will assess
                  appellants' compliance with their fiduciary obligations."). The final agency action is not the plan for
                  conducting an accounting, but the end product - the statement of account, which will be reviewable
                  when any applicable administrative remedies are exhausted. Until that time, the D.C. Circuit stated

                         z See also Merrick B. Garland, Deregulation and Ju..djcial Review, 98 Harv. L. Rev. 505,
                564-65 (1985) (stating that "because the essence of the executive function is the exercise of
                discretion, a court transgresses the separation of powers when it dictates that an agency take one
                particular action instead of others within its discretionary prerogative," but that "when a court
                merely orders an agency to act, leaving the choice of action to the agency's discretion, no
                trespass occurs"); Catherine Zaller, Note, .T.h.e Case for Strict Statutory...Construction of
                Mandatory Agency Deadlines Under S_ction 706(1), 42 Wm. & Mary L. Rev. t545, 1548 (2001)
                (observing that the Senate Judiciary Committee report of May I945 on a draft version of the
                Administrative Procedure Act ("APA"), 5 U.S.C.  _ 551 et seq., "noted that the authority granted
                to the judiciary under the [APA's] judicial review clause did not allow the courts to strip
                agencies of discretion in determining how an agency should carry out legislation[;]... [r]ather,
                the Senate simply wanted the court to direct the agency to act without dictating what process the
                agency should use" (internal citations omitted)).
                                                                            2

                     that this Court may have jurisdiction to determine whether "in preparing to do an accounting the
                   Department takes steps so defective that they would necessarily delay rather than accelerate the
                   ultimate provision of an adequate accounting." Id.
                            As demonstrated below, interior Defendants' Historical Accounting Plan comports fully with
                   their obligation to perform an accounting and with the Court's September 17, 2002 Order. in no
                   sense does Interior Defendants' Plan describe or contemplate steps that would delay rather than
                   accelerate the provision of the required accounting. In sharp contrast, Plaintiffs' January 6, 2003
                   submission is not a plan for conducting an historical accounting, but rather is a claim for money
                   damages premised on an assertion that the accounting they seek is impossible. As such, Plaintiffs'
                                                                                                                                                  J
                             submission fails in all respects to comply with the Court's September 17, 2002 Order.
                                                                                                                                                  ]
                   I.      Interior Defendants' Historical Accounting Plan Comports Fully With Their Obligation
                           To Perform An Accounting Of IIM Funds.
                           As this Court has recognized, the Plaintiffs in this action "seek to enforce their statutory right
                  to an accounting as that phrase is meant under the provisions of 25 U.S.C.  162a(d)(t)-(7) and 25
                  U.S.C.  4011." Cobell v. Babbitt, 9t F. Supp. 2d 1, 27 (D.D.C. 1999). The obligation to provide an
                  "historical" accounting, according to this Court and the D.C. Circuit, is found in Section 102 of the
                  American Indian Trust Fund Management Reform Act of 1994 ("1994 Act") (codified as 25 U.S.C. 
                  4011). See 91 F. Supp. 2d at 40-41; Cobell v. Norton, 240 F.3d at 1102. Interior Defendants'
                  Historical Accounting Plan describes an effort, already underway, that will bring Interior Defendants
                  into compliance with their obligation to provide an historical accounting for "all funds held in trust by
                  the United States for the benefit of... an individual Indian which are deposited or invested pursuant
                 to the Act of June 24, 1938." American Indian Trust Fund Management Reform Act of 1994, Pub. L.
                 No. 103-412,  102(a), 108 stat. 4239, 4240, codifiedat 25 U.S.C.  40t l(a). When the historical

                     accounting work described in the Plan is complete, account holders will possess the best available
                   information about the historical activity in their accounts, the accuracy of the account activity
                   recorded historically in the IIM trust fund system, and the reliability of the IbM trust fund system as a
                   whole, and Defendants will have a sound basis for meeting their accounting obligations in the future.
                   The historical accounting work described in the Plan stands a realistic chance of being funded by
                   Congress, and, assuming adequate funding levels, will be completed in a reasonable period of time.
                            It is important to note, however, that Interior Defendants' Plan does not address certain
                   questions about the enforceability of Plaintiffs' claims, although they may affect the scope of the
                   accounting. Instead, Defendants determined that such questions were more properly addressed in
                   motions for summary judgment. In particular, they decided to address the effect of the statute of
                                                                                                                                                  i
                                                                                                                                                  l

                                                                                                                                                                                                                        limitation and laches in a separate motion, 3 see Defendants' Memorandum Of Points And Authorities
                  In Support Of Motion For Partial Summary Judgment Regarding Statute Of Limitations And Laches
                  ("Defendants' Motion Regarding Statute Of Limitations") (Jan. 31, 2003) (filed under seal), because
                  this Court held that it would rule at a later date "whether an applicable statute of limitations, if any,
                  precludes any of plaintiffs' claims for an accounting."  Cobell, 91 F. Supp. 2d at 32 n.22. Likewise,
                  the D.C. Circuit also recognized that the effect of'the statute of limitations is an open question for this
                  Court to decide. See Cobelt, 240 F.3d at 1110 ("The district court also identified 'significant legal
                  issues' to be resolved in the second phase [of the litigation], such as whether relevant statutes of
                  limitations preclude some ofplaintiffs' claims .... "). The scope of the historical accounting
                  described in Interior Defendants' Historical Accounting Plan is necessarily limited to the extent the

                           Interior Defendants noted in their Plan that they "intend[ed] to present legal issues that
                might affect the scope o f the historical accounting to the Court by way of summary judgment
                motions." Interior Defendants' Plan at Ii-2 n.7. Defendants ' Motion Regarding Statute Of
                Limitations is such a summary judgment motion.
                                                                            4

                     statute of limitations bars any of Plaintiffs' accounting claims, tn particular, as argued in Defendants'
                   Motion Regarding Statute Of Limitations, if the Court applies the statute of limitations, in
                   conjunction with an applicable tolling provision, it would preclude all claims based on failures to
                   account for transactions in IiM accounts prior to October 1, 1984. Interior Defendants' Historical
                   Accounting Plan, addressed in this motion, sets forth a plan for accounting for transactions from the
                   inception of an IIM account or June 24, 1938, whichever is later, to December 31, 2000. 4 However,
                   should the Court grant Defendants' Motion Regarding Statute Of Limitations, Interior Defendants
                   will account for ail transactions in the IlM accounts fi.om the inception of an account or October i,
                   1984, whichever is later.
                                                                                                                                                  1
                                 The 1994 Act requires Interior to "account for the daily and annual balance of all funds held in
                                                                                                                                                  l
                       trust by the United States for the benefit of... an individual Indian which are deposited or invested
                  pursuant to the Act of June 24, 1938." 25 U.S.C.  401 l(a). On December 21, 1999, this Court
                  entered a judgrnent declaring that the 1994 Act "requires defendants to provide plaintiffs an accurate
                  accounting of all money in the IIM trust held in trust for the benefit of plainti frs, without regard to
                  when the funds were deposited." Cobell, 91 F. Supp. 2d at 58. The Court of Appeals affirmed most
                  aspects of this Court's ruling, and stated that '"[a]ll funds' [in Section 401 l(a)] means all funds,
                  irrespective of when they were deposited (or at least so long as they were deposited after the Act of
                  June 24, 1938)." Cobell, 240 F.3d at 1102 (emphasis in original). The Court of Appeals questioned
                  how Interior could determine accurate current balances without "first reconciling the accounts, taking

                         4 Interior Defendants will close the "historical" accounting period on December 31, 2000
                because by that date the relevant Interior offices were fully converted to the Trust Funds
                Accounting System. Interior Defendants' Plan at II-4. Account information recorded after
                December 3I, 2000, will be considered current accounting activity. Id__,.
                                                                            5

                     into account past deposits, withdrawals, and accruals." Id__.:.  In a footnote in its September 17, 2002
                   contempt ruling, this Court again clarified the nature of Interior Defendants' accounting duty:
                            It is important to note that there is no difference between a "historical accounting" and
                            an "accounting."... Any accounting of funds necessarily involves examining past
                            transactions and events that could [affect] the current balance. In this opinion, the
                            Court has predominantly used the term historical accounting to emphasize that the
                            Interior Department must take past transactions into consideration to ensure that the
                            current balances in the IIM trust accounts are accurate.
                   Cobell v.....Norton, 226 F. Supp. 2d 1, 116 n.135 (D.D.C. 2002).
                            Interior Defendants' Historical Accounting Plan describes an accounting that comports fully
                   with - and perhaps exceeds - the requirements of the 1994 Act. Arguably, Interior Defendants'
                   historical accounting obligation would be satisfied by providing account holders with a transaction             .
                                                                                                                                                   {
                   history of"past deposits, withdrawals, and accruals," CobelI...v. Norton, 240 F.3d at 1102, and                  1

                  determining whether the current balance is correct in light of the account history. The effort
                  described in Interior Defendants' Plan goes further. Interior Defendants are taking significant steps to
                  assess the accuracy of the account histories by reviewing supporting documentation. Moreover,
                  Interior Defendants intend to perform numerous high-level system tests to assess the historical
                  reliability of the IIM trust fund system as a whole. Although not necessarily required by the 1994
                  Act, Interior believes these are prudent steps that will provide IlM account holders with the best
                  available information about their accounts.
                           Thus, the goal of the historical accounting effort as described in the Plan is to provide each
                  eligible IIM account holder, as soon as is practicable, with an account transaction history ax well as a
                  reliable assessment regarding its accuracy. See Historical Accounting Plan at I[i-1. The Plan
                  describes an appropriate method for accomplishing this goal, which will entail collecting relevant and
                 available trust records and using those records to verify the accuracy of the account activity recorded

                     in electronic and paper account ledgers. The Court of Appeals, noting that this Court "explicitly left
                   open the choice of how the accounting would be conducted, and whether certain accounting methods,
                   such as statistical sampling or something else, would be appropriate," confirmed that "[s]uch
                   decisions are properly left in the hands of administrative agencies." Cobell v. Norton, 240 F.3d at
                   I104.
                           Contrary to the reckless allegations of the Plaintiffs that an accounting is impossible because'
                   relevant records are unavailable, the experience of Interior Defendants and their consultants,
                   including their experience with the Named Plaintiffs' records, indicates that sufficient records are
                  available to conduct the historical accounting work. Se__9.e Declaration of Robert L. Brunner (Jan. 30,
                                                                                                                                                  i
                                                                                                                                                                                                                                        !
                  2003) (Ex. 1) _1 12 (Although "not all records exist, and some gaps exist in the information available,"        !
                  "[m] assive amounts of paper and electronic records exist which relate directly to the transactions in
                  the IiM accounts."); id....__, at '_I 13 ("There are sufficient electronic and paper records to expect that the
                  overall approach proposed by Interior is feasible and will provide IIM beneficiaries with an accurate
                  statement of account,"); Declaration of Edward Angel (Jan. 30, 2003) (Ex. 2)  I7 ("Professional
                  historians are rarely fortunate enough to have a complete historical record for any topic of research..
                  .. My twenty years of professional research experience with Federal records relating to Native
                  Americans leads me to support the implementation of the plan developed by OHTA to perform an
                  historical trust accounting as an approach that is based upon solid historical methodology, along with
                  historical research that is supported by skilled forensic procedures and accounting tools.");
                  Declaration of Alan Newell (Jan. 29, 2003) (Ex. 3)  7 ("A vast quantity of federal documents (from
                  the Bureau of Indian Affairs as well as from other agencies) is available in national and regional
                 repositories for use in performing a historical accounting of Individual Indian Money. To dismiss
                 categorically these documents as incomplete, inaccurate and therefore of little or no value would be a
                                                                            7

                     mistake."); id. at  10 ("Based on almost 30 years as a professional historian working in federal
                   Indian records, the volume of relevant data that can be der/red from historic federal documents
                   supports the Department of the Interior's implementation of a plan to perform a historical accounting
                   oflIM funds.").
                            Interior Defendants acknowledge in the Plan, as they have in the past, that they wilt encounter
                   gaps in transaction histories or supporting records as they proceed with the historical accounting
                   work. However, Interior Defendants' Plan neither expects nor requires that all documents be found,
                   .see Declaration of Robert L. Brunner (Ex. 1) '_T 13, and Interior has developed adaptive strategies to
                   take into account record deficiencies, see id.; Historical Accounting Plan at IIi-13.5 The Plan states
                  that where supporting documentation is not located for a particular transaction, the lack of
                  information will be reported in the account transaction history. Id. at III-14.
                           The IIM trust fund contains two distinct types of individual accounts: 6 (1) Judgment and Per
                  Capita Accounts, which are established to receive funds from tribal distributions of litigation
                  settlements and tribal revenues, respectively; and (2) Land-based Accounts, which are established to
                  receive revenues derived from interests in allotted lands. See Historical Accounting Plan at llIil.

                         5 Interior Defendants' previous work regarding tribal trust funds also reveals the existence
                of government records related to trust fund matters, tn the early 1990s, Interior Defendants
                initiated a project to reconcile tribal trust fund activity occurring over about a twenty-year period.
                By 1996, the General Accounting Office ("GAO") reported that Interior's effort had verified over
                218,000 non-investment tribal transactions totaling $I5.3 billion...S..ee Financial Management,
                BIA's Tribal Trust Fund Account Reconciliation Results, General Accounting Office Report No.
                AIMD-96-63, at 4 & 16 (May 1996) (Ex. 4). Though documents were not located for all the
                tribal transactions recorded in the ledger, GAO indicated that the Bureau of Indian Affairs
                ("BIA") had identified about 20,000 boxes of accounting documents and lease records_ Id. at 4.
                Thus, the volume of records located for the tribal reconciliation project suggests that Plaintiff_'
                assertion that there has been wholesale loss or destruction of trust records cannot be sustained.
                        6 The IbM trust fund also contains administrative accounts, discussed infra.
                                                                            8

                     After analyzing the characteristics of these account types, Interior Defendants determined that
                   tailoring an accounting methodology for each account type was preferable to developing a single,
                   uniform methodology.
                            Interior Defendants determined that the most appropriate approach for assessing the accuracy
                   of transaction histories for Judgment and Per Capita accounts is to examine and reconcile 7 each
                   transaction in each account. Id_.__. at II1-2 - III-4. Because, for a particular judgment or per capita
                   award, nearly ail of the affected IIM accounts have identical opening balances (and, therefore, interest
                   transactions), a transaction-by-transaction reconciliation approach for these accounts is relatively
                   efficient, and sampling techniques are not particularly useful where the population of transactions is
                                                                                                                                                  t
                   largely homogeneous. Id____. at Ill-3. Interior Defendants have already reconciled 14,235 Judgment              i
                   Accounts with balances of approximately $40 million using this transaction-by-transaction
                   methodology. Id_._:.
                           For Land-based Accounts, Interior considered a variety of methodologies, from reconciling
                  each transaction in each account to employing various statistical sampling techniques. Id_._:. at III-5 -
                  1II-6. As noted in Interior Defendants' Plan, proven and reliable mathematical theories support
                  sampling methodologies that can predict how large a sample must be to achieve a desired level of
                  accuracy. See id. at III-7. In light of the tremendous time and cost associated with an effort to
                  reconcile each transaction in each account, s and concern expressed by members of Congress 9 about

                         * The Historical Accounting Plan uses the term "reconciliation" to describe a process by
                which original financial documents and related records will be examined to determine whether a
                transaction recorded in an IIM account reflects accurately a proper allocation of col Iection,
                interest, or disbursement of funds. See Historical Accounting Plan at I-1, II1-l.
                         * tn its Report to Congress on the Historical Accounting of Individual Indian Money
                Accounts (flied July 3, 2002), Interior estimated that an accounting utilizing transaction-by-
                transaction reconciliation methods for all IIM accounts would cost approximately $2.4 billion
                                                                            9

                     the length of time and level of funding required, Interior investigated alternative approaches that
                   would more efficiently utilize available resources without compromising the accuracy of the results.
                   .S..ee id...=, at III-6 - 1II-7.
                            Interior Defendants concluded that the most reasonable method for assessing the accuracyof
                   transaction histories for Land-based Accounts combines transaction-by-transaction and statistical

                 and require approximately ten years to complete.
                          9 For example, in a letter to the Secretary, the Chairman of the House Committee on
                 Resources stated:
                          We are sure.., that the Department recognizes that Congress will necessarily                             Ii
                          determine the funding for any accounting, and we find the [Report to Congress on                        i
                          the Historical Accounting of Individual Indian Money Accounts] troubling in
                          several areas .... Given the length of time required to complete the broad
                          accounting outlined in the Report, as well as the costs associated with such an
                          activity, which are likely to come at the expense of other key Indian programs, we
                          request that you promptly consider ways to reduce the costs and the length of time
                         necessary for an accounting .... The Committee asks that before committing
                          significant resources to the broad approach described in the Report, the
                         Department consider all available options regarding the use of alternative
                         accounting methods.
                 Letter from James V. Hansen, Chairman, U.S. House of Representatives Committee on
                 Resources, to Gale Norton, Secretary of the Interior 1 (Dec. 9, 2002) (Ex. 5). Similarly, the
                 Chairman and the Ranking Minority Member of the Subcommittee on Interior and Related
                 Agencies of the House Committee on Appropriations stated in a letter to the Secretary:
                         iT]he Committee remains very concerned over the effect the Cobell v. Norton
                         litigation is having on the Department's ability to marshal the resources that are
                         needed for trust reform to be successful. We are particularly concerned about the
                         Department's plan to allocate over $2.4 billion over ten years for an historical
                         accounting. We remain convinced that such a process would not yield the desired
                         results, but instead would simply drain resources away from effectively
                         implementing trust reform.
                Letter from Joe Skeen, Chairman, and Norman D. Dicks, Ranking Minority Member, U.S. House
                of Representatives, Committee on Appropriations, Subcommittee on Interior and Related
                Agencies, to Gale Norton, Secretary of the Interior l (Dec. I0, 2002) (Ex. 6).
                                                                            10

                     sampling techniques. Thus, Interior intends to reconcile each high-dollar transaction in such accounts
                   and reconcile a statistically valid sample of the smaller transactions. The reconciliation process for
                   land-based collection transactions entails tracing the transaction back to the original revenue source,
                   usually a lease or contract. Id.___. at Ili-9. The lease or contract is examined to identify the allotment(s)
                   related to the payment. Id.._. The ownership interests in the allotment are used to verify that the
                   revenue was correctly divided and properly allocated to the relevant tIM account. Id__. The
                   reconciliation process for land-based disbursement transactions entails examining, for example, a
                   request from the ILM account holder for funds in the account, the record verifying the issuance ora
                   check and, where available, information confirming the check was paid. Id...__.
                                                                                                                                                   f
                            For transactions in the "Electronic Records Era" (approximately 1985 to December 31, 2000),         .I
                   Interior Defendants intend individually to examine and reconcile each of the approximately 73,500
                   transactions of $5,000 or more (which collectively represent 45 percent of the dollar throughput in the
                   Electronic Records Era), and examine and reconcile two statistically valid samples taken from the
                   approximately 26 million lower-dollar transactions - one sample of approximately 80,000 transactions
                   in the $500 to $4,999.99 range, and a second sample of approximately 80,000 transactions in the
                  $0.01 to $499.99 range. See id. at _-7 - Iii-8 & App. D.  Because electronic transaction histories are
                  already available for Electronic Records Era transactions, this work can begin now. In contrast,
                  transaction records from the "Paper Records Era" (prior to 1985) are in books, on cards, or on other
                  paper media. Id...._:. at Ili-5. These records must be located, scanned, coded and digitized to create
                  electronic transaction histories before the accuracy of the account activity can be assessed. Id. When
                  these transaction histories are available in electronic form, Interior Defendants intend to design a
                  similar sampling methodology for Paper Records Era transactions. Id_. at III-13.

                                                                            I1

                               in addition to describing the historical accounting work for individual IIM accounts, the
                   Historical Accounting Plan describes the work underway to distribute properly the funds currently
                   held in Special Deposit Accounts, which are temporary administrative accounts for the deposit of
                   funds that cannot be immediately credited to the proper IIM account holder or other owner of the
                   funds. See id. at 111-15. The Plan acknowledges that funds held in Special Deposit Accounts have
                   not always been distributed in a timely manner and that distributions from these accounts have not
                   aIways included the interest earned while the funds were in these accounts. Id.__. at III-15. As of
                   December 31, 2000, approximately 21,500 Special Deposit Accounts were inactive, but still
                   contained nearly $68 million. Id.._: at III-16. To date, Interior Defendants have identified the proper
                   owners of approximately one-third of the money held in these inactive accounts. Id._..:                             !
                                                                                                                                                  i
                           The Historical Accounting Plan also includes several high-level system tests designed to
                  assess the reliability of the IIM trust fund system as a whole. These tests will reveal whether data
                  gaps exist; whether account balances were properly transferred during system conversions from paper
                  to electronic records and between electronic systems; whether interest was properly calculated;
                  whether problems with the posting of transactions to the IIM system exist; and whether ownership
                  records are accurate, id___: at III-17 - Ili-20.
                           Planning the historical accounting effort required interior Defendants to make determinations
                  regarding the scope of the accounting required by the 1994 Act as well as determinations regarding
                  the methodology to be employed in conducting the accounting work. That each of the determinations
                  regarding the scope and methodology of the accounting is proper and consistent with Interior
                 Defendants' legal obligations is demonstrated below.

                                                                           12

                               A.      Interior Defendants' Plan Describes An Accounting for All Funds Held In Trust
                                     By The United States For The Benefit Of An Individual Indian Which Are
                                     Deposited Or Invested Pursuant To The Act Of June 24, 1938.
                            Interior Defendants' Plan comports fully with the unambiguous language of the 1994 Act,
                   which requires an accounting of"all funds held in trust by the United States for the benefit of... an
                   individual Indian which are deposited or invested PUrsua.n..t..to the Act of June 2_4_, 1938." 25 U.S.C. 
                   40l l(a) (emphasis added). The scope of the accounting described in the Plan is consistent with the
                   scope of the accounting prescribed by the statute.
                           First, it is plain that the accounting required by statute is an accounting of "funds" rather than
                   "assets." Nonetheless, the Historical Accounting Plan states that, at the end of the historical
                   accounting process, Interior Defendants "intend[] to be in the position to provide the IIM account
                  holder with information regarding their land assets as of December 31, 2000... [and] [i]n the future,
                  Interior [Defendants] intend[] to provide a listing of trust assets along with a report on the
                  management of the funds generated from those assets and from other sources with each quarterly
                  statement." Historical Accounting Plan at 2.
                           Second, the 1994 Act requires Interior Defendants to account for funds deposited after the Act
                  of June 24, 1938. The Court of Appeals acknowledged this requirement when it held that Interior
                  Defendants must account for ali funds, "irrespective of when they were deposited (or at least so long
                  as they were deposited after the Act of,June 24, 1938)." Cobell y. Norton, 240 F.3d at 1102
                  (emphasis added). Plainly, if Congress had not intended to so delimit the accounting obligation, it
                  would have omitted thc phrase "deposited or invested pursuant to the Act of June 24, 1938." 25
                  U.S.C.  40I l(a). Accordingly, unless the statute of limitations requires a different temporal
                 limitation, Interior Defendants' Plan anticipates that each eligible IIM account holder will receive a

                                                                            13

                     historical statement of account which includes the account history from the later of the inception of
                   the account or June 24, 1938, until December 31, 2000.
                            Third, the statute requires Interior Defendants to account for funds "held in trust by the United
                   States." 25 U.S.C.  401 l(a). Funds that were never received by the United States because they were
                   paid directly to the Indian beneficiary of the underlying trust asset are not "funds held in trust by the
                   United States" (nor are they "deposited or invested pursuant to the Act of June 24, 1938"), and
                   therefore the statutory duty to account does not extend to such funds. This conclusion is consistent
                   with this Court's ruling that the 1994 Act requires Interior Defendants "to provide plaintiffs an
                   accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs, without
                                                                                                                                                   {
                       regard to when the funds were deposited." ..C. obetl v. Babbitt, 91 F. Supp. 2d at 58 (emphasis added),          i
                           Although the General Allotment Act prohibited leasing of allotments, Congress concluded in
                   1891 that not all allottees would be able to make their own allotments productive and therefore
                  authorized Interior to lease to a third party the allotment of any individual who "by reason of age or
                  other disability.., can not personally and with benefit to himself occupy or improve his allotment or
                  any part thereof...." Chap. 383, 26 Stat. 794, 795 (Feb. 28, I891) (Ex. 7). By 1910, widespread
                  leasing of allotments was permitted. Act of June 25, I910, Pub. L. No. 61-313, Ch. 43t,  4, 36 Stat.
                  855, 856-57 (Ex. 8). Since 1947, Interior's regulations have permitted the payment of various types
                  of lease income directly to individual allotment owners, l0 See Secretarial Order No. 2342, amending
                  Section I71.4 of Title 25 of the Code of Federal Regulations (July I, 1947) (Ex. 9); see also 25

                         10 Even before 1947, Interior's regulations authorized direct payment to allotment owners
                of certain types of lease payments. See, e.g. Regulations Governing the Leasing of Allotted
                Indian Lands for Fanning and Grazing Purposes, p. 4, _, 3 (July 1, 1916) (Ex. 10). Since 1947,
                the direct-pay regulations have been amended infrequently; thus, from year to year the language
                of the regulations is largely identical.
                                                                            14

                     C.F.R. Pt. 162 (current regulations permitting lease payments to be made directly to Indian
                   landowners); 25 C.F.R. Pt. 166 (current regulations permitting grazing rental payments to be made
                   directly to Indian landowners); 25 C.F.R. Pt. 212 (current regulations permitting direct payments to
                   Indian landowners after production is established if specifically provided for in mineral lease).
                   Although "direct-pay" leases of the surface of allotted lands required Interior's approval, the
                   regulations did not require the lessee to report payments or otherwise notify Interior whether
                   payments had been made under a lease after it was approved, z_ The individual allotment owner
                   negotiated the terms of the lease, arranged for payment directly to himself, and Interior was not
                   informed of payments after the lease was approved.
                           When Interior revised its surface leasing regulations in 2001, it sought comments on whether
                                                                                                                                                  i
                   to continue to provide for direct payment to allotment owners. See Proposed Rule - Trust
                   Management Reform: Leasing/Permitting, Grazing, Probate and Funds Held In Trust, 65 Fed. Reg.
                  43,874 (July 14, 2000). Consistent with the majority of comments, the final regulations continued to
                  permit direct payments as long as direct payment is a specific term in the lease or permit. Interior
                  explained:
                           Consistent with the majority of comments, the final regulations continue to provide for
                           direct payment to Indian landowners for leases on their trust lands, as long as direct
                           payment is a specific term in the lease or permit, tn order to ensure that the Secretary
                           can properly enforce lease and permit payment terms, leases and permits authorizing
                           direct payments must require that tenants maintain documentary proof of payment.
                           Several respondents suggested that the Secretary should require that proof of payment
                           be submitted to the agency with every direct payment. However, such a requirement
                           would be inconsistent with historic practice and would result in an unsustainable drain

                         _ There are also some oil and gas leases on allotted lands for which the lessee pays the
                allottee lessors directly and not through the Minerals Management Service ("MMS") and the
                BIA. Lessees nonetheless must file the required monthly report of sales and royalty with MMS,
                reporting the products produced, the production volume, sales volume, and royalty value by lease
                and production month. See 30 C.F.R.  210.52-53.
                                                                            15

                               on agency resources. Absent a system for tracking such notices, the requirement
                            would not produce the desired goal of ensuring prompt enforcement of payment of
                            trust income. Further, it would be far less effective than relying on the Indian
                            landowner to advise the BIA immediately upon discovering that a payment has not
                            been made and requesting enforcement assistance. Therefore, the final regulations
                            provide that the Indian landowner notify the Secretary that a required payment has not
                            been made. The Secretary then will take prompt and effective action based on that
                            specific information. The Department continues to recognize the advantages to Indian
                            landowners of direct payments. However, this advantage necessarily brings with it
                            increased responsibility of Indian landowners to assist in the enforcement of non-
                            payment of their leases and permits. With this regulatory change, Indian landowners
                            who opt for and negotiate direct payments are clearly notified of their responsibilities
                            to notify the BIA of late payments. Similarly, tenants are notified both by these
                            regulations and in the lease itself that documentary proof of payment will be necessary
                            to demonstrate that a payment was timely made in the correct amount due, should
                            there be any question about a payment.
                   Trust Management Reform: Leasing/Permitting, Grazing, Probate and Funds Held in Trust, 66 Fed.
                                                                                                                                                  i
                                                                                                                                                                                                                                        4
                                                                                                                                                                                                                                                                                                                                 .!
                   Reg. 7068, 7080 (Jan. 22, 2001). The final rule also made clear that Interior was not taking on any
                   obligation to manage or account for direct payments:
                           The Department is not taking on any._bligation to manage or account for funds pai..d
                           directly to Indian landowners that are not actually held in trust by the United States.
                           This is consistent with section 102(a) o.f.t..h..e....American Indian Trust Management
                           Reform Act of 1994, 25 U.S.C. [_] 4011. Although we invited the public to comment
                           on the question of accounting for direct payments, no specific recommendations were
                           received beyond a general recommendation to collect proof of payment.
                  Id._:. (emphasis added).
                           Moreover, Interior's trust fund regulations do not permit the deposit of"direct pay" funds into
                  an IIM account unless the direct payment cannot be effectuated. The regulations provide that Interior
                  "will not accept funds from sources that are not identified in the table in  115.702 for deposit into a
                  trust account." 25 C.F.R.  t 15.703. The table in 25 C.F.R.  115.702 includes only those direct pay
                  funds that have been returned by mail to the payor as undeliverable. 25 C.F.R.  115.702 ([nterior
                  "must accept proceed[s] on behalf of... . individuals from... [f]unds derived directly from trust
                  lands, restricted fee lands, or trust resources that are presented to the Secretary, on behalf of the...
                                                                            16

                     individual Indian owner(s) of the trust asset, by the payor after beine mailed to the owner(s) as
                   required by contract (i.e. direct pay) and returned by mail to the pa.y.or as undeliverable." (emphasis
                   added)). Thus, Interior's direct pay program accommodates the desires of liN[ account holders to be
                   more involved in the management of their financial affairs and to enjoy greater privacy about the
                   details of those financial affairs.
                            Interior Defendants' Historical Accounting Plan describes an accounting for "ali funds held in
                   trust by the United States for the benefit of... an individual Indian which are deposited or invested
                   pursuant to the Act of June 24, 1938." 25 U.S.C.  401 l(a). Accordingly, Interior Defendants'
                   determinations regarding the scope of the accounting conform to the scope of the accounting
                   mandated by Congress, and are therefore proper as a matter of law.
                                                                                                                                                  !
                            B.      Interior Defendants' Plan Provides For Historical Accountings To All IIM
                                    Account Holders With Accounts Open On Or After October 25, 1994.
                                    1.      The 1994 Act Establishes Specific Accounting Obligations For
                                             Funds Held In Trust On Or After Passage Of The Act.
                           As noted above, Plaintiffs in this action "seek to enforce their statutory right to an accounting
                   as that phrase is meant under the provisions of 25 U.S.C.  162a(d)(1)-(7) and 25 U.S.C.  4011."
                   Cobell v. Babbit[, 9t F. Supp. at 27. The "requirement to account" established by the 1994 Act
                  applies to "all funds held in trust by the United States for the benefit of... an individual tndian which
                  are der_osited or invest e_d pursuant to the Act of June 24, 1938." 25 U.S.C.  401 i(a) (emphasis
                  added); see also Cobell v. Norton, 226 F. Supp. 2d 1, 116 n. I35 (stating that the accounting owed by
                  Interior Defendants "necessarily involves examining past transactions and events that could [affect]
                  the current balance" and that "the Interior Department must take past transactions into consideration
                  to ensure that the current balances in the IIM trust accounts are accurate." (emphasis added)). In
                  setting forth this requirement, the 1994 Act does not contain a retrospective element, such as
                                                                            17

                     requiring an accounting for all funds that "were" or "have ever been" deposited or invested. _2

                   Moreover, as explained below, the language of the t 994 Act is determinative because it establishes
                   specific accounting obligations that can only be performed for accounts in existence on or after the
                   passage of the 1994 Act on October 25, 19947
                            The 1994 Act contains two specific provisions relevant to the Secretary's accounting duties,
                   both of which make sense only in the context of existing accounts. See 25 U.S.C.  162a(d), 4011
                   (codifying 1994 Act,  101 and 102, respectively). Section 101 of the I994 Act is captioned
                   "Affirmative Action Required." 1994 Act, Pub. L. No. 103-412,  101; H.R. Rep. No. I03-778, at 2
                   (Oct. 3, I994); codified at 25 U.S.C.  162a(d). Section 101 provides:
                                                                                                                                                  i
                                                                                                                                                  I
                                                                                                                                                  :!
                 t2 The Supreme Court has consistently held that statutes are to be accorded only
                 prospective application unless Congress has "directed with requisite clarity that the law be
                 applied retrospectively." INS v_.St. Cyr, 533 U.S. 289, 316 (2001) (citing Martin v. Hadix, 527
                 U.S. 343, 352 (1999)).
                         The standard for finding such unambiguous direction is a demanding one.
                         "[C]ases where this Court has found truly 'retroactive' effect adequately
                         authorized by statute have involved statutory language that was so clear that it
                         could sustain only one interpretation."
                 533 U.S. at 316-17 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)) (brackets in
                original); see also United States v. Zacks, 375 U.S. 59, 65-67 (1963) (cited in Lindh v. Murphy,
                52I U.S. at 328 n.4); Automobile Clu.b...v. Commissioner, 353 U.S. 180, 184 (1957) (same);
                Graham v. Goo&ell, 282 U.S. 409, 416-20 (1931) (same).
                         _3 We are mindful of the D.C. Circuit's discussion regarding the Secretary's preexisting
                trust responsibilities to account to IIM account holders. See Cobell v. Norton, 240 F.3d 1081,
                1102-04 (D.C. Cir. 2001). However, the D.C. Circuit's discussion did not contradict this Court's
                conclusion that Plaintiffs may seek to enforce only statutority based claims in this APA action.
                Rather, its discussion simply confirmed that the duties imposed by the 1994 Act necessarily
                required an analysis of transactions contributing to the balances in existence as of October 25,
                1994. Indeed, the question of whether the 1994 Act established enforceable rights with respect to
                iIM accounts that were distributed and closed prior to October 25, 1994, was not before the
                appellate court.
                                                                            18

                              The Secretary's proper discharge of the trust responsibilities of the United States shall
                            include (but are not limited to) the following:
                                             (1) Providing adequate systems for accounting for and
                                    reporting trust fund balances.
                                             (2) Providing adequate controls over receipts and
                                    disbursements.
                                             (3) Providing periodic, timely reconciliations to assure the
                                    accuracy of accounts.
                                             (4) Determining accurate cash balances.
                                             (5) Preparing and supplying account holders with periodic
                                    statements of their account performance and with balances of their
                                    account which shall be available on a daily basis.
                                             (6) Establishing consistent, written policies and procedures for
                                    trust fund management and accounting.
                                             (7) Providing adequate staffing, supervision, and training for
                                    trust fund management and accounting.
                                             (8) Appropriately managing the natural resources located                                  j
                                    within the boundaries of Indian reservations and trust lands.                                        ]
                                                                                                                                                  1

                                         25 U.S.C.  162a(d). Congress's use of forward-looking language demonstrates that it did not intend
                  that section 101 of the 1994 Act apply to accounts distributed and closed prior to the enactment of the
                   1994 Act. For example, such closed accounts do not have "balances" to which to apply the duty to
                  "[p]rovid[e] adequate systems for accounting for and reporting trust fund balances," 25 U.S.C. 
                  162a(d)(1), or the duty to "[d]etermin[e] accurate cash balances," 25 U.S.C.  162a(d)(4), or the duty
                  to  [,.]repar[e] and [s]upply account holders with periodic statements of their account performance
                  and with balances of their account which shall be available on a daily basis," 25 U.S.C.  t 62a(d)(5).
                  Nor do such accounts have current receipts or disbursements to which to apply the duty to
                  "[p]rovid[e] adequate controls over receipts and disbursements." 25 U.S.C.  t62a(d)(2).
                           Section 102 of the 1994 Act, entitled "Responsibility of Secretary to Account for the Daily
                  and Annual Balances of Indian Trust Funds," sets forth three specific accounting requirements. In
                  subsection (a) (entitled "Requirement to Account"), it provides:

                                                                            19

                              The Secretary shall account for the daily and annual balance of all funds held in trust
                            by the United States for the benefit of an Indian tribe or an individual Indian which are
                            deposited or invested pursuant to section 162a of this title.
                   25 U.S.C.  401 t(a) (emphasis added). Subsection (b) (captioned "Periodic Statement of
                   Performance") provides:
                           Not lat. e. r t.h.an 20 business days after the close of a ca.1...endar quarter, the Secretary shall
                           provide a statement of performance to each Indian tribe and individual with respect to
                           whom funds are deposited or invested pursuant to section 162a of this title. The
                            statement, for the period concerned, shall identify-
                                    (1) the source, type, and status of the funds;
                                    (2) the beginning balance;
                                    (3) the gains and losses;
                                    (4) receipts and disbursements; and
                                    (5) the ending balance,
                                                                                                                                                  i
                   25 U,S.C.  401 l(b) (emphasis added). Finally, subsection (c) requires the Secretary to conduct an
                   annual audit of all funds held in trust and directs that the Secretary "shall include a letter relating to
                  the audit in the first statement of performance provided under subsection (b) of this section after the
                  completion of the audit." 25 U.S.C.  401 l(c).
                           As with section 101, Congress's use of forward-looking language in section 102 confirms that
                  Congress did not intend that section 102 apply to accounts closed prior to the enactment of the 1994
                  Act. The periodic statement of performance mandated by section i 02(b) is to be provided "In]or later
                  than 20 business days after the close of a calendar quarter," and the specific elements of the statement
                  described in subsection (b) are to be provided "for the period concerned.' 25 U.S.C.  401 l(b). it is,
                  of course, impossible for the Secretary to provide such a statement for any calendar quarter ending
                  prior to October 25, 1994 within twenty business days after the close of the calendar quarter. Insofar
                  as retrospective application of the 1994 Act can only be mandated through a construction leading to
                  this impossible and absurd result, such a construction is improper and must be rejected..See, e.g.,

                                                                            20

                     FTC v. Ken Roberts Co., 276 F.3d 583, 590 (D.C. Cir. 2001) (citing Griffin v. Oceanic Con. tractors,
                   Inc., 458 U.S. 564, 575 (1982)), cert. denied, 123 S. Ct. 99 (2002).
                            Section 102 is as significant for what it does not say as for what it does say. For example,
                   Section 102 does not say that the Secretary shall account for all funds that "have ever been" or "were"
                   deposited or invested pursuant to 25 U.S.C.  162a. Instead, Congress specifically used the present
                   tense and limited the requisite accounting to funds "which ar.._ee deposited or invested pursuant to the
                   Act of June 24, 1938." 25 U.S.C.  4011(a)-(c) (emphasis added). If Congress had intended the 1994
                   Act's accounting requirements to apply to funds previously deposited or invested, or to closed
                   accounts, it would have "directed with requisite clarity that the law be applied retrospectively" to
                   those funds or those closed accounts. INS v. St. C_, 533 U.S. at 316. No such direction is to be              ]
                                                                                                                                                  I

                                                      found within the accounting provisions of the 1994 Act. Sections 101 and 102 of the 1994 Act must
                   be construed as applying only to IIM accounts existing on or after the enactment of the 1994 Act and
                   not to IIM accounts that were distributed and closed prior to October 25, 1994.
                                    2.      Legislative History Confirms Congress's Intent That The Specific
                                             Accounting Requirements Set Forth In The 1994 Act Apply To
                                             Those Funds Held In Trust On Or After The Date Of Enactment.
                           The legislative history accompanying the 1994 Act confirms that Congress never intended that
                  the Secretary prepare an accounting for IIM accounts that had been distributed and closed prior to
                  October 25, 1994. In its report accompanying H.R. 4833, the bill ultimately enacted as the 1994 Act,
                  the House Natural Resources Committee discussed the well-known "Misplaced Trust" Report
                  previously issued by the House Committee on Government Operations. H.R. Rep. No. 103-778, at 9
                  (Oct. 3, 1994) (discussing Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the
                  Indian Trust Fund, H.R. Rep. No. 102-499 (Apr. 22, 1992) ("Misplaced Trust Report")), reprinted in
                  1994 U.S.C.C.A.N. 3468-69. In particular, the Misplaced Trust Report described BLA's costly efforts
                                                                            21

                     in the early 1990s to conduct a complete audit and reconciliation of all IIM accounts and concluded
                   that "it might cost as much as $281 million to $390 million to audit the IIM accounts at ail 93 BIA
                   agency offices." Misplaced Trust Report at 26. The Report continued:
                            Obviously, it makes little sense to spend so much when there was only $440 million
                            deposited in the IIM trust fund for account holders as of September 30, 199 t. Given
                            that cost and time have become formidable obstacles to completing a full and accurate
                            accounting of the Indian trust fund, it may be necessary to review a range of sampling
                            techniques and other alternatives before proceeding with a full accounting of all
                            300,000 accounts in the Indian trust fund. However, it remains imperative that as
                            complete an audit and reconciliation as practicable must be undertaken.
                   Id___: at 26 (emphasis added and internal citation omitted).
                            The Misplaced Trust Report's reference to the "300,000 accounts in the Indian trust fund,"
                                       Report at 26, is particularly relevant. In its description of the IIM trust fund, the
                                                                                                                                                  I
                   Misplaced
                                Trust
                   Misplaced Trust Report explained:
                           The IIM trust fund is a deposit fund, usually not voluntary, for individual participants
                           and tribes. It was originally intended to provide banking services for legally
                           incompetent Indian adults and Indian minors without legal guardians. In addition to
                           these fiduciary accounts, the II/VI trust fund now contains deposit accounts for certain
                           tribal operations and for some tribal enterprises. Approximately 300,000 accounts...are
                           held in the IIM trust fund.
                  Misplaced Trust Report at 2 (emphasis added). Thus, its use of the present tense in describing how
                                                                   L   

                                                     many accounts "are held" in the I1M trust fund makes clear Congress's focus on the then-existing
                  trust accounts when it established the specific accounting duties set forth in the 1994 Act. See also
                  H.R. Rep. No. 103-778, at 9 (legislative history also stated that "it]he BIA is currently managing...
                  nearly 337,000 separate IIM accounts" (emphasis added)).
                           Finally, as this Court noted in its 1999 opinion, Con_essman Synar, the principal author of
                  the Misplaced Trust Report, stated during a 1989 hearing of the House Subcommittee on Interior
                  Appropriations:

                                                                            22

                               I'm going to tell you, speaking on behalf of myself and [Chairman] Yates and four
                            Congresses, it is our clear intention - and let the Record show - it is our clear intention
                            that these accounts will be reconciled and audited before there is any movement or
                            transfer. If you interpret that any other way, or if your lawyers or your personnel do,
                            you're interpreting it wrong.
                   Misplaced Trust Report at 21 (internal citation omitted), quoted in CobelI v. Babbitt, 91 F. Supp. 2d
                   at 41. Congressman Synar's statement provides yet further indicia of Congress's intent during the
                   debate which led to enactment of the 1994 Act. Congress was concerned regarding then-existing
                   accounts; Interior could not "move" or "transfer" accounts no longer in existence. Thus, Congress
                   clearly did not intend to mandate an historical accounting of accounts which no longer existed when
                   the 1994 Act became law.
                                                                                                                                                   i
                                                            Because Interior Defendants' Historical Accounting Plan describes an accounting that extends
                  to all of the funds for which Congress contemplated an accounting, Interior Defendants' plan to
                  provide an accounting for accounts open on or after October 25, 1994 is proper as a matter of law.
                           C.      Interior Defendants' Obligation To Perform An Accounting Does Not Extend To
                                    the Closed Accounts Of Deceased IIM Account Holders.
                           As indicated in the Historical Accounting Plan, Interior Defendants "do[] not contemplate
                  performing historical accounting work for the closed accounts of deceased predecessors" as part of
                  the historical accounting effort for current IlM account holders. Historical Accounting Plan at 1I-3.
                  As an initial matter, as explained in Section I.B., above, accounts closed prior to the passage of the
                  1994 Act are not within the scope of the accounting prescribed by Congress.
                          Nor must Interior Defendants examine the transactions in the account of a deceased
                 predecessor ora current 11M account holder in order to provide an accounting to the current account
                 holder. As explained in Interior Defendants' Plan, Interior intends not only to provide IIM account
                 holders with statements of account activity, but also to assess the accuracy of such statements by

                                                                           23

                     reconciling them to supporting documentation, such as leases, contracts, and probate orders. An IIM
                   account holder who wishes to contest the validity of such underlying transactions may do so in an
                   appropriate proceeding, but not through a request for an accounting.
                            The validity of Indian probate determinations, which generally conclude one trust relationship
                   and define a new one, must be challenged through applicable statutory and administrative regulations.
                   As described below, such probate determinations are the product of either administrative proceedings
                   or state judicial proceedings that provide a full measure of due process to interested parties.
                           In some instances, the Department of the Interior makes Indian heirship determinations; in
                   other instances, such determinations are made by state probate courts. In 19 t 0, Congress enacted
                   legislation to provide for the determination of heirs of deceased Indians. Act of June 25, 1910, ch.
                                                                                                                                                  I
                  43t,  1-2, 36 Stat. 855, 855-56 (codified as amended, 25 U.S.C.  372 et seq.) ("Act of June 25,
                   1910"). Congress gave the Secretary of the Interior broad authority to ascertain the legal heirs of
                  Indians who die without leaving a will. t4 25 U.S.C.  372. The Act of June 25, 1910 also specifies
                  that individual Indians may convey their trust or restricted property by executing a will approved by
                  the Secretary. 25 U.S.C.  373. An exception to this statutory scheme exists with respect to members
                  of Five Civilized Tribes and the Osage tribe of Oklahoma, for whom probate proceedings are
                  conducted in the state courts of Oklahoma. 25 U.S.C.  355, 373c, 375; 25 C.F.R.  16.1-16.9; Act
                  of June 28, 1906, ch. 3572,  6, 34 Stat. 539, 545; Act of April 18, 1912, ch. 83,  3, 37 Stat. 86, 87-
                  88; Act of August4, I947, ch. 458,  3, 61 Stat. 731,733.

                         _4 Prior to 1910, authority to make Indian heirship determinations was vested in some
                instances in federal courts and in other instances in the Secretary of the Interior. Felix S. Cohen,
               Handbook on Federal Indian Law, at 110 n.262 (i942).
                                                                           24

                              To aid implementation of the Act of June 25, 1910, Congress granted the Secretary express
                   authority to prescribe rules and regulation for probate matters, and required the Secretary to provide
                   notice and an opportunity to be heard to potential beneficiaries before ascertaining the heirs of a
                   deceased Indian. 25 U.S.C.  372. As set forth in greater detail below, the Department of the Interior
                   has established regulations and an administrative process designed to afford such rights, as well as
                   reheating and appeal rights, to interested parties. See 43 C.F.R.  4.210 et seq.; 43 C.F.R.  4.30
                   et, seq.
                           Interior's probate proceedings have performed functions similar to that of state probate courts:
                   determining the lawful heirs of deceased Indians while ensuring due process to interested parties,
                                                                                                                                                  1
                   including the tIM account holders. Interior's probate procedures t5 comport with constitutional
                                                                                                                                                  i
                   standards of due process. See Kicking Woman v. Hodel, 878 F.2d 1203, 1208 (9th Cir. 1989)
                  (holding that Interior regulations afforded due process and a meaningful appeal and declining to
                  engage in a substantive review of an Indian probate proceeding).
                           When the BIA is provided notice of the death of an Indian trust property owner, BIA
                  researches its records for information about the decedent's familial relations and identifies the trust
                  property the decedent owned. _6 See 43 C.F.R.  4.210. BIA then provides the gathered information
                  to the Office of Hearings and Appeals ("OHA'), id., and notice is provided to probable heirs and

                         t5 Oklahoma state courts probating the estates of Members of the Five Civilized Tribes
                and the Osage tribe provide similar due process protections to prospective heirs. Okla. Stat. Ann.
                tit. 58,  23, 25, 128,281,552, and 553 (West 2002).
                         _' The accurate inventory o  property has been a priority: "As the probate order serves to
                identify the land interest passing to the heirs, an accurate inventory of these lands is necessary.
                The accurate preparation of this inventory is one of the most important tasks of the Realty staff."
                Probates, A Training Manual in Real Property Management, Bureau of Indian Affairs, Division
                of Real Estate Serices 2-4 (Sept. 1985) (Ex. 11).
                                                                            25

                     other interested parties. 43 C.F.R.  4.21 I. When the OHA deciding official receives the probate
                   inventory, he or she provides the presumptive heirs with advance notice of the time and place oft_he
                   hearing at which testimony will be taken to determine the heirs of the decedent and to determine the
                   validity of any will offered for probate. Id. The deciding official provides notice to the presumptive
                   heirs by both mailing and publication, and publication must be made in at least five conspicuous
                   places? Id_._:. Those chargeable with notice of the hearing will be bound by the result. 43 C.F.R. 
                   4.211 (c) ("All parties in interest, known and unknown, including creditors, shall be bound by the
                  decision based on such hearing .... "). Interested parties are given the opportunity to take discovery
                  and, thus, gather additional information about the decedent, his heirs, and trust property. 43 C.F.R.
                                                                                                                                                  l
                   4.220-25.  Following discovery, the OHA deciding official holds a hearing with witness
                                                                                                                                                  :i
                  testimony, subject to cross examination, recorded in a verbatim transcript. Interested parties may
                  appear with or without an attorney. See 43 C.F.R.  4.230-36. After the hearing, the official issues
                  an order settling and directing the distribution of the decedent's estate, including any IIM account,
                  and decides the "issues of'fact and law involved in the proceedings." 43 C.F.R.  4.240.
                           Aggrieved parties wishing to dispute a probate order may request a rehearing from the OHA
                  deciding official by filipg a request within 60 days after the date on which notice of the decision is
                  mailed. 43 C.F.R.  4.241. Within three years after a probate decision, interested parties can petition
                  to reopen the probate decision if they can demonstrate that: (i) they had no notice of the proceeding,
                  and (ii) they did not reside on [or near] the reservation during the time when the notice was published.
                  43 C.F.R.  4.242.  When more than three years have elapsed since a probate decision, an interested
                  party may still seek to reopen probate if, in addition to meeting the criteria for reopening within three

                         _7 The notice is to "inform alt persons having an interest in the estate.., to be present at
                the hearing or their rights may be lost by default." 43 C.F.R.  4.212(a).
                                                                           26

                     years, a manifest injustice will result if probate is not reopened and the error can reasonably be
                   corrected. Id_.___. Parties wishing to further challenge a probate decision also have the right to appeal to
                   the Interior Board of Indian Appeals. 43 C.F.R.  4.320.
                           Judicial review in federal court is available once administrative remedies have been
                   exhausted? Before seeking judicial review, however, a claimant must exhaust administrative
                   remedies. Arenas v. Uni.t..ed States, 197 F.2d 418,422 (9th Cir. 1952) (Indian who did not file
                   administrative appeal could not challenge administrative heirship determination); Mammedaty v.
                   Kleppe, 412 F. Supp. 283,284-85 (W.D. Okla. 1976) (failure to file timely notice of appeal with
                  Board of Indian Appeals precluded judicial review). However, courts have permitted judicial review
                                                                                                                                                  t
                  of constitutional claims arising from probate notwithstanding a failure to exhaust administrative
                                                                                                                                                  {
                  remedies. See Anderson v. Babbitt, 230 F.3d 1158 (9th Cir. 2000).
                           In light of the comprehensive administrative and statutory scheme for review of probate
                  decisions, it is proper for Interior Defendants to rely upon probate orders in the course of verifying the
                  accuracy of the account activity to be reported to IIM account holders. Account holders who wish to
                  contest a probate order underlying a distributive IIM account transaction must exhaust their statutory
                  and administrative remedies and, if necessary, seek appropriate review in federal court (to the extent
                  that they are not time barred). With respect to state court probate decisions, the appropriate state
                  court remedies must be sought in state court.

                         la In 1990, Congress amended tlle Act of June 25, 1910 to allow for judicial review of
                Indian probate decisions in federal court. See An Act To Make Miscellaneous Amendments To
                Indian Laws, and for Other Purposes, Pub. L. No. 101-301,  12(c), 104 Stat. 206, 211 (1990).
                                                                           27

                              D.      Statistical Sampling Methodologies Enhance The Feasibility Of Interior
                                    Defendants' Historical Accounting Plan.
                            The 1994 Act is silent as to the methodology Interior Defendants are to use to comply with
                   their duty to account. Nor has this Court ruled upon "what specific form of accounting, if any, the
                   [1994] Act requires." C..o. bellv. Babbitt, 91 F. Supp. 2d at 40 n.32. As the Court of Appeals noted,
                   "[s]uch decisions are properly Iet_ in the hands of administrative agencies." Cobell v. Norton, 240
                   F.3d at 1104. The use of statistical sampling methodologies in the Historical Accounting Plan
                   represents a reasonable exercise of the Secretary's discretion and is supported by the legislative
                   history underlying the 1994 Act.
                           Interior Defendants' Historical Accounting Plan does not contemplate the use of statistical             i
                                                                                                                                                  1
                   sampling techniques as a substitute for an accounting. As explained above, IIM account holders will          {
                  receive a detailed transaction history of"past deposits, withdrawals, and accruals." Cobell v. Norton,
                  240 F.3d at 1102. Statistical sampling methodologies will be used only as a tool for performing the
                  additional step of assessing the accuracy (by a review of supporting documentation) of certain subsets
                  of transactions in the account histories.
                           Statistical sampling is well-recognized by the courts as providing a reliable and acceptable
                  method for auditing data and obtaining adjudicative evidence. For example, in Chares County
                  Home Health Serv., Inc. v. Sullivan, 931 F.2d 914 (D.C. Cir. 1991), the D.C. Circuit considered
                  challenges by health care providers to the statistical sampling audit procedures which the Secretary of
                  Health and Human Services ("HHS") employed to review Medicare payments. The providers argued
                  that HHS was required to conduct individual claims adjudication and that its use of statistical
                  sampling violated the Medicare statute and contravened procedural due process. Ihe D.C. Circuit

                                                                            28

                     rejected these arguments, noting that the Medicare statute was silent regarding the use of sampling
                   and holding that HHS's decision to utilize statistical sampling was permissible. Id...__. at 916-22.
                           Numerous other federal courts have similarly approved of the use of statistical sampling as a
                   means for auditing records and establishing adjudicative facts. See, e.g,, Hilao v. Marco s, 103 F.3d
                   767, 786 (9th Cir. 1996) (in human rights class action, court approves use of statistical sampling to
                   establish compensatory damages for individual class members and observes that "the time and
                  judicial resources required to try the nearly 10,000 claims in this case would alone make resolution of
                   Hilao's claims impossible."); Yorktown..M..e.d... Lab.., Inc. v. Perales, 948 F.2d 84, 8%90 (2d Cir.
                   1991); Michigan Dep't ofEduc, v. Unit_ecl States DeWt of Educ., 875 F.2d 1196, I206 (6th Cir.
                   1989); Illinois Physicians Union v. Miller, 675 F.2d 151, 155 (7th Cir. 1982); Georgia v. Califano,            i
                  446 F. Supp. 404, 409-11 (N.D. Ga. 1977).
                           Case law endorses the use of statistical sampling generally, and the legislative history
                  accompanying the 1994 Act supports its use in performing the historical accounting specifically.
                  Congress enacted the 1994 Act after considering numerous reports and studies, including the
                  Misplaced Trust Report of the House Committee on Government Operations, described above. The
                  Committee reported on BtA's efforts in the early 1990s to audit selected IIM accounts - those
                  maintained at three of the BiA's ninety-three offices. Misplaced Trust Report at 24-26. The BIA
                  reported "substantial difficulties in completing any IIM account phase I reconciliations" and
                  enormous costs related to these efforts. Id__. at 25; see also id. at n.81 (subcommittee "is concerned by
                  the enormity of [BIA] cost estimates to complete the IIM reconciliations"). The Misplaced Trust
                  Report concluded that "it might cost as much as $281 million to $390 million to audit thc IIM
                  accounts at all 93 BIA agency offices," id. at 26, and concluded:

                                                                            29

                               Obviously, it makes little sense to spend so much When there was only $440 million
                            deposited in the IIM trust fund for account holders as of September 30, 1991. Given
                            that cost and tj.m...e...h.av.e..become formidable obstacles to completing a full and accurate
                            accountingof the Indian trust fund, it may be necessary_ to review a range of samr_line
                            technique, s and other alternatives before proceeding with..a..full accounting of all
                            300,000 accou,nts in the Indian trust fund. However, it remains imperative that as
                            complete an audit and reconciliation as practicable must be undertaken.
                   Id____ at 26 (emphasis added and internal citation omitted).
                            As this Court has previously recognized, Congress enacted the 1994 Act "[b]ased largely on
                   the findings made in Misr>!aced Trust." Cobei1 v. Babbitt, 91 F. Supp. 2d at 13. The legislative
                   history underlying the 1994 Act confirms that Congress both recognized the impracticability of
                   expending the money required for a review of every transaction in every individual Indian trust
                                                                                                                                                  i
                                                                                                                                                                                                                                                                                                                                  !
                   account and explicitly recognized the potential need to "review a range of sampling techniques and
                                                                                                                                                  i
                   other alternatives before proceeding with a full accounting of all 300,000 accounts in the Indian trust
                   fund." Misplaced Trust Report, at 26.
                           Simply put, Congress never mandated a transaction-by-transaction methodology for verifying
                  the accuracy of every transaction constituting the IIM trust fund and, indeed, suggested that statistical
                  sampling could provide a feasible alternative. _9 Interior Defendants' Plan thoughtfully employs
                  statistical sampling by combining a transaction-by-transaction analysis of specific types and dollar    --
                  levels of transactions with an analysis of statistically valid samples of lower-dollar transactions. See
                  Historical Accounting Plan at 1, I-1 to I-2, I1-2 to II-3, App. D. Moreover, Interior Defendants'

                         _9 Elsewhere, this Court has rejected an agency's use of statistical sampling where the
                statutory language and legislative history evinced a clear Congressional intent to prohibit its use.
                See United States House of Representatives v. Unj. Led. States Dep't of Commerce, 11 F. Supp. 2d
                76, 97-104 (D.D.C. 1998) (rejecting the use of sampling to supplement the census headcount
                used for House apportionment based upon express prohibition in Census Act and unsupportive
                legislative history), appeal dismissed, 525 U.S. 316 (1999). No such prohibition is expressed or
                implied in the 1994 Act or its legislative history.
                                                                            30

                    methodology should permit them to determine the accuracy rate of their historical accounting work
                   with a 99 percent confidence level. Id..__:. at 1, II-1 to II-2.
                           Sampling will expedite the historical accounting without sacrificing reliability, at a sensible
                   cost. Thus, Interior Defendants' use of statistical sampling methodologies not only is entirely
                  consistent with the congressional aims embodied in the 1994 Act, but also promotes the feasibility of
                  the Interior Defendants' Plan in light of recent congressional expressions of concern regarding the
                  cost and delay associated with relying exclusively on transaction-by-transaction methodologies.
                  II.      Plaintiffs' Plan is A Claim For Money Damages, Rather Than A Plan For Conducting
                           An Historical Accounting, And Is Based On The False Assumption That Insufficient
                           IIM Trust Records Are Available To Undertake The Historical Accounting.
                                                                                                                                                  t
                     Plaintiffs' Plan for Determinin_ Accurate Balances in the Individual Indian Trust ("Plaintiffs'         ]
                  Plan") is based on the fundamentally flawed premise that because there are admitted gaps in the
                  Indian trust records available to do an historical accounting, it is preferable to rely entirely on
                  estimating techniques, rather than, as Interior Defendants have proposed, to use existing records to
                  perform the accounting work and to rely on forensic accounting methods to address gaps in the
                  records. To support their patently illogical argument, Plaintiffs devote the first thirty-eight pages of
                  their fifty-five page filing not, as the Court ordered, to discussing a plan for undertaking an historical
                  accounting of IIM trust funds, but instead to detailing how, in their view, gaps in the availability of
                  trust records "have ensured that the accounting owed by the United States government and ordered by
                  this Court is impossible." Plaintiffs' Plan at 3.
                           Because, according to Plaintiffs, the accounting for which they sued is impossible, they argue
                  that the Court must adopt instead their estimating techniques. In so arguing, Plaintiftk not only fail to
                  support their absurd claim that complete guesswork is preferable to Interior Defendants' document-
                  based method, but, in addition, they implicitly admit that their Plan is not an accounting and thus by
                                                                            31

                     definition complies with neither the requirements of the 1994 Act nor the Court's September 17, 2002
                   Order permitting Plaintiffs to file "a plan for conducting a historical accounting." Cobell, 226 F.
                   Supp. 2d at 162. Indeed, taken to its logical conclusion, Plaintiffs' argument that an accounting is
                   impossible would suggest that this Court lacks jurisdiction over their lawsuit since, as noted below,
                   an accounting is the only remedy that this Court has jurisdiction to impose. Accordingly, the Court
                   should rule that Plaintiffs' Plan is fatally flawed and grant Defendants partial summary judgment that
                   Interior Defendants' Historical Accounting Plan comports with their obligation to perform an
                   accounting?
                           A.      Plaintiffs' Plan Is A Claim For Money Damages, Rather Than A Plan For
                                    Conducting An Historical Accounting.                                                              i
                           Pursuant to the 1994 Act, Interior Defendants are obligated to "account for the daily and                1

                  annual balance of all funds held in trust by the United States for the benefit of... an individual
                  Indian which are deposited or invested pursuant to the Act of June 24, 1938." 25 U.S.C.  401 l(a).
                  As described above, Interior Defendants' Plan fully comports with this accounting obligation, as well
                  as the Court's prior orders, by establishing an appropriate and reliable method for Interior Defendants
                  "to provide eligible IIM account holders.., a history of all transactions in their accounts back to the
                  inception of their accounts or to the passage of the Act of June 24, 1938, whichever is later."
                  Historical Accounting Plan at II-2. In essence, this method entails gathering relevant and available

                         2o As noted below, Plaintiffs' Plan is very imprecise. Thus, pending further discovery,
                Defendants are not in a position to address many of the Plan's details, which as yet remain
                unclear. Accordingly, Defendants focus in the following pages on the Plan's overarching
                structural flaws. That Defendants' comments on Plaint/frs' Plan are focused in this manner,
                however, should not be read as an approval sub silentio of all aspects of Plaintiffs' Plan which
                they do not address.
                                                                            32

                     trust records and using these records to verify the accuracy of the account activity in the various kinds
                   of IIM accounts.
                            As outlined in their Plan, Interior Defendants intend to rely on forensic accounting and
                   statistical sampling techniques in only two circumstances. First, as Interior Defendants have
                   acknowledged, "[i]t is certain that some gaps in the transaction history or in records and
                   documentation will be encountered during the historical accounting." Id__.._. at III-13. To address such'
                   gaps, Interior Defendants plan to employ forensic accounting methods. Second, as detailed above,
                   Interior Defendants have recognized (and Congress has expressed great concern) that using
                   transaction-by-transaction techniques to veri fy the accuracy of each transaction in Land-based IiM
                                                                                                                                                   i
                                                                                                                                                                                                                                                                                                                                  i
               accounts would prove enormously (if not prohibitively) expensive and time-consuming. Accordingly,        .j
                  in verifying the accuracy of the account activity in Land-based IIM accounts, Interior Defendants
                  intend to undertake a transaction-by-transaction reconciliation of all transactions of $5,000 or more,
                  and to rely on statistical sampling as the basis for verifying the accuracy of transactions of lesser
                  value. See id. at Ill-6 - III-8. In sum, Interior Defendants' Plan uses actual trust records to assess the
                  accuracy of account activity and departs from this method only when necessary to fill gaps in the
                  records and when considerations of cost and timeliness leave no other reasonable choice.
                           In sharp contrast, Plaintiffs' Plan begins with the premise that an historical accounting based
                  on actual trust records is impossible and thus relies entirely on various estimating techniques.
                  Plaintiffs cite Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co. v.
                  Carmichael, 526 U.S. 137 (1999), to try to clothe these techniques in the mantle of science. See
                  Plaintiffs' Plan at 6-7. However, the simple t:act is that, regardless of whether Plaintiffs' estimating

                                                                           33

                     techniques meet these standards for the admissibility of expert testimony, TM an approach that uses
                   actual trust records (to the extent these are available) is necessarily superior to one based almost
                   entirely on assumptions and extrapolations. Not only is this point self-evident, but it is also made
                   very clearly by one of the main sources on which Plaintiffs rely to demonstrate that Indian trust
                   records are, in their view, unavailable and that an historical accounting is therefore impossible: Paul
                   Stuart, Nations, Within A Nation, Histg...rical Statistics of Americ..an Indians (1987). See Plaintiffs'
                   Plan at 5. The paragraph cited by Plaintiffs concludes with the following sentence, which, not
                   surprisingly, they fail to include in their analysis: "[O]ne either uses such data as may be available
                   and learns something, however inadequate, or abjures such data and learns nothing." Stuart at 2 (Ex.
                   12) (internal quotation marks omitted).                                                                                  _I
                           Because the United States is the trustee of the IIM trust fund, trust records within its
                  possession or control constitute the best source of records for undertaking an historical accounting.
                  Nonetheless, claiming that "individual Indian trust data available from the trustee-delegate" is
                  "missing, unreliable, incomplete and misleading," Plaintiffs state that their "Plan has sought to use
                  other data sources in every instance possible. ''22 Plaintiffs' Plan at 39. Plaintiffs manage to avoid

                         2_ Although Plaintiffs cite Daubert and Kumho Tire, they fail to demonstrate or even
                meaningfully discuss how their various "methodologies" actually meet the evidentiary
                requirements set forth in these cases. Thus, Defendants express no view at this time as to
                whether these methodologies meet the Daubert and Kumho Tire requirements.
                         22 To the extent even Plaintiffs require concrete data to plug into their various estimating
                techniques, their Plan is, as elsewhere, remarkably imprecise about the actual source of this data.
                However, despite their asserted effort to avoid relying on "individual Indian trust data available
                from the trustee-delegate," it is clear that their Plan relies significantly on such government data.
                Se_, Plaintiffs' Plan at 44-45 nn. 88, 90-92, 94-95 (citing reports issued by the U.S.
                Geological Survey, the U.S. Bureau of Mines, and the Secretary of the Interior); id....=, at 47 (stating
                that "the following sources were used," inter alia, to estimate "[r]evenue from timber production
                derived from Allotted Lands": "Narrative Annual RepOrts of the Indian Commissioner," "BIA
                agency reports from the National Archives," "Forestry section of the Annual reports," "Annual
                                                                           34

                      relying on tIM trust records by relying instead on "methodologies" that seek to estimate in sweeping
                    style the aggregate revenues or royalties generated by the (estimated) sum total of allotted lands.
                            Their method of calculating aggregate oil and gas royalties is representative. First, for any
                   given reservation, they "estimat[e] historical production volumes" ofoil and gas. Id__=. at 42. Second,
                   they "apply[] historical price estimates" to this estimated volume and thereby derive the reservation's
                   estimated total revenues from oil and gas. Id.____. Third, "by applying historical royalty rates to total
                   revenues," they estimate the reservation's total royalties from oil and gas. Id._=. Fourth, they estimate
                   the percentage of land on the reservation 23 that is allotted and thereby derive an "allotted land
                   percentage." Id._._. at 41-42. Finally, they multiply total oil and gas royalties by this allotted land
                                                                                                                                                   .!

                                          percentage and thereby derive their estimate of the sum total ofoil and gas royalties on that
                   reservation's allotted lands.
                           Plaintiffs' basic methodology conflicts with the requirements of the 1994 Act, as well as the
                   Court's prior orders, and is fundamentally flawed. First, their methodology fails to take into account
                  whether rights to a resource are, in fact, owned by individual allottees, the tribe, or some other non-
                  Indian entity. In other words, as described above, Plaintiffs' proposal is to estimate the total royalties
                  from a resource earned on reservation land and then to multiply this amount by an "allotted land
                            Ct    ''
                                        percenta,e,  thus assuming that rights to the resource are necessarily spread pro rata among all the

                forestry and grazing reports").
                         23 Given the extraordinarily vague language that Plaintiffs' Plan employs, Defendants
                cannot be certain that they have correctly understood the meaning of the term "allotted land
                percentages," on which, as described above, Plaintiffs' Plan greatly relies. Defendants believe
                that this term refers to the (estimated) percent of land per r.eservation that is allotted. It is
                possible, however, that Plaintiffs intend "allotted land percentages" to refer to the (estimated)
                percent of Indian land throughout..t..he United States that is allotted.
                                                                            35

                     reservation's landowners (individual allottees, the tribe, and others). However, this assumption is
                   patently false.
                            Consider, for example, the Nez Perce Indian Reservation in idaho. As of 1996, of the
                   reservation's total acreage, 85,248 acres were tribally owned, 48,298 acres were held in allotments,
                   36,950 acres were held in federal trust, and a striking 664,752 acres were owned by non-Indians. Se_.__e
                   Veronica E. Velarde Tiller, American Indian Reservations and Trust Areas 338 (Washington, D.C.:
                   U.S. Department of Commerce, 1996) (Ex. 13). Since Plaintiffs' methodology, as set forth in their
                   Plan, would fail to take into account the exact location of resources, such as mines, on the Nez Perce
                   reservation- and would thus fail to determine the rightful owners of any proceeds from these mines-
                                                                                                                                                  !
                   it would lead to grave errors in estimating royalties specifically attributable to allotted lands.
                                                                                                                                                  !
                           Likewise, Plaintiffs' Plan would produce inaccurate results in estimating royalties from oil
                  and gas production because it fails to distinguish between the ownership of surface and sub-surface
                  rights. For example, the i919 Indian Appropriations Act provided that "any and all minerals,
                  including coal, oil and gas, are hereby reserved for the benefit of the Blackfeet Tribe of Indians until
                  Congress shall otherwise direct." 4 Charles J. Kappler, Indian Affairs: Laws & Treaties 208
                  (Government Printing Office, 1929) (Ex. 14). As a result of this statute, the tribe may own mineral
                  rights even where the surface rights for the land on which the production well is located belong to an
                  individual allottee. Thus, Plaintiffs' methodology of simply applying a ratio of allotted to unallotted
                  land would lead, on reservations such as the Blackfeet, to gross inaccuracies in estimating aggregate
                  allotted oil and gas royalties belonging to the reservation's IIM account holders.
                          Not only does Plaintiffs' Plan falsely assume that rights to the proceeds from any given
                 resource are necessarily spread pro rata among all the reservation's landowners, but it aIso wrongly
                 presumes that "historical royalty rates" provide a sound basis for estimating a reservation's total
                                                                            36

                     royalties from that resource. Consistent with the highly vague and imprecise nature of their entire
                   Plan, Plaintiffs nowhere explain the basis on which they propose to calculate "historical royalty
                   rates," but presumably this term refers to an average of rates paid for a particular resource at a
                   particular time. There is little reason to conclude, however, that such an average can serve as a viable
                   proxy for royalties actually paid on reservation lands, because royalty rates for resources found on
                   Indian land are frequently established not by market forces, but instead by regulations issued by the
                   Department of the Interior. See, e.g., Royalty Management, 30 C.F.R.  206.50 et seq. (Indian Oil);
                   30 C.F.R.  206.171 .e.t. seq. (indian Gas).
                           In short, Plaintiffs' Plan completely ignores legal, economic and historical reality and thus is
                                                                                                                                                  i
                   in no way suited to accomplishing the accounting of"funds.., deposited or invested," 25 U.S.C.             .i
                  40I l(a), that Defendants owe to IIM trust account holders. Indeed, as described below, Plaintiffs'
                  Plan is, in all but name, a claim for money damages, rather than a method for accounting to IIM
                  account holders. It proposes that the Court declare that Defendants owes allottees, as a body,
                  immense sums of money, which Plaintiffs' representatives will worry about distributing at some later
                  date, in some as yet undetermined manner. Because Plaintiffs' Plan is really a claim for money
                  damages, rather than a method for accounting-to IIM account holders, it not only fails to comport with
                  Defendants' obligation to account, but also constitutes relief that is beyond the scope of this Court's
                 jurisdiction and that Plaintiffs represented to the Court they did not seek. See Cobell v. Babbitt, 30 F.
                  Supp. 2d 24, 39 (D.D.C. 1998) (holding that the Court has jurisdiction over this litigation pursuant to
                  the APA's waiver of sovereign immunity, only upon concluding that, "[g]iven the allegations
                 contained in the Complaint and, importantly, certain representations of the plaintiffs' counsel, ... the
                 plaintiffs do not seek money damages").

                                                                           37

                               That Plaintiffs' Plan is really a disguised claim for alleged money damages is evident, first,
                   from their own assertion that an accounting is impossible. To the extent Plaintiffs (wrongly) claim
                   that an accounting is impossible, they are necessarily of the view that, whatever their Plan may be, it
                   is clearly not a method for accounting.
                            More importantly, their Plan contains numerous references to alleged breaches of fiduciary
                   duty by the United States - in particular, (t) mismanagement of the underlying IIM trust assets, and'
                   (2) misappropriation oflIM trust funds- that call out for relief in the form of money damages. For
                   example, Plaintiffs complain that the United States permitted "23 natural resources companies to
                   underpay royalty obligations that they owed for the production of oil and gas on Indian trust lands. ''24

                                                                                                                                                                                  !
                   Plaintiffs' Plan at 12. Similarly, they assert that "Individual Indian Trust Funds Have Been
                                                                                                                                                  :_
                   Misappropriated. ''25 Id__._. at 10. Such claims for mismanagement of the underlying IIM trust assets and

                         24 Not only does this statement suggest a claim for mismanagement of the underlying IIM
                 trust assets, but, in addition, it utterly fails to distinguish between allotted and tribal trust lands.
                         25 In support of this claim, Plaintiffs, once again, rely on snippets of information so far
                 removed from any context that it is all but impossible to assess their true import. For example,
                Plaintiffs' extensive citation of the July 7, 1999 trial transcript of the Commissioner, Financial
                Management Service, is particularly misleading as it suggests that various concerns they raised
                regarding the Department of the TreasurY'} management ofllM funds have yet to he addressed.
                However, Treasury entered a stipulation on July 6, 1999 which "allows Interior to invest any
                available funds omitted from its overnight investment request as if they had been invested the
                previous business day." Cobell, 91 F. Supp. 2d at 22. Likewise, "Treasury agreed [during the
                trial] to conduct a study of its IIM trust check negotiation practices," id..: at 23, and it filed this
                Study with the Court on June 1, 2000, ,see Financial Management Service, Study of Check
                Negotiation Practices for Office of Trust Funds Management-Issued Checks ("Study of Check
                Negotiation Practices") (May 31, 2000), filed as Att. K to Second Quarterly Report on Actions
                Taken by the Department of the Treasury to Retain IIM-Related Trust Documents Necessary for
                an Accounting (June 1, 2000). Indeed, Plaintiflk themselves refer to this study in an unrelated
                discussion, ill which they observe that "[thc Study of Check Negotiation Practices] found such
                checks totaled approximately $177 million" and that, "[n]otwithstanding time period differences,
                th[is] figure is grossly inconsistent with the July 2002, Department of interior Historical
                Accounting Plan which reports $336.6 million of disbursements from 1/l/99-12/31/99." See
                Plaintiffs' Plan at 51 n.99. Plaintiffs conclude from this discrepancy that "only a fraction of the
                                                                            38

                     misappropriation of I/M trust funds are clearly claims for money damages, rather than reliefwhich
                   can be afforded under the APA, and are thus beyond this Court's jurisdiction? Likewise, these
                   claims contradict Plaintiffs' own statements about the scope of this lawsuit. Indeed, precisely
                   because these claims sound in law and are therefore beyond the Court's jurisdiction, Plaintiffs
                   themselves have previously stated that "this action is not one to review the United States'
                   management of the underlying trust assets." Plaintiffs' Revised Memorandum of Points and
                   Authorities in Support of Motion for Class Certification, at 6 (Jan. 14, 1997) (emphasis added).
                   Furthermore, in holding that this is an APA action to require an accounting rather than an action for
                   money damages, the Court made a point of striking the following allegations from Plaintiffs'
                   Complaint:
                                                                                                                                                  i
                           (1) 'iT]he true totals would be far _eater than those amounts, but for the breaches of
                           trust herein complained of.'...; (2) '[Defendants] have lost, dissipated, or converted
                           to the United States' own use the money of the trust beneficiaries.'...; (3) 'and to
                           direct [the defendants] to restore trust funds wrongfully lost, dissipated, or converted.'
                           ..; (4) 'Failure to exercise prudence and observe the requirements of law with
                           respect to investment and deposit of IIM funds, and to maximize the return on
                           investments within the constraints of taw and prudence.'
                  30 F. Supp. 2d at 40 n. 18 (quoting Plaintiffs' Complaint) (internal citations omitted).

                receipts of the Individual indian Trust were disbursed in 1999.' Id_.__. One obvious explanation for
                this "discrepancy," however, is that, as the very language quoted by Plaintiff reveals, the Study
                of Check Negotiation Practices determined that approximately $177 million in '"tim U.S.
                Treasury_ checks [were] issued.'" Id____. (quoting Study of Check Negotiation Practices (emphasis
                added)). In contrast, Interior's July 2002, Accounting Plan "reports $336.6 million of
                disbursements," id____. (emphasis added), rather than $336.6 million in IIM U.S. Treasury_ checks,
                thus including electronic funds transfers in its calculation of total disbursements.
                         2_, Apparently recognizing that their claims that IIM funds have been misappropriated and
                subject to fraud have no place in this litigation, Plaintiffs attempt to sweep these into their
                argument concerning the destruction of IIM trust records. Thus, Section A of their Plan appears
                under the nonsensical heading, "Indian Trust Data is Subject to Adulteration, Misappropriation
                and Fraud." Plaintiffs' Plan at 8. Clearly, as later pages reveal, it is not trust records, but trust
                funds, which Plaintiffs claim were misappropriated and subject to fraud.
                                                                            39

                              Not only do Plaintiffs raise claims that clearly point to relief in the form of money damages,
                   but indeed, they go further and supply the method for calculating such damages. As described above,
                   their Plan is, in their own words, designed "to quantify the monies generated from individual Indian
                   trust lands ('Allotted Lands')." Plaintiffs' Plan at 39. Rather than using IIM trust records to identify
                   the transactions that passed through particular IlM accounts, Plaintiffs' Plan estimates aggregate IIM
                   funds. Accordingly, Plaintiffs' Plan concludes with a discussion of the reliability of the proxies used
                   to estimate monies generated by allotted lands, which reads as if it were drawn from a brief filed in a
                   suit for money damages. Id. at 53-55. In fact, in this discussion, Plaintiffs expressly rely upon
                   excerpts from two damages treatises. Id. at 54-55 and Pis.' Exs. 42 and 43 (citing and quoting from 2
                                                                                                                                                  t
                R. Dunn, Recovery_ of Damages for Lost Profits (5th ed. 1998), and P. Gaughan, Measuring                    i
                   Commercial Dam...ages (2000)).
                           Finally, as is typical in damages class actions, Plaintiffs propose to rely on a (yet unspecified)
                  mechanism for distributing the aggregate monies they have calculated by means of their various
                  estimating techniques. Thus, Plaintiffs do not purport to identify the particular individuals to whom
                  the aggregate funds belong and the precise amount to which each of these (unidentified) individuals is
                  entitled. Instead, they devote a total of three short paragraphs of their fit2y-five page filing to the ali-
                  important question of "distribution," and the only guidance they have to offer is that they "have
                  discussed the requirements of the [distribution] project with prospective experts and believe that
                  qualified experts can be retained." Plaintiffs' Plan at 52. In short, rather than advancing a plan for
                  accounting to individual IIM account holders, they assure the Court that unidentified experts will,
                  deus ex machina, swoop in with some unidentified, yet superior method of assigning particular
                  amounts of money to particular individuals - and thus divide up what are in essence money damages.

                                                                            4O

                               B.      Defendants Have Demonstrated That Sufficient IIM Trust Records Are
                                     Available To Undertake The Historical Accounting Set Forth In Interior
                                     Defendants' Plan.
                            Plaintiffs' argument that an historical accounting is impossible and that the Court must
                   therefore adopt their Plan hinges on their claim that the necessary I/M trust records simply do not
                   exist. Accordingly, they devote approximately 70% of their brief (the first thirty-eight pages) to their
                   effort to establish that the requisite IIM trust records are lacking. Nowhere in these thirty-eight pages,
                   however, do Plaintiffs identify any specific types of records that are lacking to accomplish any
                   particular component of the historical accounting. Instead, they cobble together, in anecdotal fashion,
                   snippets of quotes from various sources identifying deficiencies in Interior Defendants' preservation
                   and maintenance of trust records. That deficiencies exist, however, simply does not demonstrate that          i
                   the information needed to undertake a reliable historical accounting, as described in Interior
                  Defendants' Plan, is lacking.
                           Plaintiffs boldly assert that "[d]uring the 116 years of Trust management and administration,
                  the majority of source and related Trust documents have been destroyed." Plaintiffs' Plan at 16. In
                  support of this extraordinary assertion, Plaintiffs cite ten specific instances in which Defendants have
                  reported document destruction to the Court. No doubt recognizing that ten cases in which particular    h
                  sets of documents were destroyed fails to establish the destruction of the "majority" of all I[M trust
                  records that ever existed, Plaintiffs then observe in a footnote that the poor conditions in which some
                  trust records have been kept demonstrates that "massive and un-quantifiable amounts of Trust records
                  have been lost." Id.____. at 16 n.28.
                          hlterior Defendants acknowledge, as they have in the past, that some JIM trust records have
                 been lost and others have not been maintained in conditions best suited to ensure their preservation.
                 However, the fact that some IIM trust records have been lost or maintained in poor conditions does
                                                                           41

                     not establish that "the majority of source and related Trust documents have been destroyed."
                   Furthermore, Interior Defendants vigorously object to Plaintiffs' lengthy citation of reports issued by
                   the Special Master in April 2002 to sustain their claim that IIM trust records "continue to be at risk of
                   destruction" to the extent they were in the past. Id__._. at 18. As Plaintiffs are well aware, Interior
                   Defendants have made substantial improvements since April 2002 in their trusbrecords program,
                   under the guidance of Assistant Deputy Secretary Abraham E. Haspel and Director of Office of Trust
                   Records ("OTR") Ethel J. Abeita. See Letter from Alan L. Balaran, Special Master, to Amalia D.
                   Kessler, U.S. Department of Justice, 2 (December 2, 2002) (Ex. 15) (stating that "OTR, under the
                   leadership of Acting Director27 Ethel Abeita and Assistant Deputy Secretary Abraham Haspel[], has
                                                                                                                                                   i

                                         undergone a dramatic improvement").                                                                                   J
                           As for Plaintiffs' assertion that "The Government's Own Consultants State that Massive and
                  Un-quantifiable Amounts of Individual Indian Trust Records Have Been Destroyed Since the
                  Creation of the Trust," this too is unsubstantiated. Plaintiffs' Plan at 17. Plaintiffs base this broad
                  assertion on a highly selective reading of a Report 28 produced by one of Defendants' consultants, in
                  which they isolate out of context various statements concerning incidents of document destruction.
                  Contrary to their claim that this Report reveals the destruction of massive amounts of I1M trust
                  records, the Report's central thrust is that, while clear evidence of document destruction by Executive

                         27 Ms. Abeita was appointed Acting Director of OTR on July 29, 2002 and became
                Director on December 19, 2002. See Activity Report, Office of Trust Records at 3 (Dec. 2002),
                attached to United States' Status Report to the Special Master of January 21,2003.
                         2STo be precise, and as Interior Defendants have previously observed, "it]he Report that
                Plaintiffs term the 'Useless Papers Report' (EY0002325-EY0002455) is actually a compilation of
                two separate Morgan and Angel reports ... that was [mistakenly] produced to Plaintiffs as a
                single report in the November 16, 2001 response to Plaintiffs' discovery request to Ernst and
                Young." See Defendants' Opposition to Plaintiffs' February 15, 2002 Motion for Sanctions and a
                Contempt Finding Pursuant to Fed. R. Civ. P. 56(g), at 17 (filed Mar. I, 2002).
                                                                            42

                     Branch agencies exists, little evidence exists that the destroyed documents included IIM trust records.
                   See, e,g., EY0002332 (Ex. t6) ("[W]ithout documentation specifying that sundry Indian trust fund
                   records actually were destroyed by fire, or by other means associated with inadequate guardianship, or
                   by any involuntary instrument, one cannot be certain that su_ch destruction took place." (emphasis
                   added)); EY0002345 ("Although the historical record demonstrates diligence and regularity with
                   respect to destruction [pursuant to an 1889 act mandating destruction of"useless papers"], the
                  Executive Departments of the Federal government.., were typically imprecise with regard to what
                  they were recommending for destruction."); EY0002349 ("None of these reports [concerning
                  documents submitted for destruction] appears to have included Indian trust fund documents in general
                                                                                                                                                  1
              and individual Indian moneys reports in particular."); EY0002352 (stating that even after the passage         i
                  ora 1934 statute creating the National Archives and repealing the I889 Useless Papers Act, "the
                  ensuing years produced little specificity with regard to items proffered for destruction"); EY0002361
                  (stating that the Bureau of Indian Affairs' first records disposition schedule "specifically excluded
                  disposal of'Indian Service Special Disbursing Agent' records or 'originals'"); EY0002363 ("[A]t
                  least by 1945 the GAO had developed instructions that would have prevented the destruction of
                  Ind;an trust records.") .............
                          Plaintifi_' assertion of wholesale destruction of IIM trust records is ultimately belied,
                  however, not only by their failure to establish that such destruction occurred, but more importantly,
                 by the simple fact that Interior Defendants have found sufficient records to commence the historical
                 accounting set forth in their Plan. Thus, the professional historians retained by Interior's Office of
                 Historical Accounting ("OHTA") to assist with Interior Defendants' efforts to provide accountings to
                 IIM account holders are firmly of the view that there are sufficient itM records available for Interior
                 Defendants to undertake the accounting described in their Plan. According to Alan S. Newell, a
                                                                           43

                     professional historian with almost 30 years experience "working in federal Indian records, the volume
                   of relevant data that can be derived from existing historic federal documents supports the Department
                   of the Interior's implementation of a plan to perform a historical accounting of IIM funds." See
                   Declaration of Alan S. Newell (Ex. 3) '_ 10; see also id. at _ 7 ("A vast quantity of federal documents
                   (from the Bureau of Indian Affairs as well as from other agencies) is available in national and
                   regional repositories for use in performing a historical accounting of Individual Indian Money. To
                   dismiss categorically these documents as incomplete, inaccurate and therefore of little or no value
                   would be a mistake."). Likewise, Edward Angel, an historian with "twenty years of professional
                   research experience with Federal records relating to Native Americans" states that this experience
                  "leads me to support the implementation of the plan developed by OHTA to perform an historical
                  trust accounting as an approach that is based upon solid historical methodology, along with historical
                  research that is supported by skilled forensic procedures and accounting tools." See Declaration of
                  Edward Angel (Ex. 2) _ 17.
                           That sufficient IIM records exist to proceed with the historical accounting presented in
                  Interior Defendants' Plan is the considered view, not only of the historians hired to assist OHTA, but
                  also of the forensic accountants who have been employed for this purpose. Thus, Robert L. Brunner,
                  a principal in KPMG LLP's Forensic practice, who has "worked on a number of projects and disputes
                  relating to trust administration... [in which] we were able to successfully reconstruct historical trust
                  account activity, and verify transactions back to available hard-copy records," see Declaration of
                  Robert L. Brunner (Ex. 1) 7[ 5, states that "[c]onsidered together, the existing electronic and hard copy
                  records appear to comprise a relatively complete history of the ILM Trust," id, at 5 11. For this
                  reason, he concluded that "[t]here are sufficient electronic and paper records to expect that the overall

                                                                            44

                     approach proposed by Interior is feasible and will provide IIM beneficiaries with an accurate
                   statement of account." Id...._. at '_[ 13.
                                                                    CONCLUSION
                           We respectfully submit that the Court lacks authority to hold the Phase 1.5 trial for the
                   purpose of reviewing the Historical Accounting and Trust Management Plans and thereupon entering
                   injunctive reliefi However, if the Court proceeds down this path, it is clear that Interior Defendants'
                  Historical Accounting Plan, unlike that of the Plaintiffs, describes an approach to trust reform that
                  comports with the Defendants' obligation to perform an accounting.
                           Accordingly, the Court should enter partial summary judgment that, as a matter of law,
                  Interior Defendants' Historical Accounting Plan describes an approach to trust reform that comports
                  with the Defendants' obligation to perform an accounting, and Plaintiffs' Plan does not. Dated:
                  January 31, 2003                                Respectfully submitted,
                                                                       ROBERT D. McCALLUM, JR.
                                                                       Assistant Attorney General
                                                                       STUART E. SCHIFFER
                                                                       Deputy Assistant Attorney General
                                                                       J. CHRISTOPHER KOHN
                                                                       Director
                                                                        f        _      rx
                                                             f_
                                                                                                                                                           S AN__. P. SPooNER
                                                                      Deputy Director
                                                                      D.C. Bar No. 261495
                                                                      JOHN T. STEMPLEWICZ
                                                                      JOHN WARSHAWSKY
                                                                      CYNTHIA L. ALEXANDER
                                                                      AMALIA D. KESSLER
                                                                      TIMOTHY E. CURLEY
                                                                      Commercial Litigation Branch
                                                                      Civil Division
                                                                      P.O. Box 875
                                                                      Ben Franklin Station
                                                                      Washington, D.C. 20044-0875
                                                                      (202) 514-7194

                                                                           45

                                                  IN THE UNITED STATES DISTRICT COURT
                                                   FOR THE DISTRICT OF COLUMBIA

                 ELOUISE PEPION COBELL, et al_:,                   )
                                                                               )
                    Plaintiffs,                                          )
                                                                               )
                    v.                                                   )       Case No. 1:96CV01285
                                                                               )       (Judge Lamberth)
                 GALE A. NORTON, Secretary of the Interior, et al__:., )
                                                                               )
                    Defendants.                                       )
                                                                               )
                        DEFENDANTS' STATEMENT OF MATERIAL FACTS AS TO WHICH
                             NO GENUINE ISSUE EXISTS FOR MOTION FOR PARTIAL SUMMARY
                              JUDGMENT THAT INTERIOR'S HISTORICAL ACCOUNTING PLAN                             i
                          COMPORTS.WI.TH THEIR OBLIGATION TO PERFO ...RM AN ACCOUNTING                        :_
                          Pursuant to Local Civil Rule 7.1 (h), Defendants submit the following Statement of
                 Material Facts as to Which No Genuine Issue Exists, with regard to Defendants' Motion for
                 Partial Summary Judgment That Interior's Historical Accounting Plan Comports With Their
                 Obligation to Perform an Accounting.
                          1.      The Secretary of the Interior and the Assistant Secretary of Interior-Indian Affairs
                 ("Interior Defendants") serve as trustee-delegates of the Federal Government with regard to the
                 administration of Individual Indian Money ("IIM") trust accounts. E.__., Cobell v. Norton., 240
                F.3d i081, 1086 (D.C. Cir. 2001).
                         2.      By its Order filed September 17, 2002, this Court ordered "that the Interior
                Defendants shall file with the Court and serve upon plaintiffs a plan for conducting a historical
                accounting of the ILM trust accounts." Cobell v. Norton, 226 F. Supp. 2d 1, 162 (D.D.C. 2002).
                         3.      On January 6, 2003, Interior Defendants filed with the Court their "Historical

                                                                       -1-

                   Accounting Plan for Individual Indian Money Accounts," pursuant to the Court's September 17,
                 2002 Order. Interior Defendants' Plan asserts that, upon completion of the historical accounting,
                 they will be in a position to provide the holder of each IIM account covered by the Plan an
                 Historical Statement of Account detailing the account transaction history. See Interior
                 Defendants' Plan at I-1.
                          4.      On January 6, 2003, Plaintiffs filed with the Court "Plaintiffs' Plan for
                 Determining Accurate Balances in the Individual Indian Trust." Plaintiffs' Plan asserts that the
                 historical accounting, which Plaintiffs claim the United States owes to individual Indian trust
                 beneficiaries, is impossible. See Plaintiffs' Plan at 7.
                 Dated: January 31, 2003                       Respectfully submitted,
                                                                     ROBERT D. McCALLUM, JR.
                                                                     Assistant Attorney General
                                                                     STUART E. SCHIFFER
                                                                     Deputy Assistant Attorney General
                                                                     J. CHRISTOPHER KOHN
                                                                     Director

                                                                                          c O.z.____
                                -Dt_b_ P. sPoc}'NER
                                                                     Deputy Director
                                                                     D.C. Bar No. 261495
                                                                     JOHN T. STEMPLEWICZ
                                                                     Senior Trial Counsel
                                                                    JOHN WARSHAWSKY
                                                                     CYNTHIA L. ALEXANDER
                                                                    AMALIA D. KESSLER
                                                                    TIMOTHY E. CURLEY
                                                                    Trial Attorneys
                                                                    Commercial Litigation Branch
                                                                    Civil Division
                                                                    P.O. Box 875
                                                                    Ben Franklin Station
                                                                    Washington, D.C. 20044-0875
                                                                    (202) 514-7194

                                                                      -2-

                                                   IN THE UNITED STATES DISTRICT COURT
                                                   FOR THE DISTRICT OF COLUMBIA

                 ELOUISE PEPION COBELL, et al.,                   )
                                                                               )
                   Plaintiffs,                                          )
                                                                               )
                   v.                                                   )       Case No. 1:96CV01285
                                                                               )       (Judge Lamberth)
                 GALE A. NORTON, Secretary of the Interior, et al., )
                                                                               )
                   Defendants.                                       )
                                                                               )
                                                  ORDER
                          This matter comes before the Court on Defendants' Motion for Partial Summary                           !
                 Judgment That Interior's Historical Accounting Plan Comports With Their Obligation to Perform
                 an Accounting. After considering that motion, any responses thereto, and the record of the case,
                 the Court finds that Defendants' motion for partial summary judgrnent should be, and hereby is,
                 GRANTED. It is further
                          ORDERED that the Court finds that Interior's Historical Accounting Plan comports with
                 Defendants' obligation to perform an accounting, and it is further
                         ORDERED that the Court finds that Plaintiffs' Plan for Determining Accurate Balances in
                 the Individual Indian Trust does not comport with Defendants' obligation to perform an
                accounting.
                         SO ORDERED this    : day of                     ,2003.

                                                                              ROYCE C. LAMBERTH
                                                                              United States District Judge

                   ce:

                        Sandra P. Spooner
                 John T. Stemplewicz
                 Cynthia L. Alexander
                 Commercial Litigation Branch
                 Civil Division
                 P.O. Box 875
                 Ben Franklin Station
                 Washington, D.C. 20044-0875
                 Fax (202) 514-9163
                 Dennis M Gingold, Esq.
                 Mark Brown, Esq.
                 1275 Pennsylvania Avenue, N.W.
                Ninth Floor
                 Washington, D.C. 20004                                                                                                    i
                Fax (202) 318-2372                                                                                                          i
                Keith Harper, Esq.
                Native American Rights Fund
                 1712 N Street, N.W.
                Washington, D.C. 20036-2976
                Fax (202) 822-0068
                Elliott Levitas, Esq.
                 1100 Peachtree Street, Suite 2800
                Atlanta, GA 30309-4530
                Alan L. Balaran, Esq.
                Special Master
                1717 Pennsylvania Avenue, N.W.
                I2th Floor
                Washington, D.C. 20006
                Joseph S. Kieffer, III
                Special Master-Monitor
                420 - 7 th
                                     Street, N.W.
                Apartment 705
                Washington, D.C. 20004

                                                             CERTIFICATE OF SERVICE
                          I declare under penalty of perjury that, on January 31, 2003 1 served the foregoing
                 Defendants' Motion for Partial Summary Judgment That Interior's Historical Accounting Plan
                 Comports with Their Obligation to Perform an Accounting and Supporting Memorandum of
                 Points and Authorities and Defendants' Statement of Material Facts as to Which No Genuine
                 Issue Exists for Motion for Partial Summary Judgment That Interior's Historical Accounting
                 Plan Comports with Their Obligation to Perform an Accounting by hand, in accordance with
                 their Agreement of January 31, 2003, upon:
                 Keith Harper, Esq.                                       Dennis M Gingold, Esq.
                 Native American Rights Fund                          Mark Kester Brown, Esq.
                 1712 N Street, N.W.                                     1275 Pennsylvania Avenue, N.W,
                 Washington, D.C. 20036-2976                         Ninth Floor
                 (202) 822-0068                                           Washington, D.C. 20004
                                                                              (202) 318-2372
                by U.S. Mail upon:
                                                                                                                                                  i
         Elliott Levitas, Esq.
                 1100 Peachtree Street, Suite 2800
                Atlanta, GA 30309-4530

                First 25 pages by facsimile; a complete copy to be delivered by hand the morning of February 3,
                2003 upon:
                Alan L. Balaran, Esq.
                Special Master
                1717 Pennsylvania Avenue, N.W.
                12th Floor
                Washington, D.C. 20006
                (202) 986-8477

                and by Hand upon:
                Joseph S. Kieffer, III
                Special Master Monitor
                420 7 _h Street, N.W.
                Apartment 705
                Washington, D.C. 20004