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' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 
FOLLOWING THE PHASE 1.5 T RIAL
I. PROPOSED FINDINGS OF FACT 
A. Background 
1. Defendants, the Secretary of the Interior, the Assistant Secretary of the Interior - 
Indian 
Affairs, and the Secretary of the Treasury, are the trustee-delegates of the United States with 
regard to 
the administration of Individual Indian Money ("IIM") trust accounts. See, e.g., Cobell v. 
Norton, No. 
02-5374, 2003 WL 21673009, at *1 (D.C. Cir. 2003); Cobell v. Norton, 240 F.3d 1081, 1086 
(D.C. Cir. 2001); Cobell v. Babbitt, 91 F. Supp. 2d 1, 9 (D.D.C. 1999). 
2. Plaintiffs are a class of "present and former beneficiaries of Individual Indian Money 
accounts." Order Certifying Class Action, at 2-3 (Feb. 4, 1997). 
3. Plaintiffs "seek to enforce their statutory right [as IIM account holders] 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. Babbitt, 91 F. Supp. 2d at 27. 
4. The American Indian Trust Fund Management Reform Act of 1994 ("1994 Act"), 
requires the Secretary of the Interior to "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 the Act of June 24, 1938 (25 U.S.C. 162a)." 1994 Act, Pub. L. No. 103- 
412, 102(a), 108 Stat. 4239, 4240 (1994), codified at 25 U.S.C.A. 4011(a). 
5. By Order of September 17, 2002, this Court directed "that the Interior Defendants 
shall file with the Court and serve upon plaintiffs a plan for conducting a historical accounting 
of the IIM 
trust accounts." Cobell v. Norton, 226 F. Supp. 2d 1, 162 (D.D.C. 2002), vacated in part by No. 
02- 
5374, 2003 WL 21673009 (D.C. Cir. July 18, 2003). The Court also required Interior Defendants to 
"file with the Court and serve upon plaintiffs a plan for bringing themselves into compliance with 
the 
fiduciary obligations that they owe to the IIM beneficiaries." Id. 
6. In compliance with the Court's September 17, 2002 Order, Interior Defendants filed 
their Historical Accounting Plan for Individual Indian Money Accounts ("Interior's Historical 
Accounting Plan") and their Fiduciary Obligations Compliance Plan on January 6, 2003. 
7. On January 6, 2003, Plaintiffs filed a Plan for Determining Accurate Balances in the 
Individual Indian Trust ("Plaintiffs' Revenue Model") and a Compliance Action Plan Together with 
Applicable Trust Standards ("Plaintiffs' Compliance Action Plan with Standards"). 
8. By order of September 17, 2002, the Court scheduled the present "Phase 1.5 trial" 
which the Court stated would "encompass additional remedies with respect to the fixing the system 
portion of this case and approving an approach to conducting a historical accounting of the IIM 
trust 
accounts." Cobell v. Norton, 226 F. Supp. 2d at 162. The Court stated that it "will grant 
further 
injunctive relief to make the defendants correct the breaches of trust declared by the Court and 
stipulated to by the defendants back in 1999." Id. at 146-47. Specifically, the Court stated 
that it 
"plans on entering a structural injunction in this case," and described the goal of such 
injunctions as 
"'not merely to halt a single wrongful practice, but to halt a group of wrongful practices by 
restructuring 
a social institution such as a mental hospital, school, or prison.'" Id. at 146 n.154 (quoting 
Dobbs, Law 
of Remedies (2d ed.) at 7.4(4)). 
B. Interior's Historical Accounting Plan 
1. Overview of Interior's Historical Accounting Plan 
9. Interior has made the performance of an historical accounting of IIM funds a priority. 
In July 2001, the Secretary established the Office of Historical Trust Accounting ("OHTA") to 
"plan, 
organize, direct, and execute the historical accounting of [IIM] accounts." Secretarial Order No. 
3231,
U.S. Department of the Interior 1 (July 10, 2001). OHTA is currently performing the historical 
accounting described in Interior's Historical Accounting Plan. See Interior's Historical 
Accounting 
Plan, at I-1 (Defs.' Ex. 55). 
10. Interior's Historical Accounting Plan describes the Department of the Interior's 
("Interior's") plan for conducting an historical accounting of funds in the IIM trust as required 
by the 
1994 Act. Upon completion of the historical accounting described in the Historical Accounting 
Plan, 
Interior will be in a position to provide to the holder of each IIM account covered by the Plan a 
statement of account showing the opening balance, transaction-by-transaction account history 
(including 
income, receipts, and disbursements), and ending balance, as well as a statement regarding the 
accuracy of those transactions. Interior's Historical Accounting Plan, at I-1, II-2, III-1 
(Defs.' Ex. 55); 
Tr., June 4, 2003, a.m., at 19:23-20:11, 21:14-22:5, 76:25-77:7 (J. Cason); Tr., June 5, 2003, 
a.m., 
at 41:5-14 (J. Cason); Tr., June 26, 2003, p.m., at 24:19-29:4 (R. Swimmer). 
11. In addition to accounting for funds, Interior "intends [at the end of the historical 
accounting process] to be in the position to provide the IIM account holders with information 
regarding 
their land assets as of December 31, 2000 . . . [and] [i]n the future, Interior intends 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." Interior's Historical Accounting Plan, at 2 (Defs.' 
Ex. 
55); Tr., June 4, 2003, a.m., at 22:2-5 (J. Cason); Tr., July 2, 2003, a.m., at 63:2-64:13 (R. 
Swimmer). 
12. Interior's Historical Accounting Plan provides that the accuracy of the transactions 
appearing in the statements of account prepared for account holders will be verified using a 
combination 
of transaction-by-transaction reconciliation to underlying documents and statistical sampling 
techniques. 
Interior's Historical Accounting Plan, at 1, I-1, II-2, III-1 - III-20 (Defs.' Ex. 55). 
13. When the historical accounting work described in Interior's Historical Accounting 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 IIM trust fund system as a whole, and Defendants will have a sound 
basis for 
meeting their accounting obligations in the future. Interior's Historical Accounting Plan, at 2 
(Defs.' Ex. 
55). 
14. Interior's analysis to date suggests that approximately $13 billion has been received 
and 
deposited in IIM accounts since 1909; of this $13 billion "throughput," approximately $12.6 
billion has 
been paid out, and the IIM funds balance as of December 31, 2000 is approximately $415 million. 
Tr., June 4, 2003, p.m., at 24:8-25:10, 29:18-30:16 (J. Cason). 
15. Interior estimates that the historical accounting will take five years and cost 
approximately $335 million. Interior's Historical Accounting Plan, at I-1 (Defs.' Ex. 55); see 
also Tr., 
June 4, 2003, a.m., at 13:3-15:12 (J. Cason). These estimates are based on Interior's experience 
to 
date, but will be affected by factors such as the pace of congressional funding and the relative 
difficulty 
encountered in compiling and indexing records. Tr., June 4, 2003, a.m., at 13:3-15:12 (J. Cason). 
16. The successful implementation of Interior's Historical Accounting Plan is dependent 
upon sufficient appropriations. Interior's Historical Accounting Plan, at I-1 (Defs.' Ex. 55); see also 
Tr., June 4, 2003, a.m., at 13:3-15 (J. Cason). Between $15 and $20 million is available for the 
historical accounting in the fiscal year 2003 budget, and Interior has requested $100 million for 
the 
historical accounting for IIM accounts for fiscal year 2004. Tr., June 4, 2003, a.m., at 15:17- 
16:16 (J. 
Cason). 
2. Scope of Interior's Historical Accounting Plan 
17. Interior's Historical Accounting Plan anticipates that each eligible IIM account holder 
will receive an historical statement of account which includes the account history from the later 
of the 
inception of the account or June 24, 1938 (which is the date specified in the 1994 Act), until 
December 
31, 2000 (unless the statute of limitations requires a different temporal limitation). Interior's 
Historical 
Accounting Plan, at II-2 (Defs.' Ex. 55). If the account was opened before June 24, 1938, the 
balance 
on that date will be the beginning balance for accounting purposes. Tr., June 4, 2003, a.m., at 
79:9-13 
(J. Cason). 
18. Interior 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's Historical Accounting Plan, at II-4 (Defs.' Ex. 55). Account information recorded 
after 
December 31, 2000, is considered current accounting activity and reported on the quarterly 
accounting 
statements provided to IIM account holders. Id. 
19. Defendants have raised statute of limitations and laches defenses that may affect the 
scope of the accounting described in Interior's Historical Accounting Plan, see Defendants' 
Corrected 
Memorandum Of Points And Authorities In Support Of Motion For Partial Summary Judgment 
Regarding Statute Of Limitations And Laches ("Defendants' Statute of Limitations Motion") (Jan. 
31, 
2003) (filed under seal). On April 28, 2003, the Court denied Defendants' Statute of Limitations 
Motion. Cobell v. Norton, 260 F. Supp. 2d 98 (D.D.C. 2003). If the statute of limitations 
ultimately is 
determined to apply as Defendants have argued, Interior will account for all transactions in the 
IIM 
accounts from the later of the inception of an account or October 1, 1984 (rather than June 24, 
1938). 
20. Interior's Historical Accounting Plan provides that an historical accounting will be 
performed for all IIM accounts existing on or after the enactment of the 1994 Act on October 25, 
1994, but not for IIM accounts distributed and closed prior to this date. Interior's Historical 
Accounting Plan, at III-1 (Defs.' Ex. 55); see Defendants' Proposed Conclusions of Law at 
II.C.2.d, 
infra. 
21. Not all revenues generated from Indian trust lands are collected and managed by 
Interior. Interior's Historical Accounting Plan, at II-4 (Defs.' Ex. 55). Some revenues are paid 
directly 
to the Indian landowner by a lessee or other debtor. Id. Interior does not intend to include in 
the 
historical accounting funds that were paid directly to Indian landowners without ever coming into 
Interior's possession because such funds were never "held in trust by the United States" and 
therefore 
are not properly included in an accounting of "all funds held in trust by the United States." 25 
U.S.C.A. 
4011(a); see Defendants' Proposed Conclusions of Law at II.C.2.b, infra. 
22. Interior's Historical Accounting Plan "does not contemplate performing historical 
accounting work for the closed accounts of deceased predecessors" of current IIM account holders 
as
part of the historical accounting effort for those current account holders. Historical Accounting 
Plan, at 
II-3 II-4. Probate orders are presumptively valid because of the due process protections 
afforded 
to interested parties; and questions about the correctness of a property distribution must be 
raised in an 
appropriate proceeding. See id. at II-4; see also Defendants' Proposed Conclusions of Law at 
II.C.2.e, infra. 
23. Defendants' Historical Accounting Plan does not specifically address fractionated real 
property interests removed from the individual Indian trust pursuant to the Indian Land 
Consolidation 
Act, Pub. L. No. 97-459, Title II, 96 Stat. 2515 (1983), amended by Pub. L. No. 98-608, 98 Stat. 
3171 (1984) ("ILCA"). See Tr., June 5, 2003, p.m., at 35:2-22 (J. Cason). ILCA included an 
escheatment provision, which the Supreme Court struck down. See Babbitt v. Youpee, 519 U.S. 234 
(1997); Hodel v. Irving, 481 U.S. 704 (1987). From 1984 until the Youpee decision, a large 
number 
of small, fractionated real property interests each constituting less than two percent of an 
allotted tract 
and incapable of generating at least $100 in annual income escheated to Indian tribes upon the 
death 
of the owner, without compensation. See Cobell v. Babbitt, 91 F. Supp. 2d at 17. 
24. Interior is addressing the ILCA problem and has restored some of the escheated 
interests to the rightful heirs. See Defs.' Ex. 47 (Interior's Status Report to the Court Number 
Thirteen, 
May 1, 2003) at 49, 81; see also Defs.' Ex. 45 (Interior's Status Report to the Court Number 
Eleven, 
Nov. 1, 2002) at 43, 85-89; Defs.' Ex. 43 (Interior's Status Report to the Court Number Nine, May 
1, 
2002) at 58-59; Defs.' Ex. 42 (Interior's Status Report to the Court Number Eight, Jan. 16, 2002) 
at 
102, 104; Defs.' Ex. 22 (DOI Trust Reform: Trust Reform - Final Report and Roadmap, Jan. 24, 
2002) at 50-51. 
25. Defendants' Historical Accounting Plan is not required to address specifically 
fractionated real property interests that were removed from the individual Indian trust by 
escheatment 
pursuant to the Indian Land Consolidation Act ("ILCA"). The Supreme Court invalidated ILCA's 
escheatment provision in Babbitt v. Youpee, 519 U.S. 234 (1997). If and when Interior resolves an 
escheatment that is determined to have been invalid, the impact, if any, on an IIM account will 
depend 
upon a number of factors, including: whether the property interest was revenue-producing; whether 
restoration of the interest is possible; and what form of compensation, if any is owed, will take 
and how 
and when it will be paid. In any event, resolution of these escheatments is a process separate 
from the 
historical accounting and outside the bounds of this lawsuit. If and when that process results in 
funds 
being deposited in an IIM account, Interior must determine how to account to the account holder 
for 
those funds pursuant to the 1994 Act and the Orders of this Court. Accordingly, it is unnecessary 
that 
Interior's Historical Accounting Plan address specifically the escheated real property interests. 
3. Methodology of Interior's Historical Accounting Plan 
26. Interior's Historical Accounting Plan uses the term "reconciliation" to describe a 
process by which source financial documents and related records are examined to determine whether 
a
transaction recorded in an IIM account reflects accurately a proper allocation of collection, 
interest, or 
disbursement of funds. See Interior's Historical Accounting Plan, at I-1, III-1 (Defs.' Ex. 55). 
27. The IIM trust fund contains two distinct types of individual accounts: (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. Interior's Historical Accounting Plan, 
at 1, III- 
1 (Defs.' Ex. 55). 
28. In addition to individual accounts, the IIM trust fund contains 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. Interior's 
Historical Accounting Plan, at III-15 (Defs.' Ex. 55); Tr., June 4, 2003, a.m., at 28:8-29:9 (J. 
Cason). 
29. As of December 31, 2000, there were approximately 42,200 Judgement and Per 
Capita accounts with an aggregate balance of approximately $150 million, which was approximately 
36% of the IIM Trust Fund balance as of that date. Interior's Historical Accounting Plan, at III- 
3
(Defs.' Ex. 55). 
30. As of December 31, 2000, there were approximately 194,000 land-based IIM 
accounts with an aggregate balance of approximately $198 million, which was approximately 48% of 
the IIM Trust Fund balance as of that date. Interior's Historical Accounting Plan, at III-5 
(Defs.' Ex. 
55). 
31. As of December 31, 2000, approximately 21,500 Special Deposit Accounts were 
inactive (that is, no longer being used as suspense accounts) and contained nearly $68 million. 
Id. at 
III-16. As of the filing of Interior's Historical Accounting Plan on January 6, 2003, Interior 
had 
identified the proper owners of approximately one-third of the money held in these inactive 
accounts. 
Id. 
32. After analyzing the characteristics of these individual account types, Interior 
determined 
that tailoring a methodology for each account type was preferable to developing a single, uniform 
methodology. 
a. Judgment and Per Capita Accounts 
33. Interior determined that the most appropriate approach for assessing the accuracy of 
transaction histories for Judgment and Per Capita accounts is to examine and reconcile each 
transaction 
in each account. Interior's Historical Accounting Plan, at III-2 - III-4 (Defs.' Ex. 55). 
34. Because, for a particular judgment or per capita award, nearly all of the affected IIM 
accounts have identical opening balances (and, therefore, interest transactions), a transaction-bytransaction 
reconciliation approach for these accounts is relatively efficient, and sampling 
techniques are 
not particularly useful where the population of transactions is largely homogeneous. Id. at III- 
3. 
35. The reconciliation process for these accounts involves verifying the opening balance, 
recalculating the interest on a transaction-by-transaction basis using interest distribution 
factors 
historically established by the Office of Trust Fund Management, comparing recalculated interest 
with 
interest actually posted, and verifying the final balance. Id. at III-3 III-4; Tr., June 4, 
2003, a.m., at 
23:23-25:3 (J. Cason). 
b. Land-based Accounts 
36. For verifying the accuracy of transactions in land-based accounts, Interior considered a 
variety of methodologies, from reconciling each transaction in each account to employing various 
statistical sampling techniques. Interior's Historical Accounting Plan, at III-5 - III-6 (Defs.' 
Ex. 55). 
37. In the "Electronic Records Era" (approximately 1985 to December 31, 2000) alone, 
approximately 26.5 million transactions were posted to land-based IIM accounts. Interior's 
Historical 
Accounting Plan, at III-12 (Defs.' Ex. 55), Report to Congress on the Historical Accounting of 
Individual Indian Money Accounts at App. A-3 A-4 (filed July 3, 2002) (Defs.' Ex. 56); see also
Tr., June 4, 2003, a.m., at 25:16-19 (J. Cason). 
38. The fractionation of allotment ownership the increasing partition of ownership as 
allotments are divided among heirs in each generation complicates the historical accounting for 
landbased 
accounts. Interior's Historical Accounting Plan, at III-5 (Defs.' Ex. 55). As a result of 
fractionation, revenue receipts may be divided among dozens, hundreds, or more than one thousand 
individual owners of a single allotment. Id. In addition, as a result of fractionation, many IIM 
account 
holders have ownership interests in allotments in several locations, processed by different 
agencies of 
the Bureau of Indian Affairs ("BIA"). Id. 
39. In its July 2, 2002 Report to Congress on the Historical Accounting of Individual Indian 
Money Accounts, Interior estimated that utilizing transaction-by-transaction reconciliation 
methods for 
all IIM accounts would cost approximately $2.4 billion and require approximately ten years to 
complete. See Report to Congress on the Historical Accounting of Individual Indian Money Accounts 
at 35-41 (filed July 3, 2002) (Defs.' Ex. 56). 
40. The Chairman of the House Committee on Resources, as well as the Chairman and the 
Ranking Minority Member of the Subcommittee on Interior and Related Agencies of the House 
Committee on Appropriations have expressed concern about the length of time and level of funding 
required to undertake such a transaction-by-transaction reconciliation. See Letter from James V. 
Hansen, Chairman, U.S. House of Representatives, Committee on Resources, to Gale Norton, 
Secretary of the Interior, at 1 (Dec. 9, 2002) (Defs.' Ex. 169); 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, at 1 (Dec. 10, 2002) (Defs.' Ex. 170). 
41. In light of the tremendous time and cost associated with an effort to test the accuracy 
of 
each transaction in each account, and the concern expressed by members of Congress about 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. 
Interior's 
Historical Accounting Plan, at III-6 - III-7 (Defs.' Ex. 55). 
42. Interior concluded that the most reasonable method for assessing the accuracy of 
transaction histories for land-based accounts combines transaction-by-transaction and statistical 
sampling techniques. Thus, Interior's Historical Accounting Plan provides for a reconciliation of 
each 
high-dollar transaction in such accounts and a reconciliation of a statistically valid sample of 
the smaller 
transactions. 
43. The sampling plan for land-based accounts will not be used to prepare the statement of 
account for an IIM account holder; but rather will "result in a [confidence] assertion" that will 
be 
included with each historical accounting statement. Tr., June 20, 2003, p.m., at 59:20-60:2 (D. 
Lasater). 
44. Of the 26.5 million transactions posted to land-based IIM accounts during the 
Electronic Records Era (1985 to 2000), approximately 73,500 have a value of $5,000 or more. 
Interior's Historical Accounting Plan, at III-12 (Defs.' Ex. 55). These transactions are 
responsible for 
approximately 45% of the throughput associated with the land-based IIM accounts in the Electronic 
Records Era. Id. Of the remaining transactions, approximately 25.6 million have a value less 
than 
$500. Id. 
45. For transactions in the Electronic Records Era (1985 to 2000), Interior's Historical 
Accounting Plan provides for individual examination and reconciliation of all transactions of 
$5,000 or 
more, and the examination and reconciliation of 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. Interior's Historical Accounting Plan, at III-7 - III-8 & App. D (Defs.' 
Ex. 
55); see also Tr., June 4, 2003, a.m., at 25:25-26:5 (J. Cason); Tr., July 2, 2003, a.m., at 45:8- 
54:19 
(R. Swimmer). 
46. The verification process for land-based transactions entails reconciling the amount of 
the recorded transaction to both supporting financial documents and ownership information. 
Interior's 
Historical Accounting Plan, at III-8 III-9 (Defs.' Ex. 55); see also Tr., June 4, 2003, a.m., at 
61:18- 
62:1, 66:24-67:18 (J. Cason). Interior intends to trace each collection transaction back to the 
original 
source of revenue, usually a lease or contract. Interior's Historical Accounting Plan, at III-9 
(Def's Ex. 
55). 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 allocated 
to IIM 
accounts. Id.; see also Tr., June 26, 2003, p.m., at 39:17-41:18 (R. Swimmer). 
47. As noted in Interior's 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 
Interior's Historical Accounting Plan, at III-7 (Defs.' Ex 55). Interior's Historical Accounting 
Plan was 
developed with the assistance of a contractor known as the National Opinion Research Center of the 
University of Chicago, id. at App. D, whose efforts are led by Professor Fritz Scheuren, who is 
the 
President-Elect of the American Statistical Association, and Dr. Susan Hinkins. Tr., June 20, 
2003, 
p.m., at 71:18-72:5 (D. Lasater). 
48. Interior's determination of sample size was guided by an accepted audit sampling 
treatise. Interior's Historical Accounting Plan, at App. D-11 (Table 2) (Defs.' Ex. 55) 
("Assurance 
Level that the Error Rate is less than 1%, if No Errors Are Found"). Utilizing accepted 
statistical 
methods for calculating sample size, Interior's Historical Accounting Plan incorporates a 
provisional 
sample size of 800 per agency, per stratum, for a total of 80,000 transactions to be sampled in 
each 
stratum, i.e., for the stratum of electronic transactions with a value less than $500 and the 
stratum 
consisting of electronic transactions with a value of $500 to $5,000. Interior's Historical 
Accounting 
Plan, at App. D-10 (Defs.' Ex. 55); Tr., June 20, 2003, p.m., at 80:24-81:5 (D. Lasater). 
49. The provisional sample size of 800 per agency, per stratum, is approximately two times 
the sample size required by the formula for calculating a sample size to attain a 99% confidence 
statement with 1% precision. Tr., June 20, 2003, p.m., at 79:25-80:23 (D. Lasater) (formula 
generates 
sample size of 359 items). A statement of 99% confidence with 1% precision means that Interior 
will 
be 99% confident that there is not more than a 1% error in the account listings. Tr., June 20, 
2003, 
p.m., at 75:25-76:5 (D. Lasater); Tr., June 23, 2003, a.m., at 9:24-10:7 (D. Lasater). 
50. Both the Ernst & Young study by Joseph R. Rosenbaum (discussed in Section 
I.B.4.c.(2), infra), which found no material differences between ledger entries and amounts 
reflected in 
supporting documents in the accounts of named Plaintiffs and predecessors, and the tribal 
reconciliation 
project (discussed in Section I.B.4.c.(3), infra), in which Arthur Andersen was able to trace 86% of 
transactions to supporting documents, support the reasonableness of the error rate assumption 
underlying Interior's calculation of sample size. Tr., June 20, 2003, p.m., at 77:20-79:3, 82:17- 
84:10, 
92:22-95:6 (D. Lasater); see Expert Report of David B. Lasater, at 1-2 (Defs.' Ex. 162); Arthur 
Andersen Tribal Trust Reconciliation Project (Defs.' Ex. 168); Revised Interim Report of Joseph R. 
Rosenbaum (Defs.' Ex. 302). 
51. Interior's Historical Accounting Plan doubles the sample size required by the formula 
for calculating sample size "to afford protection against the possibility that, in some agencies 
and strata, 
the observed error rates might be somewhat higher" than the rate initially utilized to calculate 
the sample 
size. Interior's Historical Accounting Plan, at App. D-10 (Defs.' Ex. 55); Tr., June 20, 2003, 
p.m., at 
81:23-82:2 (D. Lasater). By doubling the required sample size, Interior's plan creates "budget 
space 
as a part of [the] plan to allow [Interior] to do further exploration where they [do] find 
errors." Tr., 
June 20, 2003, p.m., at 82:3-7 (D. Lasater). 
52. The sample size incorporated in Interior's Historical Accounting Plan is large enough to 
perform variable sampling, which can be used to generate dollar estimates. Tr., June 23, 2003, 
a.m., at 
60:24-65:19 (D. Lasater). Given the large sample size in Interior's Historical Accounting Plan, 
Interior 
will be able to utilize the sample flexibly to make determinations beyond mere error rates, e.g., 
to make 
determinations regarding errors in dollar amounts, Tr., June 23, 2003, a.m., at 8:13-22 (D. 
Lasater), 
and to focus on individual agencies within Interior to discover errors and anomalies on an agencybyagency 
basis, e.g., to identify the quality of bookkeeping within individual agencies. Tr., June 
23, 2003, 
a.m., at 8:23-9:5 (D. Lasater). 
53. Plaintiffs' expert, Mr. Duncan, was in error when he testified that Interior's sampling 
plan was simply an attribute sampling plan because Interior's sampling plan is, in fact, a 
multipurpose 
sampling plan. Tr., June 23, 2003, a.m., at 9:13-23 (D. Lasater). A multipurpose sample is one 
that is 
either designed to have specific multiple objectives or is large enough to allow for a variety of 
afterdesign 
hypotheses to be tested or explained from the sample size. Tr., June 23, 2003, a.m., at 
59:25- 
60:6 (D. Lasater). 
54. Plaintiffs' expert, Mr. Duncan, agreed that sample sizes are calculated before one 
begins 
testing. Tr., May 29, 2003, p.m., at 53:16-54:1 (D. Duncan). Mr. Duncan also agreed that one can 
properly conduct both attribute sampling and sampling to assess the magnitude of errors. Tr., May 
29, 
2003, p.m., at 56:23-57:16 (D. Duncan). Mr. Duncan further agreed that it is appropriate to 
adjust the 
sample size as more is learned about the underlying data and that it is "a fairly common approach" 
to 
conduct attribute sampling and to develop a variable sampling approach based on the attribute 
sampling 
results. Tr., May 29, 2003, p.m., at 84:16-85:9 (D. Duncan). 
55. The sample size incorporated in Interior's Historical Accounting Plan is substantial and 
is large enough to provide reasonable assurance to the Court and the parties regarding the 
reliability of 
the transactional listings and balances reflected in the individual account statements. Tr., June 
23, 2003, 
a.m., at 5:25-7:20 (D. Lasater).
56. Because electronic transaction histories are already available for Electronic Records 
Era transactions, the historical accounting work for these transactions is underway. See, e.g., 
Interior's 
Status Report to the Court Number Fourteen, at 34-38 (Aug. 1, 2003); see also Tr., June 6, 2003, 
a.m., at 20:12-22:3 (M. Herman). 
57. Transaction records from the "Paper Records Era" (prior to 1985) are in books, on 
cards, or on other paper media. Interior's Historical Accounting Plan, at III-5 (Defs.' Ex. 55). 
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 intends to design a sampling methodology for Paper Records Era 
transactions similar to the sampling methodology described for Electronic Era transactions. Id. 
at III- 
13. 
58. Interior acknowledges in its Plan, as it has in the past, that OHTA and its contractors 
will encounter gaps in transaction histories or supporting records as they proceed with the 
historical 
accounting work. Interior's Historical Accounting Plan, at III-13. However, Interior's 
Historical 
Accounting Plan neither expects nor requires that all documents be found, see Tr., June 4, 2003, 
p.m., 
at 82:8-84:17 (J. Cason), and Interior has developed adaptive strategies to take into account 
record 
deficiencies, see id.; Interior's Historical Accounting Plan, at III-13 (Defs.' Ex. 55); Expert 
Report of 
Edward Angel, at 46 (Defs.' Ex. 60) ("[B]y making allowances for missing records, OHTA's plan both 
addresses gaps in the records and uses other historical records combined with the forensic 
abilities of 
skilled accountants to overcome those gaps."). 
59. Interior's Historical Accounting 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. See Interior's Historical Accounting Plan, at III-14 (Defs.' Ex. 55). 
60. Interior's Historical Accounting Plan includes procedures for assessing transactions for 
which no supporting documentation can be located. Interior's Historical Accounting Plan, at III- 
13 
(Defs.' Ex. 55); Tr., June 23, 2003, a.m., at 31:20-33:21 (D. Lasater). The absence of supporting 
documentation does not imply that a transaction has been erroneously recorded; accepted 
statistical 
techniques provide a basis for Interior to assess the correctness of a transaction, Tr., June 23, 
2003, 
a.m., at 30:21-31:19 (D. Lasater), and to assess whether the error rate associated with the 
population 
of transactions with supporting documentation may be extrapolated to the population of 
transactions 
that is missing supporting documentation, id. at 34:5-37:4, 40:16-42:12 (D. Lasater). 
61. If an auditor cannot find a specific document to support a transaction, normal audit 
procedures provide that the auditor should search for other documents that may corroborate the 
transaction. Tr., June 23, 2003, a.m., at 15:11-21 (D. Lasater). Interior's Accounting Standards 
Manual (Defs.' Ex. 59) includes procedures for consideration of alternative documentation to 
support a 
transaction. See Tr., June 23, 2003, a.m., at 15:22-16:19 (D. Lasater); Tr., June 16, 2003, a.m., 
at 
63:4-10, 63:16-64:15 (E. Angel); Tr., June 18, 2003, a.m., at 33:2-34:12 (A. Newell). Indeed, 
Plaintiffs' expert from the Phase 1 trial, Ms. Sharon Fitzsimmons, previously testified in support 
of the 
appropriateness of using alternative documentation to verify transactions when specific supporting 
documentation is unavailable. Id. at 17:13-19:14 (D. Lasater). 
62. An accepted statistical technique known as the Kolmogorov-Smirnov Test (K-S Test)
provides a basis for Interior to assess whether the population of transactions that is missing 
supporting 
documentation is different from the population of transactions that is not missing supporting 
documentation. Tr., June 23, 2003, a.m., at 34:5-37:4 (D. Lasater). Utilizing the K-S Test, 
Interior 
could compare the distribution of transactions with supporting documentation to the distribution 
of 
transactions without supporting documentation, and if the distributions are not statistically 
different, 
Interior properly could conclude that the error rate associated with the supported transactions 
may be 
applied to unsupported transactions. Tr., June 23, 2003, a.m., at 40:16-42:12 (D. Lasater). 
63. The absence of supporting documentation does not lead to the conclusion that a 
transaction has been erroneously recorded, but in such circumstances, it is appropriate to apply 
other 
analytic techniques, such as regression analysis and a time-series review of transactions to 
assess the 
correctness of the transaction. Tr., June 23, 2003, a.m., at 30:21-31:19 (D. Lasater). 
64. It is not unusual for accounting systems to have some transactions omitted from their 
records, Tr., June 23, 2003, a.m., at 23:6-14 (D. Lasater); such undercoverage does not mean that 
sampling cannot be performed to make sound statistical inferences. Id. at 23:15-24:4 (D. 
Lasater). 
65. Methods exist for assessing undercoverage, such as sampling documents to determine 
whether they are reflected in the accounting system, as well as other standard analytic procedures 
auditors employ. Id. at 24:5-18 (D. Lasater). Interior's Historical Accounting Plan contemplates 
sampling of documents to assess the extent to which transactions have been omitted from the 
transaction ledgers. Interior's Historical Accounting Plan, at App. D-6 - D-7 (Defs.' Ex. 55); 
Tr., June 
23, 2003, a.m., at 46:18-48:19 (D. Lasater). 
66. Dr. Lasater's analysis of empirical data from the Ernst & Young study by Joseph R. 
Rosenbaum revealed that missing transactions constituted between two and five percent of the total 
number of transactions and less than one percent of the total dollars collected. Tr., June 23, 
2003, 
a.m., at 21:21-22:19 (D. Lasater). There is no empirical support for the suggestion by 
Plaintiffs' 
expert, Mr. Duncan, that missing transactions in Interior's IIM system would substantially 
outnumber 
recorded transactions, id. at 22:20-23:5 (D. Lasater); indeed, Plaintiffs' expert performed no 
tests to 
ascertain the extent to which data and documents are missing from Interior's systems, Tr., May 29, 
2003, p.m., at 91:14-21, 92:11-16 (D. Duncan). 
67. Historians from Morgan, Angel & Associates, LLC ("Morgan Angel") and Historical 
Research Associates ("HRA") will work with the accountants to close gaps found in the records. 
Tr., 
June 12, 2003, p.m., at 70:8-72:3 (E. Angel). 
c. Special Deposit Accounts 
68. In addition to describing the historical accounting work for individual IIM accounts, 
Interior's 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. Interior's Historical Accounting Plan, at III-15 (Defs.' Ex. 55); Tr., June 4, 2003, a.m., 
at 28:8- 
29:9 (J. Cason). This "Retrospective (pre-2001) Special Deposit Account Cleanup Project" entails 
identifying trust and non-trust account balances in Special Deposit Accounts, distributing monies 
to 
proper IIM accounts, tribes or private entities, and identifying or reclassifying funds that were 
improperly held in Special Deposit Accounts. Interior's Status Report to the Court Number 
Fourteen,
at 36 (Aug. 1, 2003). 69. The work required for Special Deposit Accounts differs from the 
historical accounting for IIM accounts in that the objective is the proper distribution of funds 
in, and 
closure of, the inactive Special Deposit Accounts rather than the preparation of account 
statements for 
individual account holders. Interior's Historical Accounting Plan, at III-15; see also Tr., June 
4, 2003, 
a.m., at 28:8-29:9 (J. Cason). 
70. In order to properly allocate the funds in Special Deposit Accounts, Interior's 
accountants examine the history of the account as contained in related financial records and other 
documents to ascertain the source and purpose of the original funds, determine what portion of the 
funds and interest have been distributed, and determine why funds remain in the account. 
Interior's 
Historical Accounting Plan, at III-17 (Defs.' Ex. 55). Interior's accountants then make a 
recommendation regarding allocation of the funds and closure of the account. Id. The final 
determination of the allocation of funds in a Special Deposit Account is made jointly by BIA and 
the 
Office of the Special Trustee ("OST"). The transfer of funds is processed by OST, and any 
resulting 
transfers to IIM accounts (or tribal accounts) would be posted as current deposits. Id. Because 
such a 
transfer of funds to an IIM account would be posted as a current deposit, it would not be included 
on 
the Historical Statement of Account, but instead would appear on the IIM account holder's regular 
quarterly statement. Id. 
d. System Testing 
71. Interior's Historical Accounting Plan also includes several high-level system tests 
designed to assess the reliability of the IIM trust fund system as a whole. Interior's Historical 
Accounting Plan, at III-17 - III-20; see also Tr., June 4, 2003, a.m., at 22:13-23:22 (J. Cason); 
Tr., 
July 2, 2003, a.m., at 54:21-59:15 (R. Swimmer). 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. Interior's Historical Accounting Plan, at III-17 - III-20. 
72. To identify electronic data gaps, Interior plans to compare historical electronic 
balance 
files with electronic account transaction files. Interior's Historical Accounting Plan, at III-18 
(Defs.' Ex. 
55). Interior also intends to review information for BIA agencies that have no electronic data 
for a 
given month to determine whether the agency processed transactions for the month in question. Id. 
73. Two system conversions, in which records were moved from one system to another, 
have occurred in the Electronic Records Era. Interior's Historical Accounting Plan, at III-19. 
The 
conversion from paper ledger cards to the Integrated Records Management System ("IRMS") 
occurred in the late 1970s and early 1980s. Id. Interior plans to examine a statistical sample 
of 
accounts and balances to determine whether they were correctly converted from paper to the IRMS 
system. Id. Beginning in the late 1990s, the electronic data in IRMS was transferred to the 
Trust 
Funds Accounting System ("TFAS"). Id. Interior has electronic data available for the conversion 
from 
IRMS to TFAS, which was contemporaneously reviewed at the time of conversion, and will use that 
data to verify that account balances in IRMS were properly transferred to TFAS. Id. 
74. After the centralization of investment activities in the late 1960s and early 1970s, 
Interior began to compute interest factors, which are utilized to calculate and apply interest 
earnings to 
all IIM accounts. Interior's Historical Accounting Plan, at III-19 (Defs.' Ex. 55). Interior plans to 
analyze the IIM Trust Fund's rate of return and recalculate interest factors, then apply the 
recalculated 
interest factors to IIM accounts according to the policies in effect at the relevant time to 
calculate 
expected interest payments for each account. Id. The expected interest amounts will be compared 
to 
the interest payments actually posted in the accounts to identify errors. Interior expects this 
process to 
result in the reconciliation of almost half of the transactions in IRMS and TFAS as well as the 
majority 
of transactions in each IIM account, and to facilitate the identification and resolution of data 
gaps in the 
electronic records. Id. 
75. To test the completeness of transactions listings and determine whether problems with 
the posting of transactions to the IIM system exist, Interior plans to perform "document-totransaction" 
testing, which will entail tracing a random sample of supporting Interior documents to transaction 
records to determine whether transaction postings that should be present actually appear in the 
electronic or paper ledgers. Interior's Historical Accounting Plan, at III-20, App. D-6 - D-7 
(Defs.' 
Ex. 55); Tr., June 4, 2003, p.m., at 104:25-105:17, 107:14-108:5 (J. Cason); Tr., Jun. 6, 2003, 
a.m., 
at 45:6-12 (M. Herman); Tr., June 23, 2003, a.m., at 46:18-48:19 (D. Lasater). 
76. To assess whether land-based receipts have been appropriately distributed, Interior 
intends to select a statistical sample of land parcels to test ownership records. This process 
will involve 
verifying that ownership records at the Land Title Records Office agree with electronic ownership 
modules, and that lease revenue is allocated in accordance with this ownership data. Interior's 
Historical Accounting Plan, at III-20 (Defs.' Ex. 55). 
e. Record Indexing 
77. An ongoing records indexing process will facilitate the location of records needed for 
the historical accounting. Interior's Historical Accounting Plan, at III-8 (Defs.' Ex. 55). When 
the 
indexing is complete, relevant records will be electronically imaged and coded. Id. 
78. Interior estimates that the government holds approximately 195,000 boxes or 
containers of Indian trust records containing an estimated 300 million to 500 million pages. 
Interior's 
Historical Accounting Plan, at App. E-2 (Defs.' Ex. 55); see also Tr., June 12, 2003, p.m., at 625- 
64:10 (E. Angel); Tr., June 17, 2003, p.m., at 120:19-123:3 (A. Newell). 
79. Working and active records are stored at BIA regional and agency offices around the 
United States. Id. Interior's Office of Trust Records ("OTR") has several facilities in 
Albuquerque that 
store approximately 51,000 boxes of records; the Federal Records Center in Lee's Summit, Missouri, 
stores approximately 42,000 boxes of records; the National Archives stores approximately 64,000 
containers of records; the Indian Trust Accounting Division of the General Services Administration 
stores approximately 20,000 boxes of records at its facility in Lanham, Maryland; and the 
Department 
of the Treasury and the General Accounting Office have approximately 18,000 boxes of records at 
storage facilities. Id. 
80. OTR has engaged Labat-Anderson, Inc. to index trust-related records stored at OTR's 
facilities in Albuquerque and at the Federal Records Center in Lee's Summit. Interior's 
Historical 
Accounting Plan, at App. E-2 (Defs.' Ex. 55). The indexing involves opening boxes and indexing 
the 
contents for ease of future reference. Tr., June 4, 2003, a.m., at 26:11-27:17 (J. Cason). The 
index 
will be a "file-level" index in which every file title will be entered verbatim into an electronic 
database. 
Id. The database will also include data appearing on the exterior of a box, the source agency, 
and
document types and date ranges. Interior's Historical Accounting Plan, at App. E-3. The indexing 
project is expected to be completed in fiscal year 2004. Id. 
f. Collection of Missing Information From Outside Sources 
81. Interior has developed and included in Interior's Departmental Manual policy and 
procedures for the collection of missing information from outside sources. See Interior's 
Fiduciary 
Obligations Compliance Plan, at 72-75 (Defs.' Ex. 1); Interior's Status Report to the Court Number 
Fourteen, at 33 (Aug. 1, 2003). Implementation of the policy to collect information from third 
parties is 
underway, and implementation activities have been reported in Interior's status reports to the 
Court. 
82. On February 6, 2002, Interior published a Federal Register notice requesting that third 
parties with records relating to IIM trust funds notify Interior and preserve those documents 
indefinitely. See 67 Fed. Reg. 5607-08 (Feb. 6, 2002); see also Tr., June 5, 2003, p.m., at 65:15- 
23 (J. Cason). As a result of the notice, three energy companies contacted OHTA and indicated 
that 
they may have records pertaining to allotted lands. Interior's Fiduciary Obligations Compliance 
Plan, at 
74 (Defs.' Ex. 1). On August 6 and 7, 2002, OHTA staff conducted an on-site overview of records 
at 
one of these companies and concluded that a small percentage of the records may be useful as "fillthegap" 
data. Id. The company agreed to retain custody of the records until further notice. OHTA 
is in 
discussions with the other two companies. 
83. Interior followed the Federal Register notice with a letter in March 2002, that was sent 
to approximately 4,200 addresses derived from the Oil and Gas Journal subscription list. 68 Fed. 
Reg. 
23,756, 23,757 (May 5, 2003). The letter asked company addressees if they possessed records 
relating to production on individual-allotted Indian lands and requested an inventory of those 
records 
from 1887 to the present. The letter also requested that the addressee preserve and maintain 
those 
documents. Id. 
84. Interior is also seeking other potential sources of records. In September 2002, OHTA 
secured a membership to the American Heritage Center at the University of Wyoming, which houses 
the Anaconda Geological Documents Collection, a large body of economic geologic data. Interior's 
Fiduciary Obligations Compliance Plan, at 74 (Defs.' Ex. 1). On February 5 and 6, 2003, OHTA 
completed a review of these documents and determined that, while the collection appears to contain 
some documents that may relate to IIM and/or tribal historical accounting, only a small percentage 
appear directly relevant. Interior's Status Report to the Court Number Thirteen, at 31 (May 1, 
2003) 
(Defs.' Ex. 47). 
85. Interior has also engaged private consultants in an effort to locate potential sources 
of 
third-party records. Gustavson Associates ("Gustavson") completed a pilot study to search and 
identify oil and gas records on allotted lands and submitted a report with its findings in June 
2002. 
Interior's Fiduciary Obligations Compliance Plan, at 74 (Defs.' Ex. 1). The study successfully 
demonstrated a methodology for collecting records from third parties, particularly oil and gas 
companies. Id. Gustavson's discussions with representatives of the oil and gas industry revealed 
that 
no standard policy for records retention exists in the petroleum industry, primarily because of 
the cost 
of maintaining large volumes of records, the frequent buying and selling of oil and gas resources, 
and 
ongoing industry consolidation. Id. at 75. Gustavson recommended that OHTA work with the Council 
of Petroleum Accounting Societies ("COPAS") to survey its membership about records retention 
practices. On October 23, 2002, OHTA made a presentation to COPAS and asked for assistance in 
identifying potential sources of relevant records within the oil and gas industry. Id. 
86. OHTA's historian contractors, HRA and Morgan Angel are also assisting OHTA with
the effort to locate potential sources of third-party documents. Tr., June 18, 2003, a.m., at 
57:17-58:7, 
60:5-13, 88:14-89:1, 91:12-23 (A. Newell). 
g. Interior's Accounting Standards Manual 
87. Interior's Accounting Standards Manual (Defs.' Ex. 59), prepared collaboratively by 
OHTA, Chavarria, Dunne & Lamey LLC, Deloitte & Touche LLP, Ernst & Young LLP, Grant 
Thornton LLP, KPMG LLP, and the National Opinion Research Center ("NORC") at the University 
of Chicago, was developed to provide guidance to the accounting firms and others involved in the 
historical accounting work. Interior's Accounting Standards Manual at I-1 (May 9, 2003) (Defs.' 
Ex. 
59). The Accounting Standards Manual "identifies the key documents to be used and briefly 
outlines 
the policies and procedures to be followed in performing the [h]istorical [a]ccounting of IIM 
accounts." 
Interior's Accounting Standards Manual at I-1 (Defs.' Ex. 59); Tr., June 6, 2003, a.m., at 17:2-6 
(M. 
Herman). The manual will be updated periodically as the historical accounting progresses. 
Interior's 
Accounting Standards Manual at I-1 (Defs.' Ex. 59); Tr., June 6, 2003, a.m., at 18:4-9 (M. 
Herman). 
The Manual is intended "to make uniform the tests of the transactions so that all of the field 
audit teams . 
. . would be able to follow a protocol that would be uniform across all of the evaluations." Tr., 
June 23, 
2003, a.m., at 15:22-16:19 (D. Lasater). 
88. Interior's Accounting Standards Manual (Defs.' Ex. 59) provides that a negotiated 
check, an electronic fund transfer, or, if the payee is not the account holder, an authorization 
for 
disbursement are the preferred ("Level One") documents for verifying disbursements. See 
Interior's 
Accounting Standards Manual at 2.0-1 (May 9, 2003) (Defs.' Ex. 59); Tr., June 6, 2003, a.m., at 
18:14-15 (M. Herman). If these primary documents are not available, the Accounting Standards 
Manual provides that secondary ("Level Two") documents, such as checks without proof of 
negotiation, disbursement schedules, journal vouchers and check registers, may be used to verify a 
disbursement, but instructs accountants "to use professional judgment to determine the sufficiency 
of the 
Level Two documents for meeting the purposes of the Historical Accounting." Interior's Accounting 
Standards Manual at 2.0-1 n.1; see also Tr., June 5, 2003, a.m. at 10:9-11:6, 12:18-14:1 (J. 
Cason); 
Tr., June 6, 2003, a.m., at 18:14-19:1 (M. Herman). 
h. Quality Control 
89. Interior is implementing quality control checks to achieve "best practices" at each 
phase 
of the historical accounting process. Interior's Historical Accounting Plan, at App. C-2 (Defs.' 
Ex. 
55). Appendix C to Interior's Historical Accounting Plan describes OHTA's quality control 
procedure. 
4. Feasibility of Interior's Historical Accounting Plan 
a. Budget and Staffing 
90. The Secretary of the Interior is committed to Interior's Historical Accounting Plan, 
Interior has been moving forward with the accounting efforts described in the Plan, and the 
Secretary 
prevailed upon the Office of Management and Budget to add $100 million to the fiscal year 2004 
budget to permit the plan to go forward. Tr., June 5, 2003, a.m., at 75:16-76:24 (J. Cason). To 
the 
extent that Interior Defendants can control the factors affecting the Plan, they are committed to 
implementing it. Id. 
91. On July 10, 2003, the House Appropriations Committee reported H.R. 2691 to the full 
House with House Report 108-195. Interior's Status Report to the Court Number Fourteen, at 4 
(Aug. 1, 2003). The overall Federal trust programs funding in H.R. 2691 was $219,641,000, which 
was $55,000,000 below the budget request but $79,282,000 above the fiscal year 2003 enacted level. Id. The Committee included $75,000,000 for historical accounting, a decrease of $55,000,000 from 
the budget request but an increase of $65,844,000 above the fiscal year 2003 enacted level. Id. 
These funding levels were included, without amendment, in H.R. 2691 as passed by the House on July 
18, 2003. Id. 
92. On July 10, 2003, the Senate Appropriations Committee reported S. 1391 to the full 
Senate with Senate Report 108-89. Interior's Status Report to the Court Number Fourteen, at 5 
(Aug. 1, 2003). The Senate bill included the same funding levels for the Federal Trust Programs 
as 
passed by the House. Id. 
93. The Senate Report states that the Committee did not fund the entire request due to the 
ongoing litigation and uncertainty as to whether Interior's Historical Accounting Plan will be 
fully 
accepted by the Court. Interior's Status Report to the Court Number Fourteen, at 5 (Aug. 1, 
2003). 
The Report also noted that because past accounting efforts have illustrated few mistakes within 
the 
individual accounts reconciled, it is the Committee's belief that the funding provided "will allow 
Interior 
to utilize a statistical sampling model sufficient to further illustrate Interior's performance in 
managing 
trust accounts." Id. (quoting S. Rep. No. 108-89, at 47 (2003)). The Committee also made clear 
that 
its reduction below the request level should not be mistaken for an endorsement of the Plaintiffs' 
Revenue Model or its assumptions. Id. 
94. As of the filing of Interior's Historical Accounting Plan on January 6, 2003, Interior 
had 
engaged fourteen consulting firms to assist in the historical accounting effort, including five 
accounting 
firms, the largest commercial trust operator in the United States, two historian firms which have 
specialized in Indian issues for many years, and firms to assist in statistical matters, trust 
legal matters, 
and other areas pertaining to the historical accounting. Interior's Historical Accounting Plan, 
at 2 
(Defs.' Ex. 55). Representatives from these firms were instrumental in designing Interior's 
Historical 
Accounting Plan. Id. 
95. The five accounting firms Interior has engaged to assist in the historical accounting 
effort 
are KPMG LLP, Ernst & Young LLP, Deloitte & Touche LLP, Grant Thornton LLP, and Chavarria, 
Dunne & Lamey LLC. Interior's Historical Accounting Plan, at I-1 I-2 (Defs.' Ex. 55). 
96. Interior retained the accounting firms to benefit from the "brain trust of the 
accounting 
industry," and to accelerate the accounting process by having multiple firms with multiple teams 
working 
on it. Tr., June 4, 2003, a.m., at 11:10-12:6 (J. Cason). These firms will all be providing 
general 
assistance to OHTA as well as performing the historical accounting work. Tr., June 6, 2003, a.m., 
at 
16:14-17 (M. Herman). Grant Thornton provides general assistance to OHTA, but its primary role 
will be in providing quality control and quality review of the work product of the other four 
accounting 
firms. Tr., June 6, 2003, a.m., at 16:18-21 (M. Herman). 
97. To ensure consistency in the historical accounting work performed by the accountants, 
OHTA has instituted regular meetings, designed cooperative work such as the Alaska Region 
historical 
accounting project, developed the Accounting Standards Manual (Defs.' Ex. 59), and will develop a 
training manual. Tr., June 6, 2003, a.m., at 17:1-13 (M. Herman). 
98. To facilitate the work of the accountants, Interior retained historians from Morgan 
Angel and HRA to assist in locating as many useful documents as possible, because they have the 
"talent and skill to look both within Interior's records and other possible places" to get the 
records need
to perform the historical accounting. Tr., June 4, 2003, a.m., at 12:7-22 (J. Cason). 
99. Morgan Angel has been assisting OHTA since its inception in 2001, by sharing its 
historical knowledge and helping OHTA develop a historical perspective for its accounting plan. 
Expert 
Report of Edward Angel, at 44 (Defs.' Ex. 60). 
100. Like Morgan Angel, HRA has been assisting OHTA since its formation in 2001. 
Expert Report of Alan S. Newell, at 1 (Defs.' Ex. 141). HRA has consulted with OHTA on a variety 
of historical matters, and assisted OHTA in the preparation of Interior's July 2, 2002, Report to 
Congress on the Historical Accounting of Individual Indian Money Accounts. Id. at 11. 
b. Work Completed And Currently Underway 
101. Interior has completed the accounting work for 16,821 Judgment Accounts with 
December 31, 2000 balances of approximately $48.5 million. Interior's Status Report to the Court 
Number Fourteen, at 34 (Aug. 1, 2003); see also Tr., June 4, 2003, a.m., at 23:23-25:3 (J. Cason). 
In addition, Interior has reconciled 117,425 transactions in Per Capita Accounts with a value of 
approximately $162 million. Interior's Status Report to the Court Number Fourteen, at 34. 
102. As reported in Interior's quarterly status reports, the historical accounting work for 
land-based accounts has also begun. See, e.g., Interior's Status Report to the Court Number 
Fourteen, at 34-35; Tr., June 4, 2003, a.m., at 20:12-22 (J. Cason). 
103. A project is underway to perform the historical accounting work for the Eastern 
Region, which has forty-eight land-based accounts. To date, 260 transactions have been reconciled 
from these accounts, and OHTA's contractor, Deloitte & Touche, is obtaining additional documents 
from to reconcile the remaining 61 transactions. Interior's Status Report to eh Court Number 
Fourteen, at 34. The contractor expects to complete this project by August 31, 2003. Id. 
104. A project is also underway to perform the historical accounting work for new landbased 
accounts in the Southwest Region. The Southwest Region was selected because relevant land 
records are in the Albuquerque Land Title Records Office and relevant financial records are in the 
Office of Trust Records' Albuquerque Records Center. Interior's Status Report to the Court Number 
Fourteen, at 34. OHTA expects this project to be completed by December 31, 2003. Id. at 35. 
105. As a pilot test of the sampling and records collection process, OHTA and its 
contractors selected a random sample of electronic transactions in the Alaska Region. Interior's 
Status 
Report to the Court Number Fourteen, at 35. While the sample is not large enough to be 
representative, the purpose of the project is to test and refine record location and document 
collection 
procedures, develop and test training materials, and provide information to inform the historical 
accounting. Interior's Status Report to the Court Number Thirteen, at 33 (May 1, 2003). 
106. The Alaska project will also help ensure that the results from the various accounting 
firms are reasonably consistent. Tr., June 4, 2003, a.m., at 29:10-30:7 (J. Cason). OHTA and the 
accounting firms will be working cooperatively on this project to ensure that all of the firms are 
implementing the same procedures. Tr., June 6, 2003, a.m., at 17:9-13 (M. Herman). 
107. A preliminary process for collecting documents to be used in the historical accounting 
has been developed, and OHTA and the accounting firms are currently testing it with the Alaska 
Region 
documents they are collecting. Tr., June 6, 2003, a.m., at 19:4-12 (M. Herman). The first step 
in that 
process entails a meeting between the accounting firms and the agency and area personnel to enable 
the 
accountants to understand the business process and filing system of the agency and area, as there 
are 
regional differences in filing systems and paper data. Id. All of OHTA's accounting firms have 
visited 
both the Juneau agency office and the Anchorage agency office as part of this document collection 
process. Tr., June 6, 2003, a.m., at 19:16-17 (M. Herman). Records in the Alaska Region are very 
well organized, and the agency personnel had no difficulty finding relevant documents. Id. at 
20:1-5. 
108. Clean-up of land records has been underway for several years as has been reported to 
the Court, and the historical accounting will benefit from any resulting improvements in the 
accuracy of 
the records. Tr., June 4, 2003, a.m., at 67:19-68:10 (J. Cason). 
109. OHTA and the accounting firms have begun performing some of the data validation and 
system tests outlined in Interior's Historical Accounting Plan. Tr., Jun. 6, 2003, a.m., at 32:4-
5 (M. 
Herman). 
110. For example, OHTA and the accounting firms are analyzing the Integrated Records 
Management System to determine whether account numbers were reused over time. An account 
holder's name is recorded both in a master file and in the transactional data itself. Each time a 
transaction is posted to the system, the account holder's name is associated with the transaction, 
so 
accounts that have more than one name associated with them can be identified. Tr., Jun. 6, 2003, 
a.m., 
at 31:12-23 (M. Herman). 
111. Another test that OHTA and the accounting firms have undertaken is an analysis of data 
distribution to aid understanding of the data characteristics. Tr., Jun. 6, 2003, a.m., at 35:14- 
16 (M. 
Herman). OHTA and the accounting firms began the analysis of data distribution by graphing the 
number of credit transactions and dollars by month and year, and the number of debit transactions 
and 
dollars by month and year to detect any abnormal patterns. Tr., Jun. 6, 2003, a.m., at 35:16-19, 
36:6- 
12 (M. Herman). If any abnormally large spikes in the data appear, the underlying transactions 
are 
reviewed to determine whether the abnormal pattern can be explained by, for example, a new 
creation 
of accounts, or a large judgment distribution. If the abnormal pattern cannot be explained by the 
underlying transactions, then OHTA and the accounting firms will meet with the agency personnel 
and 
review the records associated with those transactions. Tr., Jun. 6, 2003, a.m., at 36:6-24 (M. 
Herman). 
112. OHTA and the accounting firms have initiated this analysis of data distribution for the 
Alaska region. See Tr., Jun. 6, 2003, a.m., at 36:25-37:1 (M. Herman). For example, they charted 
IRMS and TFAS credit transactions by month and year for the Alaska region, identified nine "spikes 
within the graph" at which data appeared to be distributed abnormally, and then managed to explain 
each of these spikes by examining the underlying transactions. See Tr., Jun. 6, 2003, a.m., at 
37:10- 
39:6 (M. Herman). 
113. OHTA and the accounting firms have also undertaken a study of the conversion of 
accounts from IRMS to TFAS. Tr., Jun. 6, 2003, a.m., at 39:25-40:3 (M. Herman). This study 
involves identifying accounts with non-zero balances in IRMS at the point of conversion and 
determining whether all of those accounts were converted to TFAS with the same balance. Tr., Jun. 
6, 
2003, a.m., at 40:5-10 (M. Herman). 
114. The study of the conversion of accounts from IRMS to TFAS has begun in the Alaska 
region. See Tr., Jun. 6, 2003, a.m., at 40:16-17 (M. Herman). Approximately 800 accounts 
converted from IRMS to TFAS in the Alaska region. Tr., Jun. 6, 2003, a.m., at 41:12 (M. Herman). 
Of these, only one account appeared to have a discrepancy: the account had a negative balance in 
IRMS that did not appear to convert to TFAS. The accountants looked to the underlying 
transactional 
data and discovered a missing transaction early on in the account's history. They then went to 
the 
Office of Trust Records to review the IIM jacket folder for that account holder, and discovered a 
transaction recorded on the IIM ledger that was not in the electronic database. With that 
transaction, 
the account had a zero balance in IRMS and, therefore, was properly not converted to TFAS. Tr., 
Jun. 6, 2003, a.m., at 40:19-41:16 (M. Herman). 
115. OHTA and the accounting firms are also undertaking an interest recalculation test, 
which entails recalculating interest posted to IIM accounts through time based on the policies and 
procedures in place and the interest factors used at that point. Tr., Jun. 6, 2003, a.m., at 
41:21-24 (M. 
Herman). The purpose of this test is to identify missing data and to ensure that the policies 
that were in 
place at the point in time were applied correctly. Tr., Jun. 6, 2003, a.m., at 42:2-5, 42:13-18 
(M.
Herman). If OHTA and the accounting firms determine that missing information is responsible for 
any 
failure of recalculated interest to match the interest actually posted, then, depending on the 
number of 
accounts affected, they will first look for the transaction registers and then turn to the jacket 
files. Tr., 
Jun. 6, 2003, a.m., at 42:24-43:1 (M. Herman). The firm of Chavarria, Dunne & Lamey has begun 
designing the program for this interest recalculation test, but the test itself has not yet been 
implemented. 
Tr., Jun. 6, 2003, a.m., at 43:4-6 (M. Herman). 
116. To determine whether transactions are missing from the system, OHTA has created a 
document-to-transaction test, which entails sampling documents and tracing them to transactions, 
and a 
test to compare balances derived from transactional data to balances in the balance (or master) 
file. 
Tr., Jun. 6, 2003, a.m., at 48:9-11, 48:23-49:1 (M. Herman). 
117. In 2002, OHTA tasked Morgan Angel with examining materials in the Federal Records 
Center at Lee's Summit, Missouri, and assessing their value for the historical accounting. Expert 
Report 
of Edward Angel, at 44 (Defs.' Ex. 60). The firm examined both Federal Records Center and agency 
finding aids, and found a high correlation between the agency records transmittal forms and the 
documentation contained in the appropriate boxes. Id. at 45; Tr., June 12, 2003, a.m., at 81:7-25 
(E. 
Angel). The finding aids accurately reflected the contents of all but one of the several hundred 
boxes 
inspected. Tr., June 16, a.m., at 76:24-77:22 (E. Angel). 
118. In 2002, OHTA also tasked Morgan Angel with developing a template for use in 
preparing brief histories of Indian reservations, which are intended to support OHTA's outreach 
program and to help the accounting research teams by imparting a basic knowledge of the 
reservations. 
Expert Report of Edward Angel, at 45 (Defs.' Ex. 60). In addition to basic historical 
information, 
Morgan Angel proposed sections describing the location of reservation documents within the 
National 
Archives system, important treaties and legislation affecting the reservation, a description of 
the 
allotment process at the reservation if it is allotted, natural resource development, population, 
and 
historical data pertaining to judgment funds, per capita payments, and the IIM trust. Id.; Tr., 
June 12, 
2003, a.m., at 83:1-13 (E. Angel); Tr., June 12, 2003, p.m., at 95:19-23 (E. Angel). Using this 
template, four reservation histories have been completed, and more are currently being prepared. 
Tr., 
June 12, 2003, a.m., at 83:20-84:2 (E. Angel). 
119. HRA's work for OHTA includes developing a document collection plan that 
will guide efforts to collect documents for the historical accounting, assisting OHTA with the 
Alaska 
Region Project, working with Morgan Angel to produce reservation histories, and performing 
research 
to verify the validity of statistics obtained from Interior by investigating statistics from 
public and private 
sources outside the agency. Expert Report of Alan S. Newell, at 12-14 (Defs.' Ex. 141). 
120. Both Morgan Angel and HRA have provided to Interior a substantial number of reports 
relevant to the historical accounting. See Expert Report of Edward Angel (Defs.' Ex. 60); Expert 
Report of Alan S. Newell (Defs.' Ex. 141); Tr., June 12, 2003, a.m., at 79:18-22 (E. Angel); Tr., 
June 
13, 2003, a.m., at 32:25-33:3 (E. Angel); Tr., June 17, 2003, p.m., at 75:2-12, 82:11-15, 87:9-15, 
89:23-90:2 (A. Newell); Defs. Exs. 142-153 (Reports prepared by HRA). 
121. Morgan Angel and HRA have developed a catalog of record repositories to assist with 
the historical accounting work. Tr., June 17, 2003, p.m., at 90:3-12, 90:16-91:7 (A. Newell). 
c. Availability and Accuracy of Records
122. Interior has made improvement of records retention and management a priority; the 
status of these efforts is reported to the Court in Interior's quarterly reports. See Tr., June 
4, 2003, 
a.m., at 30:8-34:21 (J. Cason). Records management has implications for both the historical 
accounting and trust reform, so Interior's goal is not only to obtain the records necessary for 
the 
historical accounting, but also to improve its records retention and management program generally 
so 
that documents can be retrieved more easily in the future. Tr., June 4, 2003, a.m., at 39:23- 
40:16 (J. 
Cason). 
123. The steps Interior has taken to ensure the protection of trust records include hiring a 
Senior Executive Service-level records manager, temporarily transferring responsibility for 
records from 
the Office of the Special Trustee to an Assistant Deputy Secretary who reports to Associate Deputy 
Secretary James Cason, implementing a process to ensure that no existing records are destroyed, 
and 
initiating the records-indexing process in Albuquerque and Lee's Summit. Tr., June 4, 2003, a.m., 
at 
30:8-34:3 (J. Cason). 
124. Interior's policy is to preserve all documents that may be related to the IIM trust. 
Tr., 
June 4, 2003, a.m., at 55:15 (J. Cason). Not all documents that contain individual Indian trust 
data, 
however, are necessary to conduct an historical accounting. Id. at 51:15-53:12 (J. Cason). For 
example, while ledgers and documents that reflect sale and lease transactions are relevant to the 
historical accounting work, land-use plans and surface management plans are not. Id. at 51:15- 
53:12 
(J. Cason). 
125. Contrary to the allegations of the Plaintiffs that an accounting is impossible because 
relevant records are unavailable, the experience of Interior and its consultants, including their 
experience 
with the named Plaintiffs' records, indicates that sufficient records are available to proceed 
with the 
historical accounting project. This is the view of both the professional historians and the 
forensic 
accountants retained by OHTA to assist with Interior's efforts to provide accountings to IIM 
account 
holders.
(1) The Paragraph 19 Search And Collection Process 
126. The Paragraph 19 search and collection process demonstrates that sufficient records to 
conduct the historical accounting exist and are retrievable. 
127. In 1999, both Interior and Treasury engaged the firm Arthur Andersen to assist them in 
searching for and collecting documents required to be produced pursuant to Paragraph 19 of the 
First 
Order for Production of Information ("Paragraph 19"). Tr., June 6, 2003, p.m., at 38:2-22 (R. 
Brunner). Paragraph 19 required the production of all documents, records or tangible things that 
embody, refer to or relate to the IIM accounts of the named Plaintiffs or their agreed-upon 
predecessors in interest. Tr., June 6, 2003, p.m., at 39:5-11 (R. Brunner). 
128. Robert L. Brunner was the individual at Arthur Andersen who oversaw the firm's work 
on behalf of Interior and Treasury. Tr., June 6, 2003, p.m., at 38:2-22, 46:10-47:2 (R. Brunner). 
Mr. 
Brunner spent 15 years at Arthur Andersen, where he was a Principal, the national partner in 
charge of 
the firm's Complex Data Management and Class Action practice, and the partner in charge of the 
firm's Value Solutions Litigation Consulting Practice for the Pacific Northwest. Tr., June 6, 
2003, 
p.m., at 28:10-17 (R. Brunner). In May of 2002, Mr. Brunner joined KPMG, where he is currently a 
principal in the forensic practice and national partner in charge of the class action and complex 
data 
management practice. Tr., June 6, 2003, p.m., at 28:2-7 (R. Brunner). 
129. With respect to Treasury, Arthur Andersen assisted in four primary areas related to 
compliance with Paragraph 19: the development of a plan; the development of protocols and 
procedures for implementing the search and collection process; the development and implementation 
of 
quality control procedures to ensure the effectiveness and comprehensiveness of the search; and 
the 
issuance of an opinion as to the thoroughness and adequacy of the search. Tr., June 6, 2003, 
p.m., at 
39:16-40:9 (R. Brunner). Arthur Andersen performed these tasks and completed its work for 
Treasury 
by January 31, 2001. Tr., June 6, 2003, p.m., at 40:10-51:14 (R. Brunner). 
130. After the completion of its work for Treasury, Anderson rendered its professional 
opinion that Treasury's response to Paragraph 19 had been "a thorough, well-executed search that 
met 
or exceeded industry practices." Tr., June 6, 2003, p.m., at 51:15-52:9 (R. Brunner). Treasury 
ultimately produced approximately 2,300 documents in response to Paragraph 19. Tr., June 6, 2003, 
p.m., at 52:10-12 (R. Brunner). 
131. Arthur Anderson's role with respect to Interior's Paragraph 19 response was to 
provide management advice and consulting, as well as assistance with the development of search and 
collection procedures. Tr., June 6, 2003, p.m., at 52:13-53:3 (R. Brunner). The search and 
collection 
process with respect to Interior was in some respects facilitated by the fact that recordkeeping 
is often 
tied to the geography of the corresponding IIM account holder. Tr., June 6, 2003, p.m., at 53:16- 
54:5 
(R. Brunner). 
132. Interior ultimately searched approximately eighty facilities for documents responsive to 
Paragraph 19. Tr., June 6, 2003, p.m., at 54:6-55:8 (R. Brunner). Criteria employed to determine 
whether documents were responsive included the names and aliases of the named Plaintiffs and 
predecessors, account numbers, associated tract numbers, associated lease numbers, and 
transactions. 
Tr., June 6, 2003, p.m., at 56:1-57:7 (R. Brunner). 
133. Interior implemented a number of procedures to ensure quality control in every aspect 
of its Paragraph 19 search and collection process, including quality control checks and 
certifications by 
team members that they had properly and completely performed searches. Tr., June 6, 2003, p.m., 
at 
61:11-62:4 (R. Brunner). The quality control procedures implemented by Interior exceeded those 
typically employed in the context of private business litigation. Tr., June 6, 2003, p.m., at 62:2-4 (R. 
Brunner). 
134. Interior's Paragraph 19 response encompassed the "appropriate universe of records," 
"applied the appropriate search criteria," was based on a "well-planned and well-organized 
search," 
and included "a component of quality control throughout that entire process;" as such, it was "a 
wellexecuted, 
well-thought out search that . . . exceeded industry practices." Tr., June 6, 2003, 
p.m., at 
65:12-66:4 (R. Brunner). Interior has produced approximately 160,000 documents in response to 
Paragraph 19. Tr., June 6, 2003, p.m., at 66:5-7 (R. Brunner). 
135. The work undertaken in response to Paragraph 19 showed that "when Interior and 
Treasury were required to find documents, they could find documents . . . of any nature." Tr., 
June 6, 
2003, p.m., at 67:4-8 (R. Brunner). 
136. OHTA is "learning from and taking advantage of that which [Interior, Treasury and 
Arthur Anderson] learned in going through the Paragraph 19 search." Tr., June 6, 2003, p.m., at 
67:19-21 (R. Brunner). 
(2) The Ernst & Young Analysis 
137. The analysis performed by Ernst & Young confirms that sufficient data exists to perform 
an accounting for the named Plaintiffs (and their predecessors), and that Interior's IIM records 
related 
to their accounts are substantially accurate. 
138. In early 2001, the Department of Justice retained the firm Ernst & Young to review 
documents that had been gathered pursuant to Paragraph 19 and to analyze those documents with 
respect to the accounts of the named Plaintiffs and predecessors encompassed by Paragraph 19. 
Tr., 
June 9, 2003, a.m., at 53:5-54:12 (J. Rosenbaum). Specifically, Ernst & Young was tasked with 
preparing a listing of the transactions that appeared in ledgers maintained by the Department of 
the 
Interior, and determining whether those transactions could be verified by comparing them to the 
relevant supporting documents that were gathered pursuant to Paragraph 19. Tr., June 9, 2003, 
a.m., 
at 54:5-12 (J. Rosenbaum). 
139. In performing this work, Ernst & Young undertook and completed a number of specific 
tasks: (1) assembly of transaction histories; (2) identification of ownership information; (3) 
linking of 
transactions to supporting documents; (4) identification of any variances between transactions and 
documentation; (5) comparison of expected revenue from leases to transaction entries; and (6) 
recalculation of interest paid on the subject accounts. Tr., June 9, 2003, a.m., at 61:25-63:21 
(J. 
Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 4 (Mar. 28, 2003) (Defs.' Ex. 156). 
140. The individual at Ernst & Young with primary responsibility for this project was Joseph 
R. Rosenbaum. Tr., June 9, 2003, a.m., at 53:14-20 (J. Rosenbaum). Mr. Rosenbaum is a partner 
with Ernst & Young and practices in its Global Investigations and Disputes Advisory Services 
Practice. 
Tr., June 9, 2003, a.m., at 6:17-7:4 (J. Rosenbaum). Mr. Rosenbaum is a Certified Public 
Accountant 
in California and also holds a law degree and a master's degree in business administration. Tr., 
June 9, 
2003, a.m., at 5:17-22; 9:14-25 (J. Rosenbaum). Mr. Rosenbaum has over twenty years of 
experience as an accountant with international firms, specializing in the area of forensic 
accounting 
related to investigations, analysis of historical information, dispute resolution, and litigation 
consulting 
services. Tr., June 9, 2003, a.m., at 5:23-9:13, 12:19-14:18 (J. Rosenbaum); Expert Report of 
Joseph 
R. Rosenbaum, at 3 (Defs.' Ex. 156). 
141. Ernst & Young assembled complete transaction histories, from the inception of the 
accounts, for twenty-five named Plaintiffs and predecessors; the transactions analyzed ranged in time 
from 1914 through 2000. Tr., June 9, 2003, a.m., at 64:3-66:7 (J. Rosenbaum); Expert Report of 
Joseph R. Rosenbaum, at 5, 11 (Defs.' Ex. 156). 
142. Because of the historical nature of the project, some of the original transaction 
ledgers 
were not available; in some such cases, however, other documentation such as bills for collection 
and 
leases provided bases to fill in these gaps and make the transaction listing more complete. Tr., 
June 9, 
2003, a.m., at 68:7-70:19 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 5 (Defs.' Ex. 
156). Transactions evidenced by documents other than the original transaction ledgers or 
statements 
were noted as "reconstructed" or "recreated" by Ernst & Young and distinguished from transactions 
that were deemed supported in the analysis, despite the existence of documentary evidence that 
such 
transactions had occurred. Tr., June 9, 2003, a.m., at 68:8-70:19 (J. Rosenbaum); Expert Report 
of 
Joseph R. Rosenbaum, at 5 (Defs.' Ex. 156). 
143. Ernst & Young obtained from Interior account balances as of December 31, 2000, as 
set forth in the Trust Fund Accounting System, and compared those balances to balances Ernst & 
Young calculated as of the same date, and no differences were noted. Expert Report of Joseph R. 
Rosenbaum, at 5-6 (Defs.' Ex. 156). 
144. Ernst & Young's work in assembling transaction histories demonstrated that the 
documents collected pursuant to Paragraph 19 are sufficient to create a listing of the 
transactions, 
including monies collected and disbursed, for thirty-seven IIM accounts of twenty-five individuals 
who 
are named Plaintiffs or predecessors of named Plaintiffs. Tr., June 9, 2003, a.m., at 56:15-22 
(J. 
Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 2, 5, & Ex. A (Defs.' Ex. 156). 
145. Ernst & Young verified ownership information relating to allotments owned by the 
named Plaintiffs and their predecessors to ensure that the payments allocated to those individuals 
accurately reflected the percentage of their ownership interests in such allotments. Tr., June 9, 
2003, 
a.m., at 70:20-71:17 (J. Rosenbaum). Ownership information was verified by reviewing the Land 
Record Information System, and then confirming that information by examining probate documents 
that 
were collected pursuant to Paragraph 19. Tr., June 9, 2003, a.m., at 71:8-17 (J. Rosenbaum). 
146. Many of the named Plaintiffs and their predecessors held small, fractionated interests 
in 
allotments, which resulted in a substantial number of the transactions being for small dollar 
amounts 
nearly 60% were for less than $10.00. Tr., June 9, 2003, a.m., at 67:15-24 (J. Rosenbaum); Expert 
Report of Joseph R. Rosenbaum, at 3 (Defs.' Ex. 156). For example, one individual owns a 7/58,320 
fractionated interest in a particular allotment which generates lease income of $858.54 per year; 
because of the tiny interest in this allotment, the income allocable to the individual is only ten 
cents per 
year. Tr., June 9, 2003, p.m., at 46:17-51:14 (J. Rosenbaum); Defs.' Ex. 155 at D155-0124 D155- 
0155. 
147. The total balance for all of the accounts of the named Plaintiffs and their predecessors 
analyzed by Ernst & Young as of December 31, 2000, is less than $3,000. Tr., June 9, 2003, a.m., 
at 
77:20-78:10 (J. Rosenbaum). 
148. Ernst & Young linked transactions in each of the named Plaintiff/predecessor accounts 
to supporting documents by searching the Paragraph 19 documents based on relevant bibliographic 
information and transaction characteristics, and then reviewing pertinent documents to ascertain 
whether 
they provided support for the particular transactions. Tr., June 9, 2003, a.m., at 72:14-74:13 
(J. 
Rosenbaum). Characteristics employed to identify supporting documents included the document and 
transaction dates, lease number, allotment or tract number, IIM account number, transaction amount, 
name of IIM account holder, name of lessee, name of original allottee, reference numbers found in 
transactions descriptions and documents, and any other relevant characteristic that might have 
appeared 
on the ledgers. Tr., June 9, 2003, a.m., at 73:16-74:2 (J. Rosenbaum); Expert Report of Joseph R. 
Rosenbaum, at 6 (Defs.' Ex. 156). 
149. The types of documents that supported a transaction varied based on the nature of the 
transaction and the geographic location where the account was administered. Tr., June 9, 2003, 
a.m., 
at 74:14-75:4 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 7 (Defs.' Ex. 156). Thus, 
a
collection typically was supported by a contract (such as a lease), a bill for collection, or a 
journal 
voucher, whereas a disbursement would more likely be supported by a copy of a check. Tr., June 9, 
2003, a.m., at 74:14-75:4 (J. Rosenbaum). 
150. Ernst & Young's verification of transactions included a review of various types of 
documents and data, such as original ledger pages or statements of account, leases or other 
contracts 
giving rise to the payments at issue, bills for collection that identified the amount of money 
received, 
ownership information set forth in the LRIS system that dictated an account holder's allotment 
interest, 
and probate documents that confirmed the ownership information identified in the LRIS system. 
Tr., 
June 9, 2003, p.m., at 14:6-29:2, 30:11-31:9 (J. Rosenbaum). 151. Ernst & Young was 
able to locate supporting documentation for 86% of the 12,617 transactions it reviewed, 
representing 
93% of the total dollar value of those transactions, which was approximately $1.1 million. Tr., 
June 9, 
2003, a.m., at 75:5-76:19, 77:6-19 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 2, Ex. 
B-1, Ex. B-2 (Defs.' Ex. 156). 
152. The fact that sufficient supporting documentation could not be found with respect to a 
small percentage of the transactions reviewed by Ernst & Young does not suggest that such 
transactions were erroneous, only that adequate supporting documentation could not be found; 
rather, 
given that a large percentage of the transactions reviewed were successfully linked to supporting 
documentation, it is likely that supporting documentation existed at one time also for those 
transactions 
for which no support could be found. Tr., June 9, 2003, a.m., at 76:20-77:5 (J. Rosenbaum). 
153. Ernst & Young's analysis demonstrates that the documents collected pursuant to 
Paragraph 19 are sufficient contemporaneous evidence that 86% of the transactions reviewed by 
Ernst 
& Young, representing 93% of the dollar value of those transactions, did occur and were recorded 
in 
ledgers. Tr., June 9, 2003, a.m., at 56:23-57:2 (J. Rosenbaum); Expert Report of Joseph R. 
Rosenbaum, at 2, 7 & Exs. B-1, B-2 , C. (Defs.' Ex. 156). 
154. Except for one $60.94 collection that was erroneously credited to an individual whose 
account number was similar to that of the intended recipient, Ernst & Young found no indication 
that 
there were any transactions that had not been recorded in the available IIM ledgers. Tr., June 9, 
2003, 
a.m., at 57:3-7, 78:11-79:2 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 2 (Defs.' Ex. 
156). Ernst & Young discovered the single error by performing an analysis of the expected 
payments 
that should have been made and those that were actually made pursuant to the relevant lease. Tr., 
June 
9, 2003, p.m., at 31:11-39:22 (J. Rosenbaum). 
155. The results of Ernst & Young's work in verifying transactions and linking them to 
supporting documentation have been recorded in a software tool developed by Interior referred to 
as 
the Virtual Ledger. Tr., June 9, 2003, a.m., at 79:3-80:3 (J. Rosenbaum); Expert Report of Joseph R. 
Rosenbaum, at 1-2 (Defs.' Ex. 156). The Virtual Ledger contains a listing of the accounts 
reviewed by 
Ernst & Young, along with links to a listing of transactions for each of those accounts, and to a 
listing of 
supporting documentation for each of the transactions in each account. Tr., June 9, 2003, a.m., 
at 
79:8-80:3 (J. Rosenbaum). 
156. After linking the supporting documents to transactions, Ernst & Young compared each 
transaction to its supporting documents to determine whether the ledger transaction accurately 
reflected 
the amount indicated by the supporting documentation, and to identify any variances between the 
calculated amount based on the collection and the actual amount posted to the IIM account. Tr., 
June 
9, 2003, p.m., at 51:16-52:18 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 7-8 & Ex. 
C (Defs.' Ex. 156). 
157. For the $1.1 million in total transaction value that Ernst & Young reviewed, the total 
net 
variance was $3,235.18, or less than 1% of the total transaction value. Tr., June 9, 2003, p.m., 
at 
53:14-54:1 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at Ex. C (Defs.' Ex. 156). 
Of 452 individual variances discovered, 401 were for $1.00 or less, and approximately 270 
were off by approximately one penny, which was most likely due to rounding differences. Tr., June 
9, 
2003, p.m., at 54:2-9 (J. Rosenbaum); Expert Report of Joseph R. Rosenbaum, at Ex. C (Defs.' Ex. 
156). 
158. As part of its analysis, Ernst & Young also performed an "expected versus actual" 
comparison, i.e., it compared available lease information to transaction listings by reviewing the 
available farming and oil/gas leases, analyzing payments due under such leases (which were then 
multiplied by the appropriate fractionated interests), and comparing those amounts against the 
amounts 
indicated in the ledgers. Tr., June 9, 2003, p.m., at 54:17-55:10 (J. Rosenbaum); Report of 
Joseph R. 
Rosenbaum, at 8-9 (Defs.' Ex. 156). 
159. In connection with its lease analysis, Ernst & Young identified and analyzed 80% of the 
leases (representing 98% of the dollar value) relating to farm lease income, and 95% of the 
relevant oil 
and gas leases. Tr., June 9, 2003, p.m., at 57:20-58:3 (J. Rosenbaum). 
160. Ernst & Young researched each discrepancy it found in the lease comparison to 
ascertain whether there was an explanation for the discrepancy. Tr., June 9, 2003, p.m., at 55:11- 
56:1 
(J. Rosenbaum). Where Ernst & Young could not find an explanation for differences between the 
amounts due under the relevant lease and the amount listed in the transaction ledger, the 
differences 
were noted as "Unexplained Differences." Id. at 55:21-56:1 (J. Rosenbaum); Expert Report of 
Joseph 
R. Rosenbaum, at Ex. D (Defs.' Ex. 156). The total unexplained difference between the expected 
lease payments and amounts reflected in the ledgers for all of the transactions in all of the 
accounts 
analyzed by Ernst & Young was $32.04, or .01%. Tr., June 9, 2003, p.m., at 57:11-13 (J. 
Rosenbaum); Expert Report of Joseph R. Rosenbaum, at Ex. D (Defs.' Ex. 156). Thus, as Ernst & 
Young concluded, the amounts shown in the leases were accurately and appropriately reflected in 
the 
account ledgers. Tr., June 9, 2003, p.m., at 58:13-17 (J. Rosenbaum); Expert Report of Joseph R. 
Rosenbaum, at Ex. D (Defs.' Ex. 156). 
161. Ernst & Young also verified the propriety of interest payments made with respect to the 
subject accounts by recalculating the interest using the interest factors that were applicable to 
the 
accounts at the time the interest was paid, and also comparing the interest rates applied to the 
accounts 
with Treasury Bill rates in effect during the relevant time periods. Tr., June 9, 2003, p.m., at 62:16- 
63:18 (J. Rosenbaum). Ernst & Young, noting no material differences between the results of its 
interest 
recalculation and the interest actually credited to the accounts, confirmed that the interest 
payments 
were accurate. Tr., June 9, 2003, p.m., at 63:7-10 (J. Rosenbaum); Expert Report of Joseph R. 
Rosenbaum, at 3 (Defs.' Ex. 156). 
162. The interest rates applied to the accounts of the individuals examined by Ernst & Young 
were reasonable when compared against Treasury Bill rates in effect for those periods and, in 
fact, 
generally were greater than the Treasury Bill rates. Tr., June 9, 2003, p.m., at 63:11-18 (J. 
Rosenbaum); Expert Report of Joseph R. Rosenbaum, at 3 (Defs.' Ex. 156). 
163. Based on the analysis of Ernst & Young, there is no indication that the listing of 
transactions in IIM accounts for the named Plaintiffs and predecessors whose accounts it reviewed 
is 
not substantially accurate, or that the transactions recorded are not substantially supported by 
contemporaneous documentation. Tr., June 9, 2003, p.m., at 68:2-69:13 (J. Rosenbaum); Expert 
Report of Joseph R. Rosenbaum, at 3 (Defs.' Ex. 156). 
(3) Tribal Trust Fund Reconciliation 
164. Interior's previous work regarding tribal trust funds also supports the feasibility of 
the 
accounting set forth in Interior's Historical Accounting Plan. In the early 1990s, Interior 
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 noninvestment 
tribal transactions totaling $15.3 billion. See Financial Management, BIA's Tribal 
Trust 
Fund Account Reconciliation Results, General Accounting Office Report No. AIMD-96-63, at 4 & 16 
(May 1996) (Defs.' Ex. 160). 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. See id. at 4. Arthur Andersen, the firm 
that 
performed the tribal trust reconciliation project, was able to trace 86% of the transactions to 
supporting 
documentation. Tr., June 20, 2003, p.m., at 84:11-85:8 (D. Lasater); see Arthur Andersen Tribal 
Trust Reconciliation Project (Defs.' Ex. 168). Arthur Andersen could not determine positively 
that the 
remaining 14% of transactions were recorded accurately, but this does not mean that 14% of the 
transactions were in error. Tr., June 20, 2003, p.m., at 87:5-88:1 (D. Lasater). 
165. Although Plaintiffs' witness, Mr. Duncan, has regular business dealings with people who 
were involved with the tribal trust reconciliation project, Mr. Duncan did not inquire about the 
comparability of the tribal and individual Indian records. Tr., May 30, 2003, a.m., at 6:15-8:13 
(D. 
Duncan). In fact, there are many similarities, and the same personnel administer both using 
similar 
systems. Tr., June 20, 2003, p.m., at 84:17-24, 89:16-91:15 (D. Lasater). 
(4) Historians' Conclusions 
166. The professional historians retained by OHTA to assist with Interior's efforts to 
provide 
accountings to IIM account holders are firmly of the view that sufficient IIM records are 
available for 
Interior to undertake the accounting described in their Historical Accounting Plan. 
167. Edward Angel, an historian with "twenty years of experience as a professional historian 
examining [r]ecords of the Bureau of Indian Affairs," has found that "an enormous volume of 
documents exists that is potentially useful to an accounting of individual Indian moneys." Expert 
Report 
of Edward Angel, at 46 (Defs.' Ex. 60); see also Tr., June 12, 2003, p.m., at 34:18-35:7, 60:1-4 
(E. 
Angel); Tr., June 16, 2003 p.m., at 10:1-3, 31:23-32:2 (E. Angel).
168. During his professional career, Dr. Angel has reviewed records of the Bureau of Indian 
Affairs in Record Group 75 at the National Archives and Federal Records Centers. Expert Report of 
Edward Angel, at 46 (Defs.' Ex. 60). While inspecting those records, he has found "IIM ledgers; 
leases; audits; reports on timber, grazing, oil and gas, mining, and other natural resources on 
Indian 
lands; reports on the banking and investment of individual Indian moneys; vouchers, bills of 
collection, 
annuity and per capita payment records; and other financial documents from the nineteenth and 
twentieth century that could be used in an historical accounting." Id. 
169. In addition to the National Archives and Federal Records Centers, Dr. Angel is aware 
of other repositories that hold "significant volumes of materials potentially useful to an 
historical 
accounting. Expert Report of Edward Angel, at 47 (Defs.' Ex. 60). For example, Mr. Angel has 
examined records held at the Office of Trust Records in Albuquerque, New Mexico, which contains 
more than 30,000 boxes of materials acquired from Indian agencies, Federal Records Centers, and 
other BIA offices. Id. Among other documents, Dr. Angel and his colleagues found "IIM ledgers; 
IIM 
posting and control records; leases; investment reports; per capita payment data; journal 
vouchers, bills 
of collections, deposit tickets and other financial records; contracts; audit reports; savings 
bond 
transactions; disbursement data; interest posting data; royalty reports; and other documents that 
could 
be used in an historical accounting to individual Indian account holders." Id. 
170. Dr. Angel has also reviewed documents at BIA regional offices and agencies, and 
determined that "[t]hese facilities typically contain recent financial documentation relating to 
activities 
that directly affect the income of individual Native Americans." Expert Report of Edward Angel, 
at 47 
(Defs.' Ex. 60). 
171. Alan S. Newell, the President of HRA and a professional historian with almost 30 years 
experience working with federal Indian records, concluded based on his experience that "[t]here is 
a
vast quantity of relevant historic federal data on Indian resource use and IIM accounting that 
[is] 
available for use in reconciling IIM accounts." Expert Report of Alan S. Newell, at 2 (Defs.' Ex. 
141); 
see also Tr., June 17, 2003 p.m., at 112:18-113:23 (A. Newell). 
172. Mr. Newell also concluded that Interior's Historical Accounting Plan "represents a 
reasonable and prudent approach to utilizing available federal documents in an effort to reconcile 
IIM 
accounts." Expert Report of Alan S. Newell, at 2 (Defs.' Ex. 141); see also Tr., June 18, 2003, 
a.m., 
at 42:17-44:13 (A. Newell). In contrast, "Plaintiffs' dismissal of the extant federal data, 
particularly 
that retained by the Bureau of Indian Affairs, is inappropriate methodology." Expert Report of 
Alan S. 
Newell, at 2. 
(5) Treasury Records 
173. The Department of the Treasury's ("Treasury's") database for retrieving Treasury 
checks on a going-forward basis became operational in April 2000 and continues to operate very 
successfully. Tr., May 13, 2003, a.m. at 8:24-9:1 (D. Hammond). 
174. Treasury has the capability of doing broad searches of the vast range of Treasury 
securities. To accomplish that, however, such searches must be put into the context of time 
period, 
nature of security ownership, and nature of the record being looked for. Tr., May 13, 2003, a.m. 
at 
13:8-12 (D. Hammond). 
175. Treasury prepared a very comprehensive inventory of 14X6039 records. Tr., May 13, 
2003, a.m. at 63:12 (D. Hammond). 
176. The primary Treasury information relevant to Interior's Historical Accounting Plan is
disbursement information and summary level balance information for particular time periods. Tr., 
May 
13, 2003, a.m. at 78:2-5 (D. Hammond). 
177. During the Phase 1 trial, Treasury was operating under a records retention schedule 
that required Treasury to maintain original checks for six years, seven months. After that, they 
were 
destroyed. Tr., May 13, 2003, a.m. at 89:13-18 (D. Hammond). 
178. Digital images of checks are available for certain years. Tr., May 13, 2003, a.m. at 
109:11-12 (D. Hammond). 
179. Treasury has detailed information on securities records for several years. Tr., May 13, 
2003, p.m. at 8:9-12 (D. Hammond). 
180. Treasury has verified the accuracy of certain aspects of the inventory it has conducted 
of documents that it believes are necessary to support an accounting. Tr., May 13, 2003, p.m. at 
15:25-16:1 (D. Hammond). 
181. Treasury's summary level information will support the accounting balances 
reconstructed by Interior. Tr., May 13, 2003, p.m. at 20:14-17 (D. Hammond). 
182. For the most part, Treasury has backup systems able to address inadvertent document 
destructions. Tr., May 13, 2003, p.m. at 68:17-20 (D. Hammond). 
C. Interior Defendants' Fiduciary Obligations Compliance Plan 
183. Interior Defendants' Fiduciary Obligations Compliance Plan addresses the fiduciary 
obligations at issue in this case. 
184. On September 17, 2002, the Court ordered Interior to file "a plan for bringing 
themselves into compliance with the fiduciary obligations that they owe to the IIM beneficiaries." 
Cobell v. Norton, 226 F. Supp. 2d 1, 148 (D.D.C. 2002), vacated in part by No. 02-5374, 2003 WL 
21673009 (D.C. Cir. July 18, 2003). On January 6, 2003, in accordance with this Court's Order of 
September 17, 2002, Interior Defendants filed the Fiduciary Obligations Compliance Plan. 
Interior's 
Plan (Defs.' Ex. 1); Interagency Procedures Handbook (Defs.' Ex. 2). 
185. The fiduciary obligations at issue in this case and addressed in the Fiduciary 
Obligations 
Compliance Plan are the "fiduciary duties declared by the Court in December of 1999 and listed in 
the 
1994 Act." Cobell v. Norton, 226 F. Supp. 2d at 135. The fiduciary duty declared by the Court in 
December of 1999 is the duty under the 1994 Act 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." Cobell v. Babbitt, 91 F. Supp. 2d at 58; see 25 U.S.C.A. 4011(a), (b). 
186. The "fiduciary duties . . . listed in the 1994 Act," 226 F. Supp. 2d at 135, as 
identified 
by the Court in 1999, are the duties to: 1) account for the daily and annual balance of all funds 
held in 
trust by the United States for the benefit of individual Indians; 2) provide all account holders 
with a 
periodic statement of performance; 3) perform an annual audit of all funds held in trust; 4) 
provide 
adequate systems for accounting and reporting trust fund balances; 5) provide adequate controls 
over 
receipts and disbursements; 6) provide periodic, timely reconciliations sufficient to assure 
accuracy of 
accounts; 7) determine accurate cash balances; 8) establish written policies and procedures for 
trust 
fund management and accounting; and 9) provide adequate staffing, supervision and training for 
trust 
fund management and accounting. See Cobell v. Babbitt, 91 F. Supp. 2d at 39-40; 25 U.S.C. 
162a(d)(1)-(7), 4011. 
187. In compliance with the Court's September 17, 2002 Order, Interior Defendants' 
Fiduciary Obligations Compliance Plan addresses each of these "fiduciary obligations." Interior 
Defendants were not ordered to address in the plan filed on January 6, 2003 and did not do so 
any 
other fiduciary obligations it may have.
1. Interior's Initial Efforts To Achieve Compliance With The 1994 Act 
188. The process leading up to Interior's Fiduciary Obligations Compliance Plan included 
the Strategic Plan to Implement the Reforms Required by the American Indian Trust Fund Reform Act 
of 1994 ("Strategic Plan"), as supported by the Needs Analysis Project Final Report from MACRO 
International ("MACRO"), the High-Level Implementation Plan ("HLIP"), and the Revised HLIP. a. The Strategic Plan/MACRO Study 
189. The 1994 Act requires the Special Trustee to develop a "comprehensive strategic plan" 
for trust management reform. 25 U.S.C. 4043(a)(1) (2001). The first Special Trustee, Paul 
Homan, 
submitted his Strategic Plan to the Secretary and Congress in April 1997. "Among other things, 
the 
plan called for the reorganization of Indian trust fund management and the centralization of 
recordkeeping, 
changes that may have required legislative authorization." Cobell v. Norton, 240 F.3d 
1081, 
1091 (D.C. Cir. 2001). 
190. The MACRO study was done to support the Strategic Plan, which included a provision 
to remove the entire trust from the Department of the Interior. The MACRO approach was similar 
to, 
but not as in-depth as, the current As-Is analysis conducted by Interior. Tr., June 25, 2003, 
p.m., at 
37:23-38:20 (R. Swimmer); Tr., June 27, 2003, a.m., at 75:11-76:8 (R. Swimmer). The MACRO 
study involved field interviews and examination of trust processes. MACRO study at i (Pls.' Ex. 
290); 
Tr., June 27, 2003, a.m., at 53:9-55:22 (R. Swimmer). The MACRO study concluded that major 
problems with the existing trust system included a lack of accounting and control of land, and 
some of 
those problems still exist. MACRO study at ii (Pls.' Ex. 290); Tr., June 27, 2003, a.m., at 55:23- 
57:3 
(R. Swimmer). 
191. The MACRO study recommended a single trust organization with management control 
over resources and financial assets, as well as implementation and operation of a new IT 
infrastructure, 
both of which are still needed today. Tr., June 27, 2003, a.m., at 57:19-25 (R. Swimmer).
b. HLIP/Revised HLIP 
192. Interior Secretary Babbitt's plan, HLIP, issued in July 1998, implemented portions of 
the Strategic Plan. It identified specific subprojects, or tasks, that were to be completed in 
reforming 
trust management practices. HLIP was modified by Revised HLIP, which was issued on February 29, 
2000. 
193. When Mr. Swimmer arrived, concerns existed about the HLIP process, which 
consisted of eleven specific tasks, and the possibility that each of the individual tasks could be 
completed without accomplishing trust reform. For example, the probate backlog could be cleared, 
but 
it would reoccur because the business processes giving rise to the backlog hadn't been reformed. 
Tr., 
June 25, 2003, p.m., at 22:24-23:19 (R. Swimmer). The HLIP did not fully consider the 
interconnection between projects and the continuity of the reform process. Tr., July 1, 2003, 
p.m., at 
77:11-79:24 (R. Swimmer). The HLIP also did not take into account the effects of fractionation, 
which 
makes the trust almost unmanageable. Tr., June 25, 2003, p.m., at 23:23- 24:6 (R. Swimmer). 
194. The HLIP was a reasonable plan and did accomplish some notable reform efforts, 
including re-engineering of MMS; successful implementation of the Trust 3000 system, which 
Interior 
calls the Trust Fund Accounting System ("TFAS"); work on trust systems architecture, and 
development of trust policies and procedures. Tr., June 25, 2003, p.m., at 25:5-26:1 (R. 
Swimmer); 
Tr., May 12, 2003, a.m., at 40:5-15 (R. Fitzgerald). 
195. Everything described in the HLIP is included in the business processes or goals and 
objectives of the Comprehensive Trust Management Plan, Tr., June 25, 2003, p.m., at 31:20- 32:10; 
39:1-5 (R. Swimmer), and can be traced from the HLIP to the Comprehensive Trust Management 
Plan. "Crosswalk" between HLIP and Comprehensive Trust Management Plan (Defs.' Ex. 316); Tr., 
July 1, 2003, p.m., at 74:9-90:20 (R. Swimmer); Tr., July 2, 2003, a.m., at 3:14-4:7, 5:19-10:7 
(R. 
Swimmer). 
196. As Director of the Office of Indian Trust Transition, Mr. Swimmer was also 
responsible for preparing the Quarterly Reports submitted to the Court, beginning with the Eighth 
Report. Tr., June 25, 2003, p.m., at 21:23-22:3 (R. Swimmer). Mr. Swimmer revised the Quarterly 
Report drafting process by designating program managers who have specific responsibility for a 
particular section of the report based on their involvement in the trust reform process and 
requiring each 
program manager to draft, substantiate, discuss, and participate in finalizing his or her section 
of the 
quarterly report. Tr., June 25, 2003, p.m., at 26:2-27:15 (R. Swimmer). 
197. As Interior began to move to a more comprehensive approach to trust reform, it 
expanded the information contained in the Quarterly Reports beyond simply reporting on the status 
of 
HLIP tasks. Tr., June 25, 2003, p.m., at 24:12-25: 4 (R. Swimmer). 
2. Development of Interior's Fiduciary Obligations Compliance Plan 
198. Interior's Fiduciary Obligations Compliance Plan, which focuses on Interior's individual 
Indian trust fund accounting obligations under the 1994 Act, is part of a much larger effort, 
which is 
embodied in Interior's Comprehensive Trust Management Plan. 
a. Comprehensive Trust Management Plan 
199. In January 2002, the Secretary asked Mr. Swimmer, who was then Director of the 
Office of Indian Trust Transition, to work on putting together a comprehensive trust management 
plan 
that would not only incorporate HLIP issues but also include a broader array of trust-related 
initiatives. 
Eighth Quarterly Report at 50 (Defs.' Ex. 43); Tr., June 25, 2003, p.m., at 24:12-25:4 (R. 
Swimmer); 
Tr., June 26, 2003, a.m., at 62:6-13 (R. Swimmer); Tr., July 2, 2003, a.m., at 40:1- 41:18 (R. 
Swimmer). The Comprehensive Trust Management Plan was finalized in March 2003. Tr., June 25, 
2003, p.m., at 30:15-18 (R. Swimmer).
200. In late 2001 and early 2002, Electronic Data Systems Corporation ("EDS"), a 
consultant hired by Interior to give an independent assessment of various trust management 
activities, 
issued several reports evaluating Interior's practices. See DOI Trust Reform: Trust Reform 
Final 
Report and Roadmap, January 24, 2002 (Defs.' Ex. 22); DOI Trust Reform: Trust Reform, 
Observations and Recommendations, December 6, 2001 (Defs.' Ex. 23); DOI Trust Reform: Interim 
Report and Roadmap for TAAMS and BIA Data Cleanup, November 12, 2001 (Defs.' Ex. 24); DOI 
Trust Reform: TAAMS/BIA Data Cleanup Recommendations: "For Comments" Report, October 31, 
2001 (Defs.' Ex. 25); DOI Trust Reform: TAAMS/BIA Data Cleanup Observations, October 10, 
2001 (Defs.' Ex. 26). Building upon the recommendations from the EDS reports, the Comprehensive 
Trust Management Plan was developed beginning in early 2002 by a group that initially consisted of 
people in BIA and OST, and later expanded to include "all of the agencies of Interior that deal 
with any 
manner of the trust," including MMS, OHTA, and others. Tr., June 25, 2003, p.m., at 29:14-25 (R. 
Swimmer). 
201. The initial work on the Comprehensive Trust Management Plan developed goals and 
objectives for trust management activities; these goals and objectives were shared with a tribal 
subcommittee, which generally agreed with them. Tr., June 25, 2003, p.m., at 30:5-14 (R. 
Swimmer); 
Tr., June 30, 2003, a.m., at 27:18-28:16 (R. Swimmer). The Comprehensive Trust Management Plan 
was designed to satisfy the 1994 Act requirement for a strategic plan and also provide a plan to 
guide 
trust reform and trust management in the future. Tr., June 25, 2003, p.m., at 30:1-4 (R. 
Swimmer). 
202. The Comprehensive Trust Management Plan was not submitted on January 6, 2003, 
because, in light of the September 17 Order, Interior broke off from its Comprehensive Trust 
Management Plan efforts (which were well underway) to complete that portion of overall trust 
reform 
dealing with individual Indian trust funds and trust fund management, which is reflected in the 
Fiduciary 
Obligations Compliance Plan. Tr., June 25, 2003, p.m., at 48:9-19 (R. Swimmer). 
(1) Reorganization is Intended to Focus and Consolidate 
Interior's Trust Operations 
203. As work progressed on the Comprehensive Trust Management Plan, it became 
apparent that the goals and objectives could not be attained without a different organizational 
structure 
to resolve the existing problem that each office did its own thing; this reorganization is "an 
integral part" 
of the Comprehensive Trust Management Plan. Tr., June 25, 2003, p.m., at 30:19-31:10 (R. 
Swimmer). Prior reorganization attempts had not been acceptable to the tribes or Congress. Tr., 
June 
25, 2003, p.m., at 30:19-24 (R. Swimmer). 
204. The As-Is study was conducted by extensive discussions throughout Interior and the 
twelve BIA regions with subject matter experts, tribal leaders, and others. Fiduciary Obligations 
Compliance Plan at 7 (Defs.' Ex. 1), Reorganization Materials Provided to Tribal Task Force 
Members at 1 (Defs.' Ex. 3); Tr., June 27, 2003, a.m., at 43:22-48:19 (R. Swimmer). During the 
consultation process, individuals and tribes had the opportunity to comment on the reorganization. 
Tr., 
July 1, 2003, p.m., at 60:12-63:12 (R. Swimmer). Under the reorganization, BIA and OST would 
work closely to administer fiduciary activities for the Indian trust, individual and tribal. Tr., 
June 25, 
2003, p.m., at 35:15-25 (R. Swimmer). 
205. The reorganization will result in a structure similar to that in a private bank in which 
the 
trust and non-trust activities are segregated so that it is possible to focus efforts on fiduciary 
activities. 
Tr., June 25, 2003, p.m., at 36:9-19 (R. Swimmer). 
(a) BIA Focus on Trust Duties 
206. Under the Comprehensive Trust Management Plan, all BIA activities relating to the 
trust would be segregated under line authority, so that BIA employees who have trust responsibilities 
could focus their efforts on trust duties rather than trust and other responsibilities. This 
reorganization is 
intended to change the culture from treating trust as "a program activity" to treating it as "a 
fiduciary 
duty activity." Tr., June 25, 2003, p.m., at 34:24-35:14, 36:1-19 (R. Swimmer); Tr., June 26, 
2003, 
a.m., at 76:10-17 (R. Swimmer). 
207. Under the Comprehensive Trust Management Plan, BIA would have deputy 
superintendents for trust and deputy regional directors for trust activities. Tr., June 25, 2003, 
p.m., at 
35:17-20 (R. Swimmer). Numerous people at Interior are committed to resolving the issue of the 
adequacy of BIA management so that the trust reform effort will be successfully implemented. Tr., 
May 12, 2003, a.m., at 18:17-19:7 (R. Fitzgerald). 
(b) OST Statutory Oversight Duties Plus Financial 
Asset Management 
208. Under the Comprehensive Trust Management Plan, the Office of the Special Trustee 
("OST") would increase its oversight activities and focus on the trust beneficiaries by having 
trust 
administrators and trust officers working in the field with their BIA counterparts. Tr., June 25, 
2003, 
p.m., at 35:15-25 (R. Swimmer). 
209. As part of reorganization, an Audit and Review Branch has been established within 
OST to assess internal controls at the agencies as well as compliance with policies, procedures, 
and 
regulations. Tr., June 30, 2003, a.m., at 54:5-56:1 (R. Swimmer); Tr., June 30, 2003, p.m., at 
52:25- 
55:5 (R. Swimmer). 
(c) Beneficiary-Oriented Focus Local, Regional 
Offices to be Staffed with OST/BIA Trust 
Personnel 
210. The Comprehensive Trust Management Plan is intended to change the way the trust 
operates by creating the type of relationship with regard to beneficiaries that is seen in private 
trusts, in 
part by creating a whole new division of "trust officers" under the direction of the Special 
Trustee who 
would be located at agencies and would deal directly with beneficiaries. Defs.' Ex. 27 at 2.5.1; 
Tr., 
June 25, 2003, p.m., at 32:24-34:23 (R. Swimmer). 
211. Trust reform will result in increased levels of staffing. Tr., June 26, 2003, a.m., at 
68:9- 
14 (R. Swimmer). 
(2) Reengineering Trust Business Processes As-Is and To- 
Be Analyses 
212. The trust reform process outlined in the Comprehensive Trust Management Plan 
requires movement from where Interior is now with regard to trust processes the "As-Is" 
component 
to identifying how trust processes and administration will be re-engineered to permit effective 
trust 
administration the "To-Be" model. Tr., June 25, 2003, p.m., at 31:11-19 (R. Swimmer). 
213. Each of the core trust processes is under the control of a "process sponsor" who is 
responsible for thoroughly understanding the process and its variations and for developing the "To- 
Be" 
version of the process and who will be held accountable. Tr., June 25, 2003, p.m., at 44:25-47:9 
(R. 
Swimmer). 
(a) As-Is Analysis is Completed 
214. The As-Is study, Defs.' Ex. 18, is "a very comprehensive and exacting study," 
conducted in conjunction with EDS, of eight trust business processes beneficiary services, 
probate,
title, appraisal, cadastral survey, surface asset management, subsurface asset management, and 
accounting management (individual assets, tribal assets, and investments) to identify how the 
processes are currently being done and the reasons for variances across 85 agencies and field 
offices 
and twelve regional offices within BIA as well as MMS and BLM. Comprehensive Trust Management 
Plan at 6.2 (Defs.' Ex. 27); Tr., June 25, 2003, p.m., at 36:20- 37:22 (R. Swimmer). It was 
completed by March 2003. Tr., June 27, 2003, a.m., at 79:25-80:5 (R. Swimmer). 
(b) To-Be Analysis is Underway 
215. The To-Be portion of the Comprehensive Trust Management Plan will take the core 
business processes identified in the As-Is study and, with the assistance of Interior's knowledge 
and 
experience across the country as well as that of consultants, identify the best possible business 
practices 
and develop a model for how the trust business should be run, including any exceptions necessary 
because of particular factors such as local or tribal law. Comprehensive Trust Management Plan 
at 6- 
4 (Defs.' Ex. 27); Tr., June 25, 2003, p.m., at 43:6- 44:20 (R. Swimmer). 
216. The To Be process will result in the development of benchmarks and time lines by the 
process managers for reforming the business processes identified in the As-Is report. Tr., June 
25, 
2003, p.m., at 38:21-39:24 (R. Swimmer). 
217. The To-Be process is expected to be completed in Spring 2004, and implemented by 
the end of 2004 or early 2005, but the To-Be models of the core trust business processes are 
already 
underway and will be introduced in pilot agencies before then. Tr., June 25, 2003, p.m., at 47:11- 
48:8 
(R. Swimmer); Tr., June 27, 2003, a.m., at 80:6-81:8 (R. Swimmer). 
(3) Ongoing Monitoring/Improvement of Trust Operations 
218. The Comprehensive Trust Management Plan, unlike HLIP, provides not only for 
accomplishment of tasks but also for processes that will prevent problems from recurring. Tr., 
June 25, 
2003, p.m., at 41:22-42:16 (R. Swimmer). 
219. Trust reform is an ongoing process that will involve continuous improvement and further 
development of the business practice models. Tr., June 27, 2003, a.m., at 82:9-83:6 (R. Swimmer); 
Comprehensive Trust Management Plan at 11 (Defs.' Ex. 27); Tr., June 30, 2003, a.m., at 35:1- 
36:11, 
37:4-38:2 (R. Swimmer). 
220. Interior recognizes that accomplishing trust reform will require a significant change in 
Interior's culture, and the Comprehensive Trust Management Plan reflects Interior's commitment to 
making the necessary changes to permit trust processes to be carried out in a fundamentally 
different 
way throughout all offices and bureaus involved in trust operations. Comprehensive Trust 
Management 
Plan at 6-5 (Defs.' Ex. 27); Tr., June 25, 2003, p.m., at 90:4- 92:17 (R. Swimmer); Tr., June 26, 
2003, a.m., at 76:10-17(R. Swimmer). 
b. Relationship Between Comprehensive Trust Management Plan 
and Fiduciary Obligations Compliance Plan 
221. The major differences between the Comprehensive Trust Management Plan and the 
Fiduciary Obligations Compliance Plan are that the Comprehensive Trust Management Plan reflects 
that Interior is a trustee not only for the individual Indian trust but also for the tribal trust 
and that the 
Comprehensive Trust Management Plan reflects trust reform initiatives relating to land and 
natural 
resources management, not just funds management. Tr., July 2, 2003, a.m., at 10:8-11:8 (R. 
Swimmer). 
222. The January 6, 2003 Fiduciary Obligations Compliance Plan uses that portion of the 
Comprehensive Trust Management Plan that "deals with funds, with just the funds accounting the 
collection of the funds, the investment, disbursement of the funds." Tr., June 25, 2003, p.m., at 
32:11- 
19 (R. Swimmer). 
223. It is "a condensed plan dealing with the funds of the trust," Tr., June 26, 2003, a.m., at 
62:14-19 (R. Swimmer), which responds to the Court's September 17, 2002 Order requiring Interior's 
plan for trust funds management and various standards related to that. Tr., June 30, 2003, a.m., 
at 4:4- 
5:13 (R. Swimmer). 
224. The Comprehensive Trust Management Plan contains "virtually everything" that is in the 
Fiduciary Obligations Compliance Plan, together with other components of the overall trust reform 
plan 
that relate to tribal trust issues and natural resource management and the linkage between 
different plan 
components. Tr., July 1, 2003, p.m., at 63:16-65:4 (R. Swimmer).
3. Key Components of the Fiduciary Obligations Compliance Plan 
225. The Fiduciary Obligations Compliance Plan is a stand-alone document regarding trust 
funds management from identifying ownership through collection, investment, and distribution of 
funds. Interior's Plan (Defs.' Ex. 1); Tr., June 25, 2003, p.m., at 48:23-49:9 (R. Swimmer). 
226. The Fiduciary Obligations Compliance Plan details the processes underway to reform 
Interior's trust funds management operations. See Interior's Plan at 17-100 (Defs.' Ex. 1). 
Interior's 
trust reform is guided by "applicable federal statutes, Interior regulations, the Departmental 
Manual, 
Office of Management and Budget (OMB) circulars, Department of Treasury guidelines, generally 
accepted accounting and auditing standards, its employees' and consultants' experience and 
expertise, 
as well as other sources of relevant fiduciary practices." Id. at 15. 
227. Interior's Fiduciary Obligations Compliance Plan, as part of the comprehensive trust 
reform effort, has two key components. First, Interior will restructure and consolidate trust 
management and administration within the BIA and the OST, with BIA concentrating on managing the 
land and natural resources held in trust and OST continuing to exercise its statutory trust 
oversight 
functions while assuming greater responsibility for financial management, receipt, and 
disbursement of 
trust funds and records management. Interior's Plan at 5, 44-77, 81-82 (Defs.' Ex. 1); see also, 
e.g., 
Eleventh Quarterly Report at 29-30 (Defs.' Ex. 45); Twelfth Quarterly Report at 29 (Defs.' Ex. 
46); 
Thirteenth Quarterly Report at 39 (Defs.' Ex. 47). 
228. Second, now that the As-Is analysis has been completed, Interior is developing the To- 
Be model for conducting all future trust operations by adopting the existing best practices and reengineering 
the ones that are not. Interior's Plan at 9, 36-43 (Defs.' Ex. 1); see also, e.g., 
Eleventh 
Quarterly Report at 3, 6, 29-30, 33-38 (Defs.' Ex. 45); Twelfth Quarterly Report at 10-11, 47-48 
(Defs.' Ex. 46); Thirteenth Quarterly Report at 43-48 (Defs.' Ex. 47). 
229. It is important to note that significant progress has already been made on a number of 
Interior's trust reform initiatives. For example, Interior is already substantially in compliance 
with one of 
the most significant components of any trust operation one that directly relates to the 
accounting 
obligation at issue in this lawsuit. Interior currently can reliably and predictably account for 
current 
funds received into and disbursed from the TFAS, a state-of-the-art trust accounting and 
investment 
system that is widely used in private trust operations, and that is subject to regular third-party 
trust 
audits. Interior's Plan at 44-62 (Defs.' Ex. 1); see also, e.g., Eleventh Quarterly Report at 64- 
65 
(Defs.' Ex. 45); Twelfth Quarterly Report at 62 (Defs.' Ex. 46); Thirteenth Quarterly Report at 60 
(Defs.' Ex. 47). As Interior's Fiduciary Obligations Compliance Plan notes, however, although 
TFAS 
can handle and account for all funds that flow in and that are disbursed, it is only as good as 
the 
information that flows into it, and it is the ongoing process of identifying and collecting IIM 
revenues, 
verifying account and beneficiary data, transmitting information regarding receipts and 
disbursements, 
and improving related trust processes that is the focus of Interior's Comprehensive Trust 
Management 
Plan. Interior's Compliance Plan at 3, 44, 46, 53 (Defs.' Ex. 1). 
a. Current Accounting/TFAS 
230. Under the Fiduciary Obligations Compliance Plan, "Current Accounting" refers to that 
portion of the process involving TFAS, where the funds have already been collected and deposited, 
and BIA has provided documentation to OST regarding which specific accounts the funds belong in 
and to whom they should be disbursed. Interior's Plan at 44 (Defs.' Ex. 1); Tr., June 25, 2003, p.m., 
at 75:2-25 (R. Swimmer). 
231. With the exception of any adjustments which may be needed to TFAS opening 
balances as a result of the historical accounting, the current accounting system is in balance. 
Tr., June 
25, 2003, p.m., at 76:1-5 (R. Swimmer). 
232. Interior is currently providing quarterly reports to beneficiaries, but they do not yet 
identify the underlying asset from which the income arises; Interior's trust reform process 
includes 
development of an automated process for verifying and reporting the underlying assets. Fiduciary 
Obligations Compliance Plan at 44 (Defs.' Ex. 1); Tr., June 25, 2003, p.m., at 76:6-77:20 (R. 
Swimmer). 
233. TFAS accurately maintains information. Tr., May 2, 2003, p.m., at 28:16-18 (P. 
Homan). TFAS is a good system, but its auditors have not issued a "clean" opinion because they 
are 
uncomfortable with the information flowing into the system. Tr., May 8, 2003, p.m., at 36:22 - 
37:3 (R. 
Fitzgerald). 
b. Current Ownership, Collection, Deposit and Transfer 
234. Under the Fiduciary Obligations Compliance Plan, Interior will identify the current 
ownership of trust property and of income from that property and ensure that the correct amount of 
funds are collected, transferred to Treasury, and deposited into the proper account. Interior's 
Plan at 
17 (Defs.' Ex. 1); Tr., June 25, 2003, p.m., at 55:20-57:7 (R. Swimmer). 
235. The data quality and integrity initiative includes creating an accurate and complete OST 
file for each IIM account holder and making sure that all data relating to IIM account holders are 
consistent and accessible for all applications throughout Interior ("data cleanup"). Tr., June 
25, 2003, 
p.m., at 62:15-64:6 (R. Swimmer); Tr., June 30, 2003, p.m., at 59:4-60:19 (R. Swimmer); Tr., July 
1, 
2003, p.m., at 79:25-81:22 (R. Swimmer); see also "Crosswalk" Between HLIP and the 
Comprehensive Trust Management Plan at 3 (Defs.' Ex. 316). 
236. Data cleanup, beginning with the HLIP, is intended to eliminate duplicate accounts, 
standardize account-holder names, and generally consolidate account-holder information. Tr., June 
26, 
2003, p.m., at 36:3-38:9 (R. Swimmer). The status of data cleanup has been reported in the ninth 
through thirteenth quarterly reports. Quarterly Reports, Nine to Thirteen (Defs.' Exs. 43, 44, 
45, 46, 
47); Tr., July 2, 2003, a.m., at 18:3-39:16, 41:19-44:14 (R. Swimmer). 
237. Interior, with the assistance of outside contractors, developed critical data elements 
that 
needed to be cleaned up and maintained in that cleaned-up state. Tenth Quarterly Report at 45 
(Defs.' 
Ex. 44); Eleventh Quarterly Report at 47 (Defs.' Ex. 45); Tr., July 2, 2003, a.m., at 21:10-25:14; 
41:19-44:14 (R. Swimmer). Data cleanup efforts are now focused on pilot agencies until Interior's 
new IT architecture is in place, as reported in the Thirteenth Quarterly Report (Defs. Ex. 47). 
Tr., July 
1, 2003, p.m., at 82:5-84:25 (R. Swimmer); Tr., July 2, 2003, a.m., at 24:23-39:7, 41:19-44:14 (R. 
Swimmer). 
(1) Title Systems 
238. Interior's multiple systems for recording title do not preclude obtaining the necessary 
title information. Tr., June 25, 2003, p.m., at 57:8-58:14 (R. Swimmer); Tr., June 26, 2003, 
p.m., at 
43:11-23, 52:3-6 (R. Swimmer). Because the two Interior land-related systems (LRIS and IRMS) 
operated independently, the information they contain is not necessarily consistent and the title 
system is 
not sufficient given today's technology. Tr., June 26, 2003, p.m., at 38:11-39:12, 43:1-23 (R. 
Swimmer). 
239. Under the Comprehensive Trust Management Plan, Interior will implement a single title 
recording system, based on the title module used with the TAAMS system, to ensure consistency of 
information across regions. Tr., June 25, 2003, p.m., at 58:15-60:6 (R. Swimmer); Tr., June 26, 2003, 
p.m., at 43:16-23, 51:25-52:12 (R. Swimmer). 
240. Although there may be inaccuracies, and the systems currently lack internal controls, 
that does not mean that all of the title data are inaccurate. Tr., June 26, 2003, p.m., at 43:24- 
44:15, 
45:8-46:4, 46:14-23 (R. Swimmer). 
241. BIA is the source of title records for Indian lands, and BIA's title reports are 
accepted 
and relied on by third parties. Tr., June 26, 2003, p.m., at 49:3-51:9 (R. Swimmer). 
242. When the To-Be model is implemented, Interior expects that short-term leases would 
be recorded on an automated database at the agency, whereas documents affecting title would be 
recorded in a formal title system in the Land Title Record Office, similar to the way such 
documents are 
handled in a county recorder's system. Tr., June 30, 2003, p.m., at 66:25-71:15 (R. Swimmer). 
(2) Collections/Accounts Receivable 
243. Collections are currently being handled in a number of different ways throughout 
Interior, but the necessary collections information can still be obtained. Tr., June 25, 2003, 
p.m., at 
60:7-61:6 (R. Swimmer). 
244. Even though it is improper not to have a system to account for monies that are due, the 
absence of an accounts receivable system in the past did not necessarily increase the risk of noncollection; 
implementation of an accounts receivable system will allow management to monitor 
collection more closely. Tr., June 26, 2003, a.m., at 78:15-81:23 (R. Swimmer). 
245. Under the Comprehensive Trust Management Plan, Interior will implement a consistent 
collections and receivables system across regions. Tr., June 25, 2003, p.m., at 60:19-61:9 (R. 
Swimmer). As an interim step, Interior will implement a lockbox system so that payments will be 
deposited directly. Tr., June 25, 2003, p.m., at 61:10-21 (R. Swimmer). 
246. Interior is examining the different practices that would need to be accommodated in a 
standardized accounts receivable system, and is talking with the contractor who already operates 
TFAS to determine whether another module could be incorporated into that system. Tr., June 30, 
2003, a.m., at 49:14-53:18 (R. Swimmer). 
247. OST has asked Interior's IG to take over the audit function and to expand it beyond an 
audit of TFAS accounting to include collection of revenues and review of internal controls 
relating to 
collections. Audit of TFAS (Defs.' Ex. 315); Tr., July 1, 2003, p.m., at 72:14 -74:2 (R. 
Swimmer); 
Tr., July 2, 2003, p.m., at 43:12-45:12 (R. Swimmer). 
248. Interior has a high level of confidence in TFAS (OTFM's Trust 3000 system) with 
regard to the accuracy of transactions and daily and annual balances once cash is received and 
processed into the system. Interior is working to resolve concerns regarding the front-end 
processes of 
collecting and processing cash before the transaction makes it into TFAS, and expects to expand 
the 
current TFAS audit to include the entire cash collection process. Tr., June 4, 2003, p.m., at 
91:23- 
94:1 (J. Cason). 
c. Universal Functions 
249. Interior's trust reform process includes "universal support functions" workforce 
planning (training, staffing, policies and procedures), information technology, and records 
management 
which are necessary to all of the trust business processes. Fiduciary Obligations Compliance 
Plan at 
78 (Defs.' Ex. 1); Tr., June 25, 2003, p.m., at 81:23-83:10 (R. Swimmer). These tasks have been 
carried over from the HLIP and developed further in connection with the Comprehensive Trust 
Management Plan. "Crosswalk" Between HLIP and the Comprehensive Trust Management Plan 
(Defs.' Ex. 316); Tr., July 2, 2003, a.m., at 3:14-4:7, 5:19-8:3 (R. Swimmer). 
250. The status of IT security is reported in Interior's Quarterly Reports, and Mr. Cason is 
involved in the reporting process. Tr., June 4, 2003, a.m., at 34:22-39:22 (J. Cason). Interior 
has had 
an enterprise architect on staff and working on trust-related IT systems architecture for the last 
nine to
twelve months. Tr., June 4, 2003, a.m., at 45:16-46:23 (J. Cason). 251. Records management 
has implications for both historical accounting and trust reform the goal is not just to get the 
records 
for historical accounting purposes, but also to do a better job creating and managing records so 
that 
they can be retrieved more easily in the future. Tr., June 4, 2003, a.m., at 39:23-40:16 (J. 
Cason). 
d. Fractionation 
252. Fractionation makes it increasingly difficult and costly to administer increasing 
numbers 
of small accounts with very little activity; no private trust would do so. Tr., June 25, 2003, 
p.m., at 
83:22-84:15, 86:1-87:7 (R. Swimmer); Tr., June 26, 2003, a.m., at 75:19-76:9 (R. Swimmer). Many 
of the IIM accounts are so small as to be meaningless even to the beneficiaries. Tr., May 8, 
2003, 
p.m., at 69:12-16 (R. Fitzgerald). 
253. Fractionation is an issue that Congress needs to resolve, and more work is needed; 
under the Indian Land Consolidation Act project as currently funded, for example, the rate of 
fractionation still results in fractionated interests accumulating more rapidly than Interior can 
arrange for 
them to be purchased. Tr., June 25, 2003, p.m., at 87:8-89:14 (R. Swimmer). 
254. Fractionation will ultimately have to be resolved through some form of buyout in which 
small accounts can be closed and small interests in property acquired. Tr., June 25, 2003, p.m., 
at 
88:13-89:14 (R. Swimmer). 
255. Fractionation issues have been reported to the Court in quarterly reports beginning with 
the Eighth Report to the Court. Tr., June 25, 2003, p.m., at 89:23-90:3 (R. Swimmer). 
4. IIM Account Administration Standards are Described in the Fiduciary 
Obligations Compliance Plan and the Comprehensive Trust 
Management Plan 
256. This Court ordered Interior Defendants to describe in their Plan "the standards by 
which they intend to administer the IIM trust accounts . . . ." Cobell v. Norton, 226 F. Supp.2d 
1, 162 
(D.D.C. 2002) (emphasis added). Accordingly, Interior Defendants' Fiduciary Obligations 
Compliance Plan describes standards governing IIM account administration without specifically 
addressing related matters, such as trust asset management. The standards governing the broader 
range of Indian trust activities are set forth in the Comprehensive Trust Management Plan and the 
As-Is 
study, which were offered as trial 1.5 exhibits to provide context for the development and 
substance of 
the Fiduciary Obligations Compliance Plan. 
257. In articulating the standards this Court required to be addressed, the Fiduciary 
Obligations Compliance Plan starts with the 1994 Act itself. Interior's Plan at 13-15 (Defs.' Ex. 
1). 
However, the applicable standards are not limited to the 1994 Act; they include various others 
statutes that relate to trust funds accounting activities. Accordingly, the Plan describes these 
standards along with its discussions of the corresponding activities. See id. at 25-26 (funds 
collection, 
deposit, and transfer processes), 48 (accounting for and reporting trust fund balances), 52-53 
(controls 
over receipts and disbursements), 59-60 (annual audits), 64-68 (records management), 79-80 
(staffing 
and workforce planning), 86-87 (computer and business systems architecture), 93-94 (electronic 
records security) (Defs.' Ex. 1). 
258. In addition to specific statutory and regulatory requirements, the Fiduciary Obligations 
Compliance Plan incorporates "other sources of relevant fiduciary practices" and the Secretary's 
trust 
principles. Interior's Plan at 15, 48 (Defs.' Ex. 1); Tr., June 25, 2003, p.m., at 51:1-52:9 (R. 
Swimmer); Tr., June 30, 2003, a.m., at 58:1-7, 65:22-66:14 (R. Swimmer). The Secretary's trust 
principles were first articulated in a Secretarial Order, Defs.' Ex. 314, and were subsequently 
incorporated into the Departmental Manual at 303 DM 2 (Defs.' Ex. 28), Tr., July 1, 2003, p.m., at
66:25-68:2 (R. Swimmer). 
259. Richard Fitzgerald, whom Plaintiffs offered as an expert witness on trust standards, 
Tr., 
May 8, 2003, p.m., at 23:9, participated in drafting some of the provisions regarding standards as 
set 
forth in the Fiduciary Obligations Compliance Plan. Tr., May 8, 2003, p.m., at 47:4-18. He 
believes 
that, when read in conjunction with the Secretary's trust principles and other Department 
publications, 
the Fiduciary Obligations Compliance Plan allows Interior to fulfill applicable common-law trust 
duties, 
such as the duty of loyalty. Tr., May 12, 2003, a.m., at 8:19-10:17. Mr. Fitzgerald, who has 
been 
employed in the Office of the Special Trustee since December 1996, testified that, through 
Interior's 
trust training program, there is a growing sense among Interior's work force that the Indian 
trust, like 
every trust, is unique to its circumstances but also has some universal guiding principles. Tr., 
May 8, 
2003, p.m., at 65:6-24. However, he also testified that the Secretary should look first to the 
statutory 
responsibilities applicable to the administration of the trust. Tr., May 8, 2003, p.m., at 60:5- 
8. 
260. In addition to describing the IIM trust funds accounting standards required by the 
Court's September 17, 2002 Order, Interior has identified specific statutory and regulatory 
requirements applicable to the broader range of activities that encompass management of the Indian 
trust. As noted above, these standards are set forth in detail in the Comprehensive Trust 
Management 
Plan and the As-Is study. See Comprehensive Trust Management Plan at 22-23, 3-29 3-31 (Table 
3-2), Appendix C (Defs.' Ex. 27); As-Is Trust Business Model Report at Appendix F (Defs.' Ex. 
18); 
Tr., June 25, 2003, p.m., at 52:10-54:10 (R. Swimmer); Tr., June 26, 2003, p.m., at 63:9-25 (R. 
Swimmer); Tr., June 30, 2003, a.m., at 56:16-24, 65:11-21, 70:14-71:5 (R. Swimmer). 
5. Feasibility of Interior's Trust Reform Efforts 
261. Plaintiffs' own expert witness testified that Interior's Comprehensive Trust Management 
Plan is a reasonable plan if it can be implemented. Once it is implemented, as with any plan, 
weak 
points can be identified, and good management will address those weak points and bring about the 
necessary change, Tr., May 8, 2003, p.m., at 41:9-19; 43:20-23 (R. Fitzgerald). 
262. Plaintiffs' expert also testified that Interior's Fiduciary Obligations Compliance Plan 
is a 
reasonable plan to carry out the Department's fiduciary duties if the plan can be implemented. 
Tr., May 
12, 2003, a.m., at 17:5-13 (R. Fitzgerald). 
263. OTFM leaders have a very well developed sense of the responsibilities of a trustee. 
Tr., May 12, 2003, a.m., at 35:8-15 (R. Fitzgerald). 
264. Instead of the TAAMS experience, in which Interior looked for a quick fix and tried to 
conform a new IT system to the existing business processes within different offices and ended up 
"los[ing] control of the program," the Comprehensive Trust Management Plan is based on a careful 
analysis, through the As-Is and To-Be processes, before implementing trust reform. Tr., June 25, 
2003, p.m., at 68:22-71:22 (R. Swimmer). 
265. Interior's plan includes hiring new staff, including trust officers, who will be trained 
to 
carry out trust functions; once hired, "they are not likely to be terminated by a subsequent 
administration." Tr., June 25, 2003, p.m., at 42:7-43:5 (R. Swimmer). 
266. With regard to past unsuccessful trust reform initiatives, completion of HLIP tasks did 
not yield a result that Interior was happy with. Interior chose not to continue down the same 
path of 
quick fixes but instead worked on identifying standard best practices and implementing systems to 
reflect those practices. Tr., June 5, 2003, a.m., at 67:21-73:17 (J. Cason). 267. Interior's ability to complete its trust reform process and do so in a timely fashion 
depends upon Congress's willingness to fund the process. Tr., June 25, 2003, p.m., at 67:15-68:21 
(R. Swimmer), Tr., June 26, 2003, a.m., at 69:5-14 (R. Swimmer). Interior continues to work on 
acquiring the funds necessary and to demonstrate success in the use of already-appropriated funds. 
Tr., 
June 25, 2003, p.m., at 92:18-93:8 (R. Swimmer). The current administration has sought and 
obtained 
substantially increased funding for trust activities: the first Special Trustee had a budget of 
$15-$20 
million; the budget today exceeds $200 million. Tr., June 25, 2003, p.m., at 40:10-41:12 (R. 
Swimmer). 
268. The budget cycle for FY 2005 is currently underway, and Interior hopes to get funding 
for additional trust staff as part of that process; the budget process for FY 2006 will begin 
soon. Tr., 
June 25, 2003, p.m., at 66:19-67:14 (R. Swimmer). 
269. Congressional funding of trust reform is complicated by budgetary constraints, 
increased competition for funds, and the perception that the appropriation of funds for trust 
reform 
deprives Interior of funds to fulfill other Indian-related needs. Tr., June 25, 2003, p.m., at 
84:16-85:25 
(R. Swimmer). 
6. Plaintiffs' Compliance Plan is Deficient 
270. Plaintiffs' Compliance Action Plan Together With Trust Standards ("Plaintiffs' 
Compliance Plan" or Plaintiffs' Plan"): 1) does not explain how it would bring Interior into 
compliance 
with its specific trust fund accounting obligations under the 1994 Act; 2) provides no 
consideration of 
applicable trust standards other than common law trust standards; 3) does not acknowledge, much 
less 
evaluate, the effect of Interior's co-existing statutory obligations on the operation of the IIM 
Trust; 4) 
does not recognize the need for a change in existing statutory authority before implementation; 5) 
does 
not recognize the need for a change in existing appropriations before implementation; 6) makes no 
provision for handling the small dollar accounts without imposition of an administrative fee; 7) 
contains 
unrealistic time frames for implementation; and 8) does not recognize that its implementation 
would 
result in the unauthorized termination of BIA personnel. See Plaintiffs' Plan (Pls.' Ex. 51). 
7. Plaintiffs' Compliance Plan is Not Feasible 
271. Plaintiffs' assert that "[t]he divergent interests of individual Indian trust 
beneficiaries and 
tribal leaders require the complete separation of trust administration . . . within 180 days" of 
the "Trust 
Manager" being appointed. Plaintiffs' Plan at 42 (Pls.' Ex. 51) at 42. Plaintiffs' Plan requires 
"[s]egregate[d] administration of IIM trust records from tribal and other DOI records" and "the 
separation of trust assets from all other tribal and DOI assets." Id. at 42, 44. 
272. Plaintiffs' Plan does not provide for tribal involvement or consultation in the 
operation 
and management of the IIM trust. Indeed, its explicit call for separation of tribal and IIM trust 
functions, id. at 42, 44, would eliminate the current tribal role and involvement in operation of 
the IIM 
trust. 
273. Plaintiffs' Plan would include replacing all trust personnel affected by the current 
litigation with "new and independent trust administration management solely to administer the 
Individual 
Indian Trust;" the new positions, in an unspecified organizational structure and without any 
indication of 
what level these positions would occupy within Interior and the Civil Service, would consist of 
ten titled 
positions, at least 30 new Probate Judges, an "Independent Audit Committee," and unspecified
numbers of supporting staff. Plaintiffs' Plan at 33-35, 38 (Pls.' Ex. 51). 
274. Plaintiffs' Plan contains no cost estimates, and no proposed budget for implementation. 
Tr., May 9, 2003, a.m., at 20:23-22:21, 25:19-21 (P. Homan). 
275. The Plaintiffs also propose actions without regard to whether they overlap partially or 
completely with initiatives already commenced by Interior, including evaluating and potentially 
replacing 
computer systems that support trust operations, Plaintiffs' Plan at 37 (Pls.' Ex. 51); 
promulgating a 
comprehensive records retention policy and addressing records held by third parties to the extent 
necessary to support an accounting, id. at 38, 40, 41-43, 45-46; identifying and locating 
beneficiaries, 
including the so-called "whereabouts unknown" account holders, id. at 38; eliminating the backlog 
of 
probate cases, id. at 38-39; identifying and developing information regarding trust assets to the 
extent 
necessary to conduct an accounting, id. at 39, 40; reviewing the role of and need for new 
cadastral 
surveys to support an accounting, id. at 40; consulting with the Office of the Comptroller of the 
Currency regarding the extent to which its principles would provide useful guidelines regarding 
the 
required accounting, id. at 43; independently auditing trust balances and operations, id. at 43- 
44; 
providing accurate and complete account statements to IIM account holders, id. at 46; and properly 
monitoring and investing IIM funds, id. at 47. Any unnecessary duplication of efforts would only 
result 
in further delay as initiatives are disrupted, personnel are changed, and the learning process 
begun over 
again. 
276. Also, as Plaintiffs' lead expert has stated, "I don't believe a receiver . . . in any 
way, 
shape, or form will ultimately solve the problem[.]" Tr., May 6, 2003, a.m., at 42:10-43:10 (P. 
Homan). 
277. Paul Homan served as the Special Trustee for American Indians from September 1995 
through January 7, 1999. Tr., May 1, 2003, a.m., at 52:13-16 (P. Homan). Mr. Homan's personal 
knowledge as to Interior's trust operations and the data he relied on to provide his opinion is 
anywhere 
from three to six years old. Tr., May 6. 2003, p.m., at 20-22; Tr., May 7, 2003, a.m., at 6:8-7:2 
(P. 
Homan). His information is thus stale and often does not reflect current conditions at Interior. 
278. Mr. Homan has many potential biases and conflicts that call into question his 
neutrality. 
Mr. Homan is a good friend and has also had prior commercial business dealings with Plaintiffs' 
counsel, Dennis Gingold. Tr., May 9, 2003, a.m., at 8:17-12:3 (P. Homan). Mr. Homan had prior 
business contacts with Elouise Cobell, the lead plaintiff, while Mr. Homan was President of Riggs 
Bank 
when Ms. Cobell approached Riggs Bank to explore the option of privatization of management of the 
IIM trust. Tr., May 9, 2003, a.m., at 12:22-15:21 (P. Homan). During Mr. Homan's tenure as 
Special 
Trustee, he attempted to hire Mr. Gingold as his legal counsel. Tr., May 9, 2003, a.m., at 18:20- 
19:11 
(P. Homan). 
279. Mr. Homan lacks sufficient expertise in many of the topics on which he testified. Mr. 
Homan does not possess an accounting degree, Tr., May 1, 2003, a.m., at 28:12-29:2, is not a 
certified public accountant, Tr., May 7, 2003, a.m., at 41: 11-13, 45:9, and is not professionally 
qualified to render an accounting opinion, Tr., May 7, 2003, a.m., at 51:15-18; he is not a 
historian, 
Tr., May 1, 2003, a.m., at 85:22-25; he is not a trust lawyer, Tr., May 5, 2003, a.m., at 75:16- 
17; and 
he is not a statistician, Tr., May 1, a.m., at 84:17-25 (P. Homan). 
D. Treasury Has Been Meeting Its Duties As A Trustee 
280. On July 6, 1999, Treasury filed a stipulation that listed several activities it committed to 
undertake in the future to fulfill its role as a trustee for IIM money. Cobell v. Babbitt, 91 F. 
Supp. 2d at 
34. Treasury has been meeting its duties as a trustee by satisfying each of the July 1999 
stipulations. 
281. On December 21, 1999, the Court held that Treasury committed a single breach of its 
trust responsibilities by destroying IIM trust materials "after their age exceeded six years and 
seven 
months, without regard to the fact that the United States (through its trustee-delegates) has not 
rendered an accounting of plaintiffs' IIM trust money." Cobell v. Babbitt, 91 F. Supp. 2d at 50. 
282. The Court ordered Treasury to file quarterly status reports setting forth and explaining 
the steps that Treasury would take to rectify this breach of trust and to bring itself into 
compliance with 
its duty to retain necessary IIM-related trust documents. Id. at 58-59. 
283. Treasury timely filed quarterly reports on March 1, 2000; June 1, 2000; September 1, 
2000; December 1, 2000; March 1, 2001; June 1, 2001; September 4, 2001; December 3, 2001; 
March 1, 2002; June 3, 2002; August 30, 2002; December 2, 2002; and February 28, 2003. These 
reports describe Treasury's progress toward compliance with this Court's December 21, 1999 Order. 
284. During closing arguments, Plaintiffs' counsel noted Treasury's success at meeting the 
obligations imposed by the Court. "Treasury has distinguished itself. At the outset, Treasury 
fought 
very hard about being a true defendant in this case. They took rational positions, they made the 
best 
arguments they could, they lost, and then they took what this Court ordered to heart. They made 
the 
changes." Tr., July 8, 2003, a.m., at 12:19-24 (D. Gingold). 
1. Stipulations 1, 2, and 3 
285. Treasury satisfied Stipulations 1, 2, and 3 by enhancing the retrievability of check and 
electronic payment records. 
286. In Stipulation 1, Treasury acknowledged that its system did not allow Treasury to 
search for and retrieve IIM checks drawn on Treasury without predicate information (check symbol 
and serial number) from Interior. Cobell v. Babbitt, 91 F. Supp. 2d at 34. 
287. As promised in Stipulations 2 and 3, Treasury developed two new systems to enhance 
the retrievability of check and electronic payment records. These systems are the OTFM Data Entry 
System ("ODES") and the OTFM Activity Tracking System ("OATS"), both of which became 
operational April 21, 2000. ODES and OATS enable Treasury to retrieve, by payee name or other 
unique identifier, information about checks issued to and/or negotiated by IIM beneficiaries from 
and 
after April 2000. In addition, OATS enables Treasury to retrieve information about electronic 
funds 
transfer payments ("EFT") payments issued to IIM beneficiaries, by payee name or other unique 
identifier. Treasury's Statement Regarding the Court's September 17, 2002 Opinion and Order in 
Cobell, et al. v. Norton, et al. ("Treasury's Statement"), at 2 (Jan. 6, 2003). 
2. Stipulations 4 and 5 
288. Treasury satisfied Stipulations 4 and 5 by submitting revised record retention schedules 
to the National Archives and Record Administration ("NARA"). 
289. In Stipulations 4 and 5, Treasury agreed to consult with Interior to identify all IIMrelated 
records maintained or created by Treasury, to evaluate those records in terms of utility 
for 
accounting purposes, and to submit revised retention schedules to the NARA for approval. Cobell 
v. 
Babbitt, 91 F. Supp. 2d at 34. Treasury met each of these commitments. Treasury's Statement at 2- 
3; 
Tr., May 12, 2003, p.m., at 30:15-21 (R. Fitzgerald). 
290. On November 3, 2000, NARA published notice of the proposed schedules for 
comment in the Federal Register. 65 Fed. Reg. 66,264, 66,266 (Nov. 3, 2000). 
291. By letter dated February 20, 2003, NARA provided a response to the proposed 
revised retention schedules that Treasury submitted to NARA at the end of September 2000. NARA 
stated that its "appraisers agree that the dispositions and retention periods stated in the 
proposed 
schedules meet the business needs of Treasury and provide adequate retention periods to protect the 
legal rights of the American people and the U.S. government, as well as document government 
accountability." NARA stated that it would hold in abeyance the approved schedules "pending 
further 
developments in the Cobell case." Thirteenth Quarterly Report on Actions Taken by the Department 
of 
the Treasury to Retain IIM-Related Documents Necessary for an Accounting at 2 (Feb. 28, 2003). 
3. Stipulation 6 And The Document Retention Requirements Of The 
Court's August 12, 1999 Order. 
292. Treasury has substantially satisfied Stipulation 6 and the document retention 
requirements of the Court's August 12, 1999 Order. 
293. On August 12, 1999, the Court ordered Treasury to retain certain IIM-related 
documents. This order incorporated Treasury's Stipulation 6. 
294. Treasury stresses the importance of document retention by issuing regular reminders to 
its employees and agents of the obligations imposed in the August 12, 1999 Order. Copies of these 
reminders are filed with the Court as part of the quarterly reports. See, e.g., First Quarterly 
Report on 
Actions Taken by the Department of the Treasury to Retain IIM-Related Documents Necessary for an 
Accounting, at Annexes 1-21 (Mar. 1, 2000). 
295. In addition to regular reminders, Treasury has put in place a strong system for keeping 
track of and retaining IIM documents. Tr., May 13, 2003, p.m., 51:1-4 (D. Hammond). As part of 
this system, Treasury incorporates "within every senior manager's performance standards that 
touches 
on IIM related activities a trust-related litigation performance objective for dealing with the 
retention of 
documentation." Tr., May 13, 2003, p.m., at 51:25, 52:1-4 (D. Hammond). 
296. Treasury's system for retaining IIM documents includes the Federal Reserve banks. In 
addition to periodic reminders, Treasury has "conducted a number of training sessions and 
awareness 
sessions, both with counsel within the Federal Reserve as well as with operational personnel. . . 
. And 
in addition we put in place a firm approval process such that if a Federal Reserve wanted to 
destroy a 
document that it had to come up through it had to be described, and it had to flow up through an 
approval process in order prior to its destruction, and be specifically authorized by a central 
person at 
the Bureau of Public Debt at the time." Tr., May 13, 2003, p.m., at 37:7-17, 21 (D. Hammond). 
297. "[T]he Board of Governors of the Federal Reserve System, which has the oversight 
responsibility for the banks, and branches, and their operations, have taken [document retention] 
incredibly seriously, and have participated in making sure that they have affirmative compliance." 
Tr., 
May 13, 2003, p.m., at 48:24-25, 49:1-3 (D. Hammond). The Court observed, "When the Federal 
Reserve Board of Governors gets into an issue like that and says, let's make sure that we are 
compliant, that is government at its best." Tr., May 13, 2003, p.m., at 49:9-11 (D. Hammond). 
298. Although Treasury has not achieved perfection by retaining every document covered by 
the August 12, 1999 Order, Treasury has strived "to build a system that effectively not only 
provides 
for the retention but also for the reporting and identification of [errors] as soon as we are 
aware of 
them." Tr., May 13, 2003, p.m., 51:8-11 (D. Hammond). The Court observed, "Obviously plaintiffs 
in a case like this always want perfection. But I want reasonable action by the government, and 
that is 
the kind of thing that I hope you are striving for as well. You cannot avoid all human errors, I 
know." 
Tr., May 13, 2003, p.m., 50:20-24. (Judge Lamberth). 
299. When a document retention error has occurred, Treasury has held people accountable 
and has "taken affirmative steps each and every time to deal with either the personnel related 
issues or 
to deal with the structural or management issues of any of our events." Tr., May 13, 2003, p.m., 
at 
50:9-11, 15-18 (D. Hammond).
4. Stipulation 7 
300. Treasury satisfied Stipulation 7 by enhancing IIM investment earnings. 
301. In Stipulation 7, Treasury agreed to allow Interior's Office of Trust Funds Management 
("OTFM") to make "as of" investments for deposits whose amounts are not immediately known, 
resulting in additional interest being earned on trust funds that OTFM administers. Cobell v. 
Babbitt, 
91 F. Supp. 2d at 34. Treasury satisfied this stipulation in July 1999. Treasury's Statement at 
4. 
302. To further assist OTFM in maximizing earnings on the funds, Treasury has, as of 
November 16, 2001, waived the $1,000 minimum increment investment requirement for IIM 
investments, allowing OTFM to invest increments as small as one penny. Treasury's Statement at 4. 
5. Stipulation 8 
303. Treasury satisfied Stipulation 8 by completing a study of IIM check negotiation 
practices. 
304. In Stipulation 8, Treasury agreed to study IIM check negotiation practices to determine 
the average time between issuance and negotiation of IIM checks. Stipulation of the Department of 
the 
Treasury, at 3 (July 6, 1999). Treasury completed this study in May 2000, provided a copy to 
Interior, 
and filed a copy with the Court as part of the Second Quarterly Report on Actions Taken by the 
Department of the Treasury to Retain IIM-Related Documents Necessary for an Accounting, at 
Attachment K. 
E. Plaintiffs Knew Or Should Have Known Of Their Claims Prior To October 1, 
1984 
1. Each Plaintiff Knew Or Should Have Known 
a. Elouise Cobell (filed under seal) 
b. James LaRose (filed under seal) 
c. Thomas Maulson (filed under seal) 
d. Penny Cleghorn (Mildred Cleghorn) (filed under seal) 
2. Information Demonstrating That Plaintiffs Knew Or Should Have 
Known 
a. Public Reports Cited and Relied Upon By Plaintiffs' January 6, 
2003 Plan 
305. Papers filed and submitted by Plaintiffs in this case relied upon a plethora of 
Government reports and documents that, according to Plaintiffs, demonstrate that the Government 
violated its IIM obligations that are at issue in this case. Many of those reports were issued 
publicly 
prior to October 1, 1984, thus putting the public including Plaintiff class members on notice 
of their 
claims. 
306. For, example, on January 6, 2003, Plaintiffs filed Plaintiffs' Plan for Determining 
Accurate Balances in the Individual Indian Trust (hereafter, "Plaintiffs' Revenue Model"), Defs.' 
Ex. 
50, which cited and relied upon public reports referenced below, which were published as much as 
eighty years before Plaintiffs filed suit. 
The 1915 Report 
307. In 1915, the Joint Commission of the Congress of the United States to Investigate 
Indian Affairs (63rd Cong., 3d Sess.) received a report relative to "Business and Accounting 
Methods 
Employed in the Administration of the Office of Indian Affairs" (hereafter, the "1915 Report to 
Congress"). Defs.' Ex. 255. Plaintiffs' Revenue Model, at 23 (Defs.' Ex. 50) quotes the 
following 
language (among other language) from the 1915 Report: "It is impossible with present methods for 
the 
officials of the Indian Office to keep in personal touch with the many varied transactions and the
constantly changing status of property and funds." (emphasis omitted). 
The 1929 Comptroller General Report to the Senate 
308. Plaintiffs' Revenue Model, at 24 & n.49 (Defs.' Ex. 50), cites a February 25, 1929 
Report to the President of the Senate, entitled "Report of the Amount of Funds of the Indians, 
the 
Investment Thereof, the Rate of Interest Thereon Together With Comments Pertinent to the Uses 
Made of Such Funds" (hereafter, the "1929 Comptroller General Report to the Senate"). Defs.' Ex. 
256. Plaintiffs' Revenue Model, at 24 (Defs.' Ex. 50), characterizes the 1929 Comptroller 
General 
Report to the Senate this way: "A Report to the President of the Senate States Revenues and 
Expenditures Could Not be Examined (1929)." The 1929 Comptroller General Report to the Senate, 
Defs.' Ex. 256, states, at 115: "While property accountability is provided for in the accounting 
system, 
it was observed that at many of the [BIA] agencies the records are not properly maintained, 
entries not 
being current and otherwise incomplete." 
The Meriam Report - 1928 
309. Plaintiffs' Revenue Model, at 4-5 & n.5 (Defs.' Ex. 50), cites Lewis Meriam, The 
Problem of Indian Administration (The Johns Hopkins Press, Baltimore, Maryland, 1928) (the "Miriam 
Report"), at 438-39 (marked for identification as Defs.' Ex. 257). Plaintiffs' Revenue Model, 
at 4 
(Defs.' Ex. 50), states that the Miriam Report "was published in 1928 and is one of the earliest 
public 
reports that found that Indian trust data is wholly unreliable and utterly useless as an accurate 
measurement of anything, except to confirm the manifest neglect and malfeasance inherent in Indian 
trust 
management . . . ." (emphasis added).
Comptroller General 1982 Report to Congress 
310. Plaintiffs' Revenue Model, at 24 n.50 (Defs.' Ex. 50), cites a report submitted to 
Congress in 1982 by the Comptroller General, entitled, "Major Improvements Needed in the Bureau of 
Indian Affairs' Accounting System" (hereafter, the "Comptroller General 1982 Report to Congress"), 
Defs.' Ex. 258. Plaintiffs' Revenue Model, at 24 (Defs.' Ex. 50), characterizes the Comptroller 
General 
1982 Report to Congress as follows: "The GAO Reports the BIA Has Lost Accountability for Trust 
Funds, the Data is Unreliable, BIA Has Lost Control of Receipts and Disbursements, and BIA Has 
Not Discharged Its Fiduciary Duties (1982)." 
311. The Comptroller General 1982 Report to Congress, Defs.' Ex. 258, states: 
Operating deficiencies preclude the proper discharge of trustee responsibilities (at 13). 
The BIA's "automated accounting and finance system does not provide for accountability for 
the more than $900 million of Indian trust funds managed by the Bureau. The system lacks the 
internal controls necessary to assure that receipts are properly accounted for and 
disbursements 
made only in proper amounts to entitled persons (id.). 
The local offices we visited did not maintain adequate controls over cash receipts (id. at 
14). 
The local offices also did not maintain adequate controls over cash disbursements and related 
blank Government checks . . . . There was no assurance that disbursements were made in 
proper amounts to entitled persons and that funds had not been misappropriated (id. at 15). 
b. Public Reports Cited and Relied Upon By Plaintiffs' Answers to 
Interrogatories (filed under seal) 
c. Other Pre-1984 Comptroller General Reports That Asserted 
IIM Trust Violations 
312. Other public Government reports also discussed the Government's alleged failure to 
properly handle IIM accounts long before October 1, 1984. 
November 1955 Audit by Comptroller General Regarding 
BIA's Administration of Individual Indian Moneys (Defs.' Exs. 84 and 275). 
313. In November 1955, the Comptroller General issued an audit report, Defs.' Exs. 84 and 
275, which states: 
Disbursements of individual Indian moneys are not always supported adequately (at 5). Our 
audit disclosed certain deficiencies in accounting for IIM, such as overdrafts in individual 
Indian 
money accounts, subsidiary records not in agreement with general ledger control accounts, and 
the total of the cash balances in the Bureau's general ledger accounts not in agreement with 
the 
cash balance reported by the Treasury at June 30, 1955 (id. at 6). 
December 14, 1956 Letter With Report from the Comptroller General (Defs.' Ex. 276) 
314. On or about December 14, 1956, the Comptroller General issued a letter and report to 
the Committee on Appropriations, United States House of Representatives, setting forth findings of 
the 
General Accounting Office with regard to various civil departments and agencies of the Government. 
Defs.' Ex. 276. With regard to the Bureau of Indian Affairs, the report states, at 28, in part: 
Poor accounting 
In our report on audit of the Bureau of Indian Affairs, submitted to the Congress on 
March 9, 1955, and in reports to the Commissioner of Indian Affairs, we pointed out a 
number of deficiencies in the administration of individual Indian moneys and 
recommended that the Bureau take action to insure that regulations set forth in the 
Indian Affairs Manual be followed closely. . . . Our audit in 1955 disclosed that some 
progress had been made in correcting the deficiencies, but serious weaknesses still 
existed in varying degrees at the locations visited. These included disbursements of 
individual Indian moneys without adequate support, deficiencies in accounting for cash 
and bonds and in the computation and distribution of interest income, and other
weaknesses in internal procedures. 
Defs.' Ex. 276, at 28. 
March 1966 Report 
315. On March 11, 1966, the Comptroller General submitted to the Congress a letter and 
report (the "March 1966 Report") entitled, "Need for Improvements In the Management of Moneys 
Held in Trust for Indians." Defs.' Ex. 277. The letter states, at 1, "[h]erewith is our report 
on the need 
for improvements in the management of moneys held in trust for Indians by the Bureau of Indian 
Affairs, 
Department of the Interior." The March 1966 Report states, at 12, "Trust assets not recorded[.] 
The 
Aberdeen and Billings [Indian Service Special Disbursing Agents] did not record all trust funds 
for 
which they were accountable." 
d. Congressional Testimony 
1981 Hearings Before the Select Committee on Indian Affairs 
316. In a series of congressional committee hearings in 1981, witnesses publicly revealed 
allegations that the Government was not properly handling IIM accounts. The Select Committee on 
Indian Affairs, United States Senate (97th Cong. 1st Sess.) held a series of three hearings on 
"Federal 
Supervision of Oil and Gas Leases on Indian Lands." The first two hearings were on February 27, 
1981 (in Billings, Montana) and April 6, 1981 (in Washington, D.C.). Defs.' Exs. 278 and 279. 
At 
the February 27, 1981 hearing in Billings, Montana, one of the witnesses, James Henry (Chairman of 
the Turtle Mountain Band of Chippewa) offered a statement that included the following, regarding 
oil 
and gas producing wells on allotted land of members of his tribe: "Seven years ago, I came out to 
meet 
with [BIA] Fort Belknap and Fort Peck agencies, and at that time, they in fact, they admitted 
that 
they had failed in their trust responsibility to properly administer those lands . . . ." Defs.' 
Ex. 278, at 
26. 
317. The third hearing occurred on June 1, 1981 (in Albuquerque, New Mexico). Defs.' Ex. 
280. The June 1981 Hearing included: 
A statement by Senator John Melcher that a prior, February 27, 1981 hearing 
"revealed that the [U.S. Geological Survey's] gross inability to account for the production 
of oil 
on Federal and Indian leases over a period of years has been very pervasive and continuous." 
See June 1981 Hearing Excerpts, at 1 (Defs.' Ex. 280). 
The April 13, 1979 report from the Comptroller General entitled, "Oil and Gas Royalty 
Collections-Serious Financial Management Problems Need Congressional Attention," 
discussed supra. Defs.' Ex. 268, at 58 et seq. 
A statement of Richard Tecube, Vice President, Jicarilla Apache Tribe, who stated: 
"While the hearing is concentrating primarily on oil theft, we feel that it is an indicator 
of a much 
larger problem of leasing on Federal lands; many problems are involved. . . . One is leasing; 
second is accounting; the third problem is recordkeeping . . . ." 
Id. at 141. 
February 21, 1984 Congressional Testimony by Mr. Old Person 
318. On February 21, 1984, Plaintiff Earl Old Person ("Mr. Old Person") provided 
testimony in hearings before a subcommittee of the Committee on Appropriations, House of 
Representatives (98th Cong., 2d Sess.) (Defs.' Ex. 281), in which he testified, at 331: 
We [the Blackfeet Tribe] do have people that own individual lands. We have we 
look to these lands mainly for income purposes. Whether it is individually or tribal.
A lot of our individual landowners receive very little income from these lands because 
of the way it is managed. I think it was concurred by the committee that came out 
investigating 
and kind of going over the various programs on Indian reservations. 
They found that in one of the areas, our land base was not adequately being cared for. 
I just want to read one of their findings. It says, "Our review of Reservation land records 
maintained by the BIA and Tribe disclosed that land records are duplicative, inaccurate, and 
incomplete. Basically, we concluded that BIA's commitment to improve the Tribe's land 
records and to eliminate costly duplications has been insufficient and disregards the 
importance 
of this trust responsibility."
e. Pre-1984 Media and Other Popular Sources Of Allegations of 
IIM Trust Violations 
319. Had the Court admitted into evidence the media articles offered by Defendants, those 
articles would have shown that allegations of Government mishandling of IIM accounts were widely 
publicized long before 1984. Although they were not admitted into evidence, Defendants describe 
them in order to further demonstrate for the record the significance and purpose of these 
exhibits. In 
1928, the journal American Indian Life published an article, Now It Can Be Told (marked for 
identification as Defs.' Ex. 282) which stated at 1, "[t]he Comptroller General, on request of 
the Senate 
Committee and under authority of both Houses of Congress, has begun a probe of the Indian Bureau's 
handling of Indian trust moneys. More will be told of these investigations below." After 
referring to a 
dispute over the coverage of "tribal reimbursable debts," in a report by the Institute for 
Government 
Research, the article, at 16, continues: 
Almost as little will the seeker learn about the more important, and more scandalous, 
handling 
of individual Indian trust moneys by the Indian Bureau. $25,000,000 and upward of individual 
Indian trust income is handled each year by the Bureau, under no regulation of law, with no 
review by the courts and no accounting to any authority whomsoever. 
320. In December, 1978, the American Indian Historical Society published volume 6, 
number 11 of Wassaja A National Newspaper of Indian America, which included an article, 
Suit Charges BIA Misappropriates Indian Funds (marked for identification as Defs.' Ex. 283). The 
article states in pertinent part, at 1: 
Oklahoma City, Oklahoma. A lawsuit charging the Bureau of Indian Affairs has 
misappropriated Indian funds has been filed here in U.S. District Court. 
The class action suit claims that the BIA office in Anadarko, Ok. "improperly handles 
money held in trust for Indians." 
* * * 
The plaintiffs in the suit are three Oklahoma Indians who have had money held in trust 
by the BIA. They seek a full accounting of all monies held in trust on behalf of Indians and 
payment to the Indians of all interest due from the investments. 
Amos E. Black III, Anadarko attorney, is one of four lawyers representing the Indians. 
"The suit stems from the practice of the BIA of holding oil and gas and grazing land lease 
bonuses paid to restricted Indians while the lease agreements are finalized, Black stated. 
"The BIA acts as a trustee for many individual Indians in agreements of this type . . . 
* * * 
Further, investments are not made through standard procedures, Black 
contended, guaranteeing the highest interest return. "This is an abuse of the BIA role 
as trustee," Black said. 
The attorneys are calling for a thorough investigation of the use of funds held by the 
BIA 
for Indians, and an explanation of how the money is invested, where it is invested, and how 
much interest has been earned over the past years. 
(emphasis in original). 
321. On November 20, 1983, the Denver Post published its Empire Magazine, which 
included an article by John Aloysius Farrell, The New Indian Wars - Empty Promises, Misplaced 
Trust (marked for identification as Defs.' Ex. 284). Among other things, the article, at 17, 
quotes an 
attorney for the Native American Rights Fund as saying, "The BIA breached its trust responsibility 
in 
approving [] commercially unreasonable agreements." The article also states, at 22, as follows 
regarding oil leases on Indian property: "Once negotiations are complete, there are serious flaws 
in the 
federal government's efforts to ensure that oil is not stolen from Indian lands, and that royalties are paid 
promptly and in full as The [Denver] Post detailed in an extensive series of investigative 
reports 
throughout 1981." 
f. Pre-1984 Litigation Asserting Trust Violations 
322. A number of pre-1984 published opinions in prominent federal lawsuits further 
disclosed to the public instances in which the Government was said to have failed to carry out IIM 
duties properly. For example, on or about April 16, 1971, the Court of Claims issued its decision 
in 
Capoeman v. United States, 440 F.2d 1002 (Ct. Cl. 1971), which indicated that an Indian holding an 
interest in allotted land asserted that the Government as trustee improperly deducted charges from 
the 
proceeds of timber sales. Id. 
323. On or about April 15, 1980, the Supreme Court issued its decision in United States v. 
Mitchell, 445 U.S. 535, 536-37 (1980), which recited that individual Indian allottees sued the 
Government, alleging mismanagement and breach of its fiduciary duty regarding forests and timber 
sales 
on the allotted land. 
324. On or about October 21, 1981, the Court of Claims issued its decision in Mitchell v. 
United States, 664 F.2d 265 (Ct. Cl. 1981), which was affirmed by the Supreme Court in a decision 
issued on or about June 27, 1983, 463 U.S. 206 (1983), and each of those decisions recited the 
allegations by individual allottees that the Government had breached its fiduciary obligations in 
connection with individual Indian allotted land. 
325. For the foregoing reasons, prior to October 1, 1984, the Plaintiffs and other members 
of the class knew or should have known of their claims for an accounting covering any period on or 
prior to that date. 
F. Deposition Testimony Proffered By Plaintiffs Is Not Relevant To The Phase 
1.5 Proceeding. 
326. At the conclusion of the trial, Plaintiffs sought to introduce deposition testimony 
elicited 
from several Interior officials, including Former Acting (now Deputy) Special Trustee for American 
Indians Donna Erwin, BIA Chief Information Officer Dominic Nessi, and one contractor, Jeremy Katz, 
a computer consultant. All of these witnesses, except Mr. Katz, are employees of the Department. 
327. Defendants objected to admission of Mr. Katz's testimony on the ground that Plaintiffs 
made no showing that Mr. Katz was unavailable to testify at trial, and as an independent 
contractor, his 
testimony cannot qualify as a party admission of the Department. Even if admissible, his 
testimony 
would be of little relevance to the issues the Court must address for this Phase 1.5 trial. 
328. The deposition testimony that Plaintiffs offer from Dom Nessi and Mr. Katz is not 
entitled to any weight for purposes of this trial. All of the testimony concerns computer 
security issues 
and was given two years ago, in 2001, before Special Master Balaran as part of his initial 
assessment 
of computer security. See generally Jeremy Katz Depo. Tr. (June 11, 2001) (Pls.' Ex. 314); 
Dominic 
Nessi Depo. Tr. (June 14, 2001) (Pls.' Ex. 321); Dominic Nessi Depo. Tr. (Aug. 8, 2001) (Pls.' 
Ex. 
322). At most, the testimony outlines weaknesses in computer systems security that existed two 
years 
ago. See, e.g., Dominic Nessi Depo. Tr., at 97:23-98:19 (Aug. 8, 2001) (Pls.' Ex. 322) 
(discussing 
TAAMS system security). Plaintiffs have made no showing that this testimony accurately depicts 
the 
current state of affairs. 
329. To the extent Plaintiffs rely on the existence of computer security weaknesses in the 
past as proof that IIM records are corrupt, Plaintiffs failed to carry their burden. Plaintiffs 
did not 
present any witness or adduce any evidence at trial to show that data corruption had, in fact, 
actually
occurred or that it had occurred to such a degree as to prevent an historical accounting 
altogether. 
330. The proffered deposition testimony of Donna Erwin is even less relevant to the trial 
issues. Plaintiffs have proffered large excerpts of Ms. Erwin's testimony from three different 
days of 
deposition in December 2002 and February 2003. See generally Donna Erwin Depo. Tr. 
(Dec. 20, 2002) (Pls.' Ex. 315); Donna Erwin Depo. Tr. (Feb. 12, 2003) (Pls.' Ex. 316); Donna 
Erwin 
Depo. Tr. (Feb. 13, 2003) (Pls.' Ex. 317). Virtually all testimony proffered from her February 
depositions concerns events surrounding the scheduling of her December 2002 deposition and has no 
bearing whatsoever on any trial issue. See, e.g., Donna Erwin Depo. Tr., at 424:4-20 (Feb. 12, 
2003) 
(Pls.' Ex. 316) (concerning discussions with Justice counsel); Donna Erwin Depo. Tr., at 699:7-10 
(Feb. 13, 2003) (Pls.' Ex. 317) (question by SMM Kieffer about who prepared Ms. Erwin for her 
December deposition). 
331. When the Court ordered further examination of Ms. Erwin in February, it was based 
upon the underlying consideration that the "credibility of a key witness" would be relevant at 
trial. 
Memorandum and Order of Feb. 5, 2003 at 14. In the intervening months, however, Ross Swimmer 
was appointed, confirmed, and testified at trial as the new, permanent Special Trustee. Ms. Erwin 
was 
not called as a witness at trial, so the issue of her credibility is academic at best. 
332. Although Plaintiffs have offered still other deposition testimony of Ms. Erwin from her 
December 20, 2002 examination, her substantive testimony from that period adds little to the 
analysis 
here. This trial concerns the plans put forward by Interior on January 6, 2003; Ms. Erwin's 
December 
testimony preceded those plans, however, and so is temporally inadequate. 
II. PROPOSED CONCLUSIONS OF LAW 
A. This Court's Authority Is Constrained By Established Principles Governing 
Judicial Review Of Agency Action And The Separation Of Powers Concerns. 
1. This Court's authority to review Interior's Historical Accounting Plan and Fiduciary 
Obligations Compliance Plan is constrained by well-established principles governing judicial 
review of 
agency action and by separation of powers concerns that underlie these principles. 
2. In its 1999 decision, this Court declared that Defendants' accounting duties under the 
1994 Act were judicially enforceable and that, as a result of failures occurring over a century, 
agency 
action had been unlawfully delayed. The Court retained jurisdiction for five years, and required 
that 
Defendants: (1) file quarterly status reports; (2) file a revised High Level Implementation Plan 
for 
coming into compliance with its statutory duties; and (3) provide additional information as 
required by 
the court or requested by Plaintiffs. Cobell v. Babbitt, 91 F. Supp. 2d at 59. 
3. In affirming this Court's 1999 declaratory judgment, which it believed provided 
"relatively modest" relief, Cobell v. Norton, 240 F.3d 1081, 1109 (D.C. Cir. 2001), the Court of 
Appeals did not sanction a radical departure from settled principles of judicial review, nor did 
it 
authorize a judicial takeover of trust fund management. To the contrary, the Court of Appeals 
emphasized final agency action will occur and thus may be reviewed by this Court when the 
accountings for IIM account holders are completed. Id. at 1110 ("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."). Thus, 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. 
4. The Court of Appeals also made clear in its 2001 opinion that the judicially enforceable
duty at issue is not "to take the discrete individual steps that would facilitate an accounting," 
but the 
provision of the accounting itself. Cobell v. Norton, 240 F.3d at 1106. While failure to take 
various 
subsidiary actions might be evidence of the failure to perform this duty, the Court of Appeals 
determined that they were not themselves enforceable obligations, and required this Court to amend 
its 
opinion accordingly. Id. at 1105-06 (stating that "defendants should be afforded sufficient 
discretion in 
determining the precise route they take"). 
5. In remanding this case for further proceedings, the Court of Appeals emphasized that it 
"expect[ed] the district court to be mindful of the limits of its jurisdiction." 240 F.3d at 
1110. The 
Court observed: 
It remains to be seen 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, 
and the detection of such steps would fit within the court's jurisdiction 
to monitor the Department's remedying of the delay; beyond that, 
supervision of the Department's conduct in preparing an accounting 
may well be beyond the district court's jurisdiction. 
Id. 
6. These admonitions reflect settled law. Although courts have power to review agency 
action (or inaction) and to declare it unlawful or inadequate pursuant to the standards 
articulated in the 
Administrative Procedure Act, "that authority is not power to exercise an essentially 
administrative 
function." Federal Power Comm'n v. Idaho Power Co., 344 U.S. 17, 21 (1952). The "guiding 
principle . . . is that the function of the reviewing court ends when an error of law is laid 
bare." Id. at 
20. 
7. Thus, after declaring agency action unlawful (or unreasonably delayed), courts may not 
seek to control the processes by which an agency fulfills its Congressionally-mandated functions 
on 
remand. See United States v. Saskatchewan Minerals, 385 U.S. 94, 95 (1966) (per curiam) 
(invalidating district court order that precluded ICC from reopening evidence on remand). These 
limitations reflect the respective allocation of powers to the executive and judicial branches. 
8. In accordance with these principles, the Court of Appeals recently vacated the 
appointment of Joseph Kieffer as Special Master-Monitor, stating that such judicial intrusion into 
the 
internal affairs of an Executive Branch agency "simply is not permissible under our adversarial 
system of 
justice and our constitutional system of separated powers." Cobell v. Norton, No. 02-5374, 2003 
WL 
21673009, at *12 (D.C. Cir. July 18, 2003). 
9. A court cannot insert itself into the agency's decision-making process by imposing 
additional procedural much less, substantive requirements on agencies beyond those mandated by 
statute. As the Supreme Court stressed in Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 
435 U.S. 519 (1978), the judiciary may not dictate to agencies the methods and procedures of 
needed 
inquiries on remand because "[s]uch a procedure clearly runs the risk of 'propel[ling] the court 
into the 
domain which Congress has set aside exclusively for the administrative agency.'" Id. at 545 
(quoting 
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). These principles apply even where an agency has 
unquestionably delayed in taking appropriate action. See In re Barr Laboratories, Inc., 930 F.2d 
72, 
74 (D.C. Cir. 1991). 
10. Likewise, even in exceptional cases in which an agency has flagrantly disregarded a 
congressionally-mandated deadline for rulemaking, the appropriate judicial role is to retain jurisdiction 
and require periodic progress reports until the agency has completed the required action. See, 
e.g., In 
re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 556 (D.C. Cir. 1999) (retaining 
jurisdiction and requiring semi-annual progress reports from the Mine Safety and Health 
Administration 
until it issued final regulations); see also Global Van Lines, Inc. v. ICC, 804 F.2d 1293, 1305 
n.95 
(D.C. Cir. 1986) (recognizing agency "discretion to determine in the first instance" how to bring 
itself 
into compliance); Telecommunications Research and Action Ctr. v. FCC, 750 F.2d 70, 81 (D.C. Cir. 
1984) (retaining jurisdiction pending FCC's resolution of underlying issues). 
11. These principles harmonize with the rule that judicial review under the APA is limited 
to 
the administrative record. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) 
("The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. [ ] 
706, to the agency decision based on the record the agency presents to the reviewing court."). 
12. Thus, courts generally may not conduct de novo proceedings to test the legitimacy of 
agency action after the fact, much less determine the initial course of agency action. Whether or 
not 
Defendants' fiduciary obligations elevate the level of scrutiny applied to agency action after it 
is 
completed, they do not authorize judicial intervention in the initial process by which a 
coordinate branch 
of the government decides on a plan of action and executes that action. See Lincoln v. Vigil, 508 
U.S. 
182, 195 (1993). 
13. Accordingly, the Secretary of the Interior may not be reduced to the role of making 
proposals to the Court to be evaluated along with plans from Plaintiffs. Nor is it permissible 
for the 
Court to dictate how Interior is to perform the historical accounting, much less how Interior is 
to 
manage the entire trust fund system a program with hundreds of employees and a budget in the 
hundreds of millions of dollars. It is the Secretary who must work with Congress to establish the 
funding for trust reform, and who must calibrate the utility of various options and the 
availability of 
resources. 
14. A court which is not politically accountable for its actions cannot properly assume 
the Secretary's role. That is the teaching of decisions establishing the limits on judicial 
control over the 
actions of coordinate branches of government. See Lewis v. Casey, 518 U.S. 343, 349 (1996) ("[I]t 
is not the role of courts, but that of the political branches, to shape the institutions of 
government in such 
fashion as to comply with the laws and the Constitution."); Missouri v. Jenkins, 515 U.S. 70, 132 
(1995) (Thomas, J., concurring) ("The separation of powers imposes additional restraints on the 
judiciary's exercise of its remedial powers . . . . There simply are certain things that courts, 
in order to 
remain courts, cannot and should not do."); Barr Laboratories, 930 F.2d at 74 (recognizing that 
judicial 
review is informed by "respect for the autonomy and comparative institutional advantage of the 
executive branch"). 
15. In light of these principles, and inasmuch as the judicially enforceable duty at issue 
is the 
production of account statements to IIM account holders, judicial review prior to final agency 
action 
must be limited to, at most, determining whether Interior's plans are "so defective that they 
would 
necessarily delay rather than accelerate the ultimate provision of an adequate accounting." 
Cobell v. 
Norton, 240 F.3d at 1110. 
16. In making such a determination, the Court must afford deference to the choices made
by Interior in its plans. Congress is the settlor of the IIM trust, and Interior, as the trusteedelegate, 
must comply with the settlor's directions embedded in the numerous statutes that touch upon the 
IIM 
trust. 
17. To the extent Congress's directions are ambiguous or might cause conflicts, Interior's 
interpretations and efforts to harmonize competing interests should be accorded the usual 
deference 
given to a trustee in administering its trust responsibilities. See Tr., June 3, 2003, p.m., at 
74:18-76:18, 
78:19-79:1 (J. Langbein). This deference is particularly important in circumstances where 
Interior, as 
trustee, must make decisions about how to allocate scarce resources to comply with its various 
responsibilities. See, e.g., Tr., June 3, 2003, a.m., at 33:12-34:19, 39:9-18, 67:20-68:8 (J. 
Langbein). 
18. In addition, to the extent that any of the applicable statutes are ambiguous, Interior's 
interpretations of the statutes entrusted to its administration would ordinarily be given due 
deference 
under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). 
19. In Cobell v. Norton, 240 F.3d at 1101, the D.C. Circuit indicated that "Chevron 
deference is not applicable in this case," basing its "departure from the Chevron norm," id., on 
the 
canon of statutory construction that requires that "statutes are to be construed liberally in 
favor of the 
Indians, with ambiguous provisions interpreted to their benefit." Id. (quoting Montana v. 
Blackfeet 
Tribe of Indians, 471 U.S. 759, 766 (1985)). But the D.C. Circuit's decision antedates Chickasaw 
Nation v. United States, 534 U.S. 84 (2001), in which the Supreme Court found that the canons of 
statutory construction are not mandatory rules, but merely guides that can sometimes come into 
conflict 
with each other. Id. at 94. Thus the canon requiring statutes to be construed in favor of 
Indians may 
be offset by other statutory construction guides, such as the canon which cautions against 
interpreting 
tax exemptions into statutes that do not clearly express such exemptions. Id. at 95. 
20. Interior's Historical Accounting Plan sets forth a methodology that will enable Interior 
to comply fully with its obligation to conduct an historical accounting of IIM funds, and in no 
sense does 
it describe or contemplate steps that would delay rather than accelerate provision of the required 
accounting. See Section II.C., infra. But even if the Court were to determine that Interior's 
Plan was 
so defective that it would necessarily delay rather than accelerate the ultimate provision of an 
adequate 
accounting, the Court could not enter a "structural injunction" or otherwise dictate the manner in 
which 
the accounting is to be performed; rather, in accordance with the principles set forth above, the 
Court 
would have to remand the matter back to the agency to permit it to bring itself into compliance 
with its 
obligations. Courts may not exceed constitutional 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. 
21. As the judicially enforceable duty at issue is not "to take the discrete individual 
steps 
that would facilitate an accounting," but the provision of the accounting itself, Cobell v. 
Norton, 240 
F.3d at 1106, this Court's authority does not extend to oversight and direction of Interior's 
performance of all fiduciary obligations. This is not an "institutional reform" case, and 
judicial intrusion
into the internal affairs of an Executive Branch agency "simply is not permissible under our 
adversarial 
system of justice and our constitutional system of separated powers." Cobell v. Norton, 2003 WL 
21673009, at *12. 
22. As the Court is not empowered to oversee the details of the government's management 
of the Indian trust fund program, judicial review of Interior's Fiduciary Obligations Compliance 
Plan 
must be limited to, at most, the detection of "steps so defective that they would necessarily 
delay rather 
than accelerate the ultimate provision of an adequate accounting." Cobell v. Norton, 240 F.3d at 
1110. 
23. Because it is the Secretary of the Interior, rather than the Court or the Plaintiffs, 
who 
must determine the manner in which the historical accounting is to be performed and the IIM trust 
is to 
be managed, the plans submitted by Plaintiffs on January 6, 2003 may not be considered or adopted 
by 
the Court. 
B. Plaintiffs Must Establish That Interior's Plans Describe Steps So Defective 
That They Would Necessarily Delay Rather Than Accelerate The Ultimate 
Provision Of An Adequate Accounting. 
24. As ordered by the Court on September 17, 2002, Interior Defendants were required to 
produce "a plan for conducting a historical accounting of the IIM trust accounts" and "a plan for 
bringing themselves into compliance with the fiduciary obligations that they owe to the IIM 
beneficiaries." Cobell v. Norton, 226 F. Supp. 2d 1, 162 (D.D.C. 2002). Interior Defendants 
complied with this direction on January 6, 2003, when they filed with the Court, and served upon 
Plaintiffs, (1) their Historical Accounting Plan for Individual Indian Money Accounts, and (2) 
their 
Fiduciary Obligations Compliance Plan. 
25. The burden of persuasion and the ultimate burden of proof at the Phase 1.5 trial 
remains with Plaintiffs. See, e.g., Tr., April 29, 2003, at 5:25-6:1 ("the plaintiff has the 
ultimate 
burden"); Tr., July 8, 2003, p.m., at 30:8-9 ("[Plaintiffs] have got the burden"). As defined by 
the 
Court, the Phase 1.5 trial was about "the adequacy" of the plans filed by Interior Defendants. 
Tr., 
April 29, 2003, at 4:8-19, 5:6-7, 13-14. 
26. As the Court in the Phase 1.5 proceeding is limited to determining whether Interior's 
plans constitute unreasonable delay, the ultimate burden on Plaintiffs was to prove that 
Interior's plans 
describe steps "so defective that they would necessarily delay rather than accelerate the ultimate 
provision of an adequate accounting." Cobell v. Norton, 240 F.3d at 1110. 
27. It is not enough for Plaintiffs to identify obstacles or to describe past failures and 
predict 
future concerns with implementation of an otherwise adequate plan. Plaintiffs must show that, 
under the 
existing circumstances, Interior's plans are defective and would necessarily delay an adequate 
accounting. Plaintiffs have not, and cannot, meet their burden. See Section II.C.5., infra. 
28. Plaintiffs were given an opportunity to file their own historical accounting and 
compliance plans; they did so on January 6, 2003. Consideration of Plaintiffs' plans is "beyond 
the 
district court's jurisdiction." Cobell v. Norton, 240 F.3d at 1110. See Section II.A., supra. 
29. However, if the Court were to consider Plaintiffs' plans, Plaintiffs also have the 
burden 
of proving that their plans would not delay the provision of an adequate accounting within the 
meaning 
of the 1994 Act. See 25 U.S.C.A 4011(a), (b). It is impossible for Plaintiffs to satisfy that 
burden. 
C. Interior's Historical Accounting Plan Sets Forth A Methodology That Will
Enable Interior To Comply Fully With Its Obligation To Perform An Historical 
Accounting. 
1. Interior's Accounting Obligation Is Defined In The American Indian 
Trust Fund Management Reform Act Of 1994. 
30. "Plaintiffs br[ought] this lawsuit to force the government to abide by its duty to 
render 
an accurate accounting of the money currently held within the IIM trust." Cobell v. Babbitt, 91 
F. 
Supp. 2d at 6. Plaintiffs asserted "that all of the money that should be held collectively in 
their IIM 
accounts is already there; the plaintiffs simply contend the individual account balances are 
misstated." 
Cobell v. Babbitt, 30 F. Supp. 2d 24, 39 (D.D.C. 1998). Plaintiffs "ask[ed] this Court solely for 
a
declaration of the defendants' trust duties and an accounting of money already existing in the 
[IIM] 
account[s]." Id. at 40. Plaintiffs sought this relief pursuant to the 1994 Act and the common 
law of 
trusts, but this Court dismissed their common-law claims. Cobell v. Babbitt, 91 F. Supp. 2d at 
31. 
31. Thus, as this Court has recognized, the Plaintiffs "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.A. 4011." Cobell v. Babbitt, 91 F. Supp. 2d at 27; see also id. at 31 (dismissing 
Plaintiffs' 
common law claims). "The [C]ourt's review and [P]laintiffs' rights are derived from and 
determined by 
statute." Id. at 30. 
32. The 1994 Act requires Interior to "account for the daily and 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.A. 4011(a). 
33. On December 21, 1999, this Court entered a judgment 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 plaintiffs, without regard to when the funds were deposited." Cobell v. 
Babbitt, 
91 F. Supp. 2d at 58. 
34. The Court of Appeals affirmed most aspects of this Court's ruling, and stated that 
"'[a]ll funds' [in Section 4011(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 v. Norton, 240 F.3d 
at 
1102 (emphasis in original). 
35. Although the term "historical accounting" does not appear in the 1994 Act, this Court 
explained its use of the term and the purpose of the historical accounting as follows: 
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 at 116 n.135. This is consistent with the suggestion of the 
Court of 
Appeals that one cannot "give a fair and accurate accounting of all accounts without first 
reconciling 
the accounts, taking into account past deposits, withdrawals, and accruals." Cobell v. Norton, 
240
F.3d at 1102 (emphasis in original). 
36. In other words, to fulfill its duty to account on a daily and annual basis for all funds 
that 
it holds in trust, Interior must first ensure that the current balances in the IIM trust accounts 
are 
accurate. That is the goal and purpose of the so-called "historical accounting" in this case. 
37. In an April 28, 2003 Memorandum and Order, this Court defined the accounting 
required by the 1994 Act as follows: 
The Court . . . understands an 'accounting' of a trust to constitute a 
detailed report provided by a trustee for a beneficiary describing the 
trustee's conduct during the relevant time period, including a description 
of each item of property within the trust corpus, all items of property 
received into or disbursed from the trust, all income earned by the trust, 
and all expenses paid by the trust. 
Cobell v. Norton, 260 F. Supp. 2d 110, 123 (D.D.C. 2003). 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." Cobell v. Norton, 240 F.3d at 
1104. 
38. The 1994 Act also includes a current accounting obligation. It requires Interior to 
account for the daily and annual balance of all funds it holds in trust and to provide a quarterly 
statement 
of performance to each IIM account holder that identifies: "(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." 25 U.S.C.A. 4011(b). 
39. To comply with the requirements of Sections 4011(a) and (b), Interior has determined 
that it must accomplish the following three objectives: 
1) Historical Accounting - Interior must provide information that can 
be used to assess the accuracy of the current balance in each of the 
IIM accounts. . . . 
2) Current Ownership, Collection, Deposit and Transfer - Interior 
must collect the correct fund amounts in a timely manner for the correct 
IIM account holders. This requires that Interior's programs have 
adequate systems for tracking the trust land ownership interests of 
account holders and for collecting the money that is owed to each 
account holder and depositing it in Interior's Trust Funds Accounting 
System ("TFAS"). Programmatic improvements must occur in 
Interior's land title and revenue collections systems. . . . 
3) Current Accounting - Trust Funds Accounting System - Once the 
funds are collected, Interior must deposit them in the correct IIM 
account, properly credit interest earned to the account, and disburse 
from the account the correct amounts to the correct persons. . . . 
Interior's Fiduciary Obligations Compliance Plan, at 2-3 (Jan. 6, 2003) (Defs.' Ex. 1). 
Interior's 
Historical Accounting Plan describes Interior's plan for accomplishing the first objective; 
Interior's 
Fiduciary Obligations Compliance Plan describes Interior's plan for accomplishing the second and 
third 
objectives. 
a. The Statutory Historical Accounting Obligation Must Be Viewed 
In Light Of The Facts Available To Congress When It Enacted 
The 1994 Act. 
40. This statutory historical accounting requirement must be viewed in light of the facts 
available to Congress when it enacted the 1994 Act. See Minneapolis & St. L. Ry. Co. v. United 
States, 361 U.S. 173, 187 (1959); Cosby v. United States, 8 Cl. Ct. 428, 438 n.16 (1985), aff'd, 
795
F.2d 999 (Fed. Cir. 1986); see also South Carolina State Highway Dep't v. Barnwell Bros., Inc., 
303 
U.S. 177, 191 (1938) (legislative judgment presumed supported by facts known to the Legislature 
unless facts judicially known or proved preclude that possibility). Among those facts is that 
some 
Indian trust records are missing or irretrievable. 
41. Legislative history reveals that Congress knew that "[m]uch needed documentation 
[was] missing, making reconciliation extremely difficult." H.R. Rep. No. 103-778, 103rd Cong., 2d 
Sess. 10 (1994), reprinted in 1994 U.S.C.C.A.N. 3467, 3469 (emphasis added). 
42. Similarly, in June 1992, the General Accounting Office (GAO) reported: 
Since the trust fund reconciliation contract was awarded in May 1991, 
BIA and its contractor have determined that a full reconciliation of all 
tribal and Individual Indian Money accounts is neither possible nor 
cost-effective due to missing records, commingled tribal and individual 
Indian accounting records, poorly documented accounting transactions, 
and the volume of data to be reviewed. 
BIA Has Made Limited Progress in Reconciling Trust Accounts and Developing a Strategic Plan 5 
(U.S. General Accounting Office June 18, 1992) (Pls.' Ex. 139). This GAO report is cited in the 
wellknown 
"Misplaced Trust" Report issued by the House Committee on Government Operations, which 
described BIA's costly efforts in the early 1990s to conduct a complete audit and reconciliation 
of all 
IIM accounts, and which in turn was discussed by the House Natural Resources Committee in its 
report accompanying H.R. 4833, the bill ultimately enacted as the 1994 Act. H.R. Rep. No. 103- 
778, 
at 10 (discussing Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the Indian Trust 
Fund, H.R. Rep. No. 102-499, 102d Cong., 2d Sess. (1992) ("Misplaced Trust Report")). 
43. Prior to 1994, Comptroller General reports dating back to 1929 informed Congress of 
instances in which documentation supporting IIM account transactions was incomplete. See e.g., 
Defs.' Ex. 256, at 115; Defs.' Ex. 275, at 20; Defs.' Ex. 276, at 28. 
44. Because Congress enacted the 1994 Act with the understanding that some trust 
records were missing or irretrievable, Congress must have intended that compliance with the 1994 
Act's accounting requirements could be achieved despite such limitations. 
b. The Statutory Historical Accounting Obligation Is Constrained 
By Congressional Limitations, Including Appropriation Limits. 
45. Interior's accounting obligations (and, indeed, all of its trust responsibilities) are 
constrained by congressional limitations, including appropriation limits. "Any exercise of a 
power 
granted by the Constitution to one of the other branches of Government is limited by a valid 
reservation 
of congressional control over funds in the Treasury." OPM v. Richmond, 496 U.S. 414, 425 (1990). 
46. An agency may not spend more money than Congress appropriates to it. The Anti- 
Deficiency Act, 31 U.S.C. 1341, forbids "officer[s] and employee[s]" of the federal government 
from 
authorizing an obligation or expenditure exceeding an appropriation, or in advance of an 
appropriation. See generally Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 
F.3d 1166, 1171 (Fed. Cir. 1995) ("[A]n agency may not spend more money for a program than has 
been appropriated for that program . . . ."). The Anti-Deficiency Act provides agencies more than 
just 
general guidance. The law also requires agencies to promulgate regulations restricting 
obligations to the 
amount of appropriations and apportionments. 31 U.S.C. 1514. 
47. Along with the restraints imposed by the Anti-Deficiency Act, agencies must comply 
with the Purpose Statute, 31 U.S.C. 1301(a). This law requires that "[a]ppropriations . . . be 
applied 
only to the objects for which the appropriations were made except as otherwise provided by law." 
Id. 
Therefore, Interior, like every federal agency, is constrained not only by how much money Congress 
appropriates to it, but also by the requirement that it spend appropriated funds in accordance 
with the 
purpose for which the appropriations were made.
48. Interior's discharge of its responsibility to perform an accounting of IIM funds (and 
all 
of its trust responsibilities) is subject to these constraints. Expert Report of John H. 
Langbein, at 4 
(Defs.' Ex. 37). Because Congress is the settlor of the individual Indian trust, see id.; Tr., 
June 2, 
2003, p.m., at 53:13-14, 59:5 (J. Langbein), the common law of trusts is subordinate to 
congressional 
direction, including funding legislation. Expert Report of John H. Langbein, at 6 (Defs.' Ex. 
37); Tr., 
June 2, 2003, p.m., at 100:2-4 (J. Langbein); Tr., June 3, 2003, p.m., at 39:25-40:1 (J. 
Langbein). 
49. The Department of the Interior, unlike a private trustee, depends on annual 
appropriations from Congress, Tr., June 2, 2003, p.m., at 67:4-13 (J. Langbein); Tr., June 3, 
2003, 
a.m., at 12:25-13:10 (J. Langbein), and may expend funds only to the extent that Congress has 
appropriated them. Tr., June 3, 2003, a.m., at 67:4-6 (J. Langbein); Tr., June 3, 2003, p.m., at 
38:17- 
18 (J. Langbein). 
50. Funding constraints may suspend or modify an agency's statutory obligations. See 
Forest Guardians v. Babbitt, 174 F.3d 1178, 1188-89, 1193 (10th Cir. 1999) (requiring Interior to 
take action because congressional funding moratorium had ended); Environmental Def. Ctr. v. 
Babbitt, 
73 F.3d 867, 871 (9th Cir. 1995) (stating that, while appropriations restriction did not repeal 
Secretary's duty, it "prevent[ed] him from taking final action . . . at this time"); N.Y. Airways, 
Inc. v. 
United States, 369 F.2d 743, 748 (Ct. Cl. 1966) (per curiam) (stating that "failure to appropriate 
funds 
to meet statutory obligations prevents the accounting officers of the Government from making 
disbursements"). 
51. Failure of Congress to sufficiently fund a particular trust activity undertaken by 
Interior 
operates as a constructive suspension of that activity. Tr., June 3, 2003, a.m., at 19:23-25, 
20:2-5, 
56:1-5 (J. Langbein); Tr., June 2, 2003, p.m., at 94:5-10 (J. Langbein). Accordingly, funding 
shortages can operate as a defense to an allegation that a trustee failed to discharge immediately 
duties 
that might otherwise apply. Tr., June 3, 2003, a.m., at 4:6-11 (J. Langbein). 
52. Courts may not order an agency to obligate funds contrary to congressional funding 
restraints. "It is beyond dispute that a federal court cannot order the obligation of funds for 
which there 
is no appropriation . . . . Nor can it be contended that a court may appropriate funds from which 
an 
obligation may be made." Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 184 (D.C. Cir. 1992) 
(per curiam) (internal citations omitted). Furthermore, "[i]t is a well-settled matter of 
constitutional law 
that when an appropriation has lapsed or has been fully obligated, federal courts cannot order the 
expenditure of funds that were covered by that appropriation." City of Houston, Tex. v. HUD, 24 
F.3d 1421, 1424 (D.C. Cir. 1994). 
53. Congressional authorization for a program does not permit an agency to carry out that 
program in the absence of appropriations to fund it. County of Vernon v. United States, 933 F.2d 
532, 
534-35 (7th Cir. 1991) (Corps of Engineers could not continue a project when Congress did not fund 
it after its authorization). Interior is not free to use funds Congress provides for one trust 
activity for 
another trust activity without Congressional approval. Tr., June 26, 2003, p.m. at 67:14-68:24 
(R. 
Swimmer). 
2. Interior's Historical Accounting 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. 
54. Interior's Historical Accounting Plan comports fully with the unambiguous language of 
the 1994 Act, which requires an accounting of "all funds" which are "held in trust by the United 
States 
for the benefit of . . . an individual Indian" and "which are deposited or invested pursuant to 
the Act of 
June 24, 1938." 25 U.S.C.A. 4011(a) (emphasis added). The scope of the accounting described in 
the Plan is consistent with the scope of the accounting prescribed by the statute. 
a. Interior's Historical Accounting Plan Provides For An 
Accounting Of "Funds," As Required By The 1994 Act. 
55. That the accounting required by the 1994 Act is an accounting of IIM funds, rather than 
of land or other assets from which funds are generated, is clear from the plain language of the 
statute, 
which requires the Secretary to account for "all funds held in trust." 25 U.S.C.A. 4011(a) 
(emphasis added). Accordingly, this Court entered a declaratory judgment 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 plaintiffs, without regard to when the funds were deposited." Cobell v. Babbitt, 91 F. 
Supp. 
2d at 58 (emphasis added); see also Cobell v. Norton, 226 F. Supp. 2d at 116 ("[T]he defendants 
must provide plaintiffs an accurate accounting of all money in the IIM trust.") (emphasis added). 
56. The IIM trust contains only funds; it does not contain all assets held in trust for the 
benefit of individual Indians. Not all trust assets generate monies that are placed in IIM 
accounts. Nor 
are the trust assets that do generate monies themselves transferred into the IIM trust. The 
corpus of the 
IIM trust is the money that is deposited in the accounts, not the underlying trust assets that 
generate 
those funds. 
57. As the required accounting is of IIM funds, and the property within the trust corpus is 
money, the accounting should include a complete transaction history, including funds received into 
or 
disbursed from the trust, interest earned, and expenses paid. See Cobell v. Norton, 240 F.3d at 
1102; 
Cobell v. Norton, 260 F. Supp. 2d at 123. 
58. Interior's Historical Accounting Plan states that, at the end of the historical 
accounting 
process, each IIM account holder will be provided with a Historical Statement of Account that 
reflects 
"how much money was credited to [the] account and from what sources, the amount of interest 
credited to [the] account, and the disbursements made from the account." Interior's Historical 
Accounting Plan, at 2 (Defs.' Ex. 55). 
59. Although the accounting required by statute is an accounting of "funds" rather than 
"assets," Interior's Historical Accounting Plan goes further. At the end of the historical 
accounting 
process, Interior "intends 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 intends 
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." Interior's Historical 
Accounting 
Plan, at 2 (Defs.' Ex. 55). 
b. Interior's Historical Accounting Plan Provides For An 
Accounting Of Funds "Held In Trust By The United States" As 
Required By The 1994 Act; Direct Payments To Indian 
Landowners Are Not Within The Scope Of The Accounting 
Provisions Of The 1994 Act. 60. The 1994 Act requires Interior to account for funds "held in trust by the United States 
.
. . which are deposited or invested pursuant to the Act of June 24, 1938." 25 U.S.C.A. 4011(a). 
Funds that were never received by the United States because they were paid directly to Indian 
landowners, guardians, private trustees, and the like are neither "held in trust by the United 
States" nor 
"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." 
Cobell v. Babbitt, 91 F. Supp. 2d at 58 (emphasis added). 
61. Direct payments to beneficiaries are unknown to the world of private trusts, see Tr., 
June 2, 2003, p.m., at 72:18-74:13 (J. Langbein), but the individual Indian trust is a "unique 
animal," 
Tr., June 3, 2003, p.m., at 72:22 (J. Langbein), and direct-pay leases must be viewed in that 
light. 
Interior's longstanding direct payment practice accommodates the desires of trust beneficiaries 
and is 
consistent with the intent of the General Allotment Act that "the allottee, and not the United 
States, . . . 
[would] manage the land." United States v. Navajo Nation, 123 S. Ct. 1079, 1092 (2003) (quoting 
United States v. Mitchell, 445 U.S. 535, 543 (1980)). 
62. Case law, opinions of the Solicitor, Department of the Interior regulations, and GAO 
reports confirm that, for purposes of the accounting requirements of the 1994 Act, direct payments 
differ fundamentally from funds deposited into IIM accounts. 
63. In Chisholm v. House, 160 F.2d 632 (10th Cir. 1947), Interior, as trustee for Indian 
allottees of land, sued a lessee to recover payments the lessee made to third parties while 
allegedly 
knowing of an invalid conveyance of the Indians' rights. The payments were made under the terms 
of 
oil and gas leases, approved by the Secretary, providing for direct payment to the allottees and 
their 
successors in interest. The court held that the rents and royalties thus paid were not restricted 
funds, 
and accordingly, the United States lacked standing to sue for their recovery. Id. at 642. 
64. The Chisholm decision makes clear the distinction between income from restricted 
property paid directly in accordance with the terms of an approved lease and future or anticipated 
income not yet paid. The former must be treated as unrestricted funds while the latter retains 
the 
restricted character of the associated real property. See II Opinions of the Solicitor of the 
Department 
of the Interior Relating to Indian Affairs 1917-1974, at 1949, 1965 WL 12755 (Sol. Gen.) (Feb. 17, 
1965) ("Barry Memo") (Attachment A). As a result of the Chisholm decision, Interior revised its 
leasing regulations to permit the United States to sue for breach of contract and, in its 
discretion, to 
recapture supervision over direct payments. Id. 
65. Authorizing lessors to receive direct payments from third parties renders Interior's 
accounting to the lessors for such payments anomalous, if it were even possible. No mention of 
Interior 
accounting to direct-pay lessors is made in Chisholm, the Barry Memo, or the departmental 
regulations. 
Plaintiffs are wrong in claiming that another memo from the Interior Solicitor, see II Opinions of 
the 
Solicitor of the Department of the Interior Relating to Indian Affairs 1917-1974, at 1890 (1960 WL 
12652) (Nov. 1, 1960) ("Stevens Memo") (Pls.' Ex. 251), supports their theory that Interior must 
account to them for direct payments. 
66. The Stevens Memo addresses the Secretary's potential enforcement of claims against 
lessees for failure to pay amounts due. The U.S. Geological Survey had expressed concerns that
direct-pay lease arrangements did not allow it to verify the accuracy of payments made by oil and 
gas 
lessees. In light of those concerns, the Stevens Memo opines that an administrative decision "may 
involve a change in the present accounting procedure" to allow verification of the accuracy of 
lease 
payments. Id. (emphasis added). Thus, the purpose of the accounting procedure that the Stevens 
Memo addressed was to help identify claims against lessees, which is not the purpose of the 
accounting 
procedure at issue in this case, i.e., to account to beneficiaries for funds held in trust on 
their behalf. 
67. Indeed, notwithstanding the Geological Survey's proposed elimination of the direct 
payment practice, the General Accounting Office recommended that Interior use direct payments to 
Indian lessors whenever possible to effect economies in BIA. Report on Review of Selected 
Activities 
at Certain Locations, Bureau of Indian Affairs, Department of the Interior, October 1959, at 5-6 
(U.S. 
General Accounting Office July 1960) (Defs.' Ex. 186); see also Audit Report to the Congress of 
the 
United States, Administration of Individual Indian Monies by Bureau of Indian Affairs, Department 
of 
the Interior 26 (Comp. Gen. Nov. 1955) (Defs.' Ex. 84) (stating that the direct pay policy, "if 
effectively carried out by area and agency officials, should reduce considerably the number of IIM 
accounts"). 
68. When Interior revised its surface leasing regulations in 2001, it sought comments on 
whether to continue to provide for direct payment to Indian landowners. See Proposed Rule - Trust 
Management Reform: Leasing/Permitting, Grazing, Probate and Funds Held In Trust, 65 Fed. Reg. 
43,874 (July 14, 2000) (Defs.' Ex. 175). Consistent with the majority of comments it received, 
Interior continued the direct payment practice in the final rule, explaining as follows: 
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. In 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 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. 
Reg. 7068, 7080 (Jan. 22, 2001) (Defs.' Ex. 176). 
69. 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 obligation to manage or account 
for funds paid directly to Indian landowners that are not actually held in 
trust by the United States. This is consistent with section 102(a) of the 
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). 
70. Therefore, any issues that Interior's direct payment procedures might raise, such as 
whether its monitoring system is compatible with any obligation it may have to pursue potential 
claims, 
would be asset-management issues and, thus, outside the scope of this lawsuit. See Cobell v. 
Babbitt, 
30 F. Supp. 2d at 40 n.18. As far as this lawsuit is concerned, it is only relevant that direct 
payments 
are neither held in trust by the United States nor deposited or invested within the meaning of the 
1994 
Act. Accordingly, Interior properly excludes direct pay transactions from its historical 
accounting plan. 
c. Interior's Historical Accounting Plan Provides For An 
Accounting Of Funds "Deposited Or Invested Pursuant To The 
Act Of June 24, 1938" As Required By The 1994 Act. 
71. The 1994 Act requires Interior to account for funds deposited after the Act of June 24, 
19308. The Court of Appeals acknowledged this requirement when it held that Interior Defendants 
must account for 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 v. Norton, 240 F.3d at 1102 (emphasis added). 
Had Congress not intended to so delimit the accounting obligation, it would have omitted the 
phrase 
"deposited or invested pursuant to the Act of June 24, 1938" from the 1994 Act. 
72. In accordance with the 1994 Act, Interior's Historical Accounting Plan anticipates that 
each eligible IIM account holder will receive a 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 (unless the statute of limitations requires a different temporal limitation). d. Interior's Historical Accounting 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. 
73. 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 Indian which are deposited or 
invested 
pursuant to the Act of June 24, 1938." 25 U.S.C.A. 4011(a) (emphasis added); see also Cobell v. 
Norton, 226 F. Supp. 2d at 116 n.135 (stating that the accounting owed by Interior "necessarily 
involves examining past transactions and events that could [affect] the current balance" and "the 
Interior 
Department must take past transactions into consideration to ensure that the current balances in 
the IIM 
trust accounts are accurate." (emphases added)). The 1994 Act confirms Interior's duty as trustee 
to 
account for the money it holds in trust for existing account holders. 
74. The 1994 Act does not contain a retrospective element, such as requiring an accounting 
for all funds that "were" or "have ever been" deposited or invested. Moreover, as explained 
below, 
the language of the 1994 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, 1994. 
75. The 1994 Act contains two specific provisions relevant to the Secretary's accounting 
duties; both make sense only in the context of existing accounts. Section 101 of the 1994 Act is 
captioned "Affirmative Action Required." 1994 Act, Pub. L. No. 103-412, 101, 108 Stat. 4239; 
H.R. Rep. No. 103-778, at 2 (Oct. 3, 1994); codified at 25 U.S.C. 162a(d). Section 101(d) 
provides in relevant part: 
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. 
. . . 
25 U.S.C. 162a(d). 
76. 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 "[p]repar[e] and supply[] 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. 162a(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. 162a(d)(2). 
77. 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: 
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.A. 4011(a) (emphasis added). Subsection (b) (captioned "Periodic Statement of 
Performance") provides: 
Not later than 20 business days after the close of a calendar 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. 
25 U.S.C.A. 4011(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.A. 4011(c). 
78. 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 102(b) is to be 
provided "[n]ot 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.A. 4011(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., FTC v. Ken Roberts Co., 276 F.3d 583, 590 (D.C. Cir. 2001) (citing 
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)), cert. denied, 123 S. Ct. 99 
(2002). 
79. 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 are deposited or invested 
pursuant to 
the Act of June 24, 1938." 25 U.S.C.A. 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 the requisite clarity that the law be applied 
retrospectively" to those funds or those closed accounts. INS v. St. Cyr, 533 U.S. at 316. No 
such
direction is to be 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. 
80. 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. 
81. In its report accompanying H.R. 4833, the bill ultimately enacted as the 1994 Act, the 
House Natural Resources Committee discussed the "Misplaced Trust" Report previously issued by the 
House Committee on Government Operations. H.R. Rep. No. 103-778, at 10. The Misplaced Trust 
Report described BIA's costly efforts 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 all 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, 1991. 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. (emphasis added and footnote omitted). 
82. The Misplaced Trust Report's reference to the "300,000 accounts in the Indian trust 
fund," Misplaced Trust Report at 26, is particularly relevant. In its description of the IIM 
trust fund, the 
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 IIM 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 
many accounts "are held" in the IIM trust fund makes clear Congress's focus on the then-existing 
trust 
accounts. See also H.R. Rep. No. 103-778, at 9 (legislative history also stated that "[t]he BIA 
is 
currently managing . . . nearly 337,000 separate IIM accounts" (emphasis added)). 
83. Finally, as this Court noted in its 1999 opinion, Congressman Synar, the principal 
author of the Misplaced Trust Report, stated during a 1989 hearing of the House Subcommittee on 
Interior Appropriations: 
I'm going to tell you, speaking on behalf of myself and [Congressman] 
Yates and four Congresses, it is our clear intention and let the Record 
show it is our clear intention that these [Indian Trust] accounts will be 
reconciled and audited before there is any movement or transfer [of the 
funds]. 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 (footnote omitted), quoted in Cobell 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. 
84. Because Interior's Historical Accounting Plan describes an accounting that extends to 
all of the funds for which Congress contemplated an accounting, Interior's plan to provide an 
accounting for accounts open on or after October 25, 1994 is proper as a matter of law. 
e. Interior's Obligation To Perform An Accounting Does Not 
Extend To The Closed Accounts Of Deceased Predecessors Of 
IIM Account Holders. 
85. As indicated in the Historical Accounting Plan, Interior "does not contemplate 
performing historical accounting work for the closed accounts of deceased predecessors" as part of 
the 
historical accounting effort for current IIM account holders. Interior's Historical Accounting 
Plan, at II- 
3 (Defs.' Ex. 55). 
86. As an initial matter, Congress did not prescribe an accounting for accounts closed prior 
to the passage of the 1994 Act, as explained in Section II.C.2.d, supra. 
87. Interior need not examine the transactions in the account of a deceased predecessor of 
a current IIM account holder in order to provide an accounting to the current account holder. As 
explained in Interior's Historical Accounting Plan, Interior intends not only to provide IIM 
account 
holders with statements of account activity, but also to assess the accuracy of those statements 
by 
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. 
88. 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. 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, 
including the IIM account holders. Interior's probate procedures comport with constitutional 
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). 
89. Judicial review of probate determinations in federal court is available once 
administrative remedies have been exhausted. Before seeking judicial review, however, a claimant 
must exhaust administrative remedies. Arenas v. United 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). 
90. Thus, 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 
light of the 
comprehensive administrative and statutory scheme for review of probate decisions, it is proper 
for 
Interior to rely upon probate orders in the course of verifying the accuracy of the account 
activity to be 
reported to IIM account holders. 
91. Account holders who wish to contest a probate order underlying an 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. 
3. The Methodology For The Historical Accounting Set Forth In Interior's 
Historical Accounting Plan Comports Fully With The Requirements Of 
The 1994 Act. 
92. The methodology set forth in Interior's Historical Accounting Plan comports fully with 
the requirements of the 1994 Act. When the historical accounting is complete, Interior will be 
able to 
provide account holders with a transaction-by-transaction history of "past deposits, withdrawals, 
and 
accruals," Cobell v. Norton, 240 F.3d at 1102, and determine whether the current balance is 
correct in 
light of the account history. See Defendants' Proposed Findings of Fact, at I.B.3., supra. 
Interior's 
Historical Accounting Plan also provides that Interior will take the additional step of assessing 
the 
accuracy of the account histories by reviewing supporting documentation using a combination of 
transaction-by-transaction and statistical sampling techniques. See id. Moreover, Interior 
intends to 
perform document-to-transaction history sampling to assess the completeness of the transaction 
histories data and numerous high-level system tests to assess the historical reliability of the 
IIM trust 
fund system as a whole. See id. at I.B.3.d., supra. Although not necessarily required by the 
1994 Act, 
Interior believes these are prudent steps that will provide IIM account holders with the best 
available 
information about their accounts. 
93. Thus, the goal of the historical accounting effort as described in Interior's Historical 
Accounting Plan is to provide each eligible IIM account holder, as soon as is practicable, with a 
transaction-by-transaction account transaction history as well as a statement regarding its 
accuracy. 
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. See Defendants' Proposed Findings of 
Fact, 
at I.B.3., I.B.4, supra. 
94. 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 1104. 
a. The Use Of Statistical Sampling Methodologies To Assess The 
Accuracy Of The Historical Accounting Statements Is Consistent 
With Congressional Aims Embodied In The 1994 Act And 
Promotes The Feasibility Of Interior's Historical Accounting 
Plan. 
95. The use of statistical sampling methodologies in Interior's Historical Accounting Plan 
represents a reasonable exercise of the Secretary's discretion and is supported by the legislative 
history 
underlying the 1994 Act. In light of the tremendous time and cost associated with an effort to 
test the 
accuracy of each transaction in each account, and concern expressed by members of Congress about 
the length of time and level of funding required, Interior has developed an approach that will 
efficiently 
utilize available resources without compromising the accuracy of the results. See Defendants' 
Proposed Findings of Fact, at I.B.3.b., supra.
96. Contrary to Plaintiffs' repeated and erroneous assertions, Interior's Historical 
Accounting Plan does not contemplate the use of statistical sampling techniques as a substitute 
for an 
accounting. Each IIM account holder will receive a detailed transaction-by-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 land-based transactions in the 
account 
histories; the remaining transactions (including all Judgment and Per Capita Account transactions 
and 
land-based electronic transactions valued at $5,000 or more) will be individually reconciled to 
supporting documentation to assess accuracy. The use of sampling for this purpose will "result in 
a
[confidence] assertion" that will be included with each historical accounting statement. Tr., 
June 20, 
2003, p.m., at 59:20-60:2 (D. Lasater); see Defendants' Proposed Findings of Fact, at I.B.3.b., 
supra. 
97. 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 Chaves 
County Home Health Service, 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. The 
D.C. 
Circuit 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. 
98. 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. Marcos, 
103 
F.3d 767, 786 (9th Cir. 1996); Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84, 89-90 (2d Cir. 
1991); Michigan Dep't of Educ. v. United States Dep't of Educ., 875 F.2d 1196, 1206 (6th Cir. 
1989); Illinois Physicians Union v. Miller, 675 F.2d 151, 155 (7th Cir. 1982); Georgia v. 
Califano, 446 
F. Supp. 404, 409-11 (N.D. Ga. 1977). 
99. 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 described above. It reported on BIA'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 Report described "substantial difficulties in completing any IIM account 
phase I 
reconciliations" and enormous costs related to these efforts. Id. at 25-26; see also id. at 25 
n.81 
(subcommittee "is concerned by the enormity of [BIA] cost estimates to complete the IIM 
reconciliations"). The Misplaced Trust Report stated that "it might cost as much as $281 million 
to 
$390 million to audit the IIM accounts at all 93 BIA agency offices," id. at 26, and concluded: 
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 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 footnote omitted). 
100. As this Court has previously recognized, Congress enacted the 1994 Act "[b]ased 
largely on the findings made in Misplaced Trust." Cobell 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 the supporting documentation for every transaction 
in 
every individual Indian trust account and explicitly recognized the potential need 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." Misplaced Trust Report, at 26. 
101. 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. Interior's Historical Accounting Plan 
thoughtfully employs statistical sampling by combining a transaction-by-transaction verification 
of 
specific types and dollar levels of transactions with a verification of statistically valid 
samples of lowerdollar 
transactions. See Defendants' Proposed Findings of Fact, at I.B.3.b., supra. 
102. Interior's plan to provide statements and to verify transactions by sampling is 
consistent 
with professional auditing standards. For example, American Institute of Certified Public 
Accountants' 
("AICPA") guidance on auditing banks and trust departments provides that the current practice is 
for a 
trust department to provide a periodic statement an "accounting" to a customer that reflects 
the 
activity within the account. Tr., June 20, 2003, p.m., at 62:13-63:17 (D. Lasater). Under AICPA 
guidance, an auditor is to "perform sufficiently detailed tests to obtain reasonable assurance 
that 
transactions and activities within the various types of trust accounts are being conducted 
properly." Id. 
at 63:18-64:22 (D. Lasater). Significantly and contrary to Plaintiffs' groundless assertions 
the 
AICPA audit guidance does not require 100 percent testing of account activity. Id. at 69:3-70:6 
(D. 
Lasater). Rather, pursuant to Generally Accepted Auditing Standards, an auditor is required to 
collect 
sufficient competent evidentiary material to obtain reasonable assurance that financial statements 
are 
free of material misstatements. Id. at 66:23-67:17 (D. Lasater). Even Plaintiffs' witness, Mr. 
Duncan, 
concedes that it is appropriate to utilize sampling as an auditing procedure. Tr., May 29, 2003, 
p.m., at 
41:4-8 (D. Duncan). 
103. The sample size incorporated in Interior's Historical Accounting Plan is substantial, 
and 
is large enough to provide reasonable assurance to the Court and the parties regarding the 
reliability of 
the transactional listings and balances reflected in the individual account statements. See 
Defendants' 
Proposed Findings of Fact, at I.B.3.b., supra. The error rate assumption underlying Interior's 
calculation of the sample size is reasonable in light of the discovered error rates noted in the 
Arthur 
Andersen Tribal Trust Reconciliation Project and the Ernst & Young study performed by Joseph R. 
Rosenbaum. See id. at I.B.3.b., I.B.4.c., supra. 
104. Using the sampling methodologies described in Interior's Historical Accounting Plan to 
assess the accuracy of the historical accounting statements will, at a sensible cost, expedite the historical 
accounting project without sacrificing reliability. In light of the tremendous time and cost 
associated 
with an effort to test the accuracy of each transaction in each account, and concern expressed by 
members of Congress about the length of time and level of funding required for such an effort, 
Interior's 
Historical Accounting Plan utilizes available resources efficiently without compromising the 
accuracy of 
the results. The use of the sampling methodologies described Interior's Plan is entirely 
consistent with 
the congressional aims embodied in the 1994 Act and promotes the feasibility of the Plan. 
4. Interior's Historical Accounting Plan Is Feasible. 
105. The Secretary of the Interior is committed to Interior's Historical Accounting Plan, 
Interior has been moving forward with the accounting efforts described in the Plan, and the 
Secretary 
prevailed upon the Office of Management and Budget to add $100 million to the fiscal year 2004 
budget to permit the plan to go forward. Tr., June 5, 2003, a.m., at 75:16-76:24 (J. Cason). To 
the 
extent that Interior Defendants can control the factors affecting the Plan, they are committed to 
implementing it. Id. 
106. Interior has engaged five national accounting firms, two historian firms which have 
specialized in Indian issues for many years, the largest commercial trust operator in the United 
States, 
and other consultants to assist with statistical matters, trust legal matters, and other areas 
pertaining to 
the historical accounting. See Defendants' Proposed Findings of Fact, at I.B.4.a., supra. The 
consultants are actively engaged in performing the historical accounting work described in 
Interior's 
Historical Accounting Plan. See id. at I..B.4.b., supra. 
107. Interior has completed the accounting work for 16,821 Judgment Accounts with 
December 31, 2000 balances of approximately $48.5 million. Interior's Status Report to the Court 
Number Fourteen, at 34 (Aug. 1, 2003); see also Tr., June 4, 2003, a.m., at 23:23-25:3 (J. Cason). 
In addition, Interior has reconciled 117,425 transactions in Per Capita Accounts with a value of 
approximately $162 million. Interior's Status Report to the Court Number Fourteen, at 34. The 
historical accounting work for land-based accounts is also underway, as are records indexing and 
system testing projects. See Defendants' Proposed Findings of Fact, at I.B.3., I.B.4.b., 
supra. 
108. Contrary to the Plaintiffs' baseless assertions that an accounting is impossible because 
relevant records are unavailable, the experience of Interior and its consultants, including their 
experience 
with the named Plaintiffs' records, indicates that sufficient records are available to proceed 
with the 
historical accounting project. See Defendants' Proposed Findings of Fact, at I.B.4.c., supra. 
109. For example, the Paragraph 19 search and collection process demonstrated that 
sufficient records to conduct the historical accounting exist and are retrievable. See 
Defendants' 
Proposed Findings of Fact, at I.B.4.c.(1), supra. The Ernst & Young analysis performed by 
Joseph 
Rosenbaum confirms that sufficient data exists to perform an accounting for the named Plaintiffs 
(and 
their predecessors), and that Interior's IIM records related to their accounts are substantially 
accurate. 
See id. at I.B.4.c.(2), supra. Interior's tribal trust fund reconciliation project further 
supports the 
feasibility of the accounting set forth in Interior's Historical Accounting Plan. See id. at 
I.B.4.c.(3), 
supra. 
110. The professional historians retained by OHTA to assist with locating records are firmly 
of the view that sufficient IIM records are available for Interior to undertake the accounting 
described in 
their Historical Accounting Plan. See id. at I.B.4.c.(4), supra.
111. Interior's Historical Accounting Plan neither expects nor requires that all documents be 
found, see Tr., June 4, 2003, p.m., at 82:8-84:17 (J. Cason), and Interior has developed adaptive 
strategies to take into account record deficiencies, see id.; Interior's Historical Accounting 
Plan, at III- 
13 (Defs.' Ex. 55); Expert Report of Edward Angel, at 46 (Defs.' Ex. 60) ("[B]y making allowances 
for missing records, OHTA's plan both addresses gaps in the records and uses other historical 
records 
combined with the forensic abilities of skilled accountants to overcome those gaps."); see 
Defendants' 
Proposed Findings of Fact, at I.B.3., supra. 
112. Interior's 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." 25 U.S.C.A. 4011(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 IIM 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. 
5. Plaintiffs Failed To Meet Their Burden To Establish That Interior's 
Historical Accounting Plan Describes Steps So Defective That They 
Would Necessarily Delay Rather Than Accelerate The Ultimate 
Provision Of An Adequate Accounting. 
113. Plaintiffs have the burden to establish that Interior's Historical Accounting Plan 
describes steps "so defective that they would necessarily delay rather than accelerate the 
ultimate 
provision of an adequate accounting," Cobell v. Norton, 240 F.3d at 1110, and they have failed to 
satisfy that burden. 
114. Plaintiffs called only one witness in rebuttal, Dwight Duncan. See generally Tr., July 
2, 
2003, p.m., at 96 (D. Duncan recalled). Plaintiffs attempted to attack Dr. Lasater's opinions and 
the 
Ernst & Young analysis during their rebuttal case, but their effort was largely unsuccessful. 
115. Plaintiffs' witness Dwight Duncan lacks sufficient qualifications to advise the Court 
about Interior's sampling plan. Although Plaintiffs proffered Mr. Duncan as an expert on 
statistics, Mr. 
Duncan does not list statistics among the nine areas of expertise described on his curriculum 
vitae. Tr., 
May 28, 2003, p.m., at 78:4-79:25 (D. Duncan). In the two years preceding the trial, Mr. Duncan 
estimated that he spent only two percent of his professional time engaged in the designing of 
samples, 
id., at 81:1-82:8 (D. Duncan), and less than five percent of his professional time engaged in the 
execution of samples. Id., at 82:9-25 (D. Duncan). Mr. Duncan's curriculum vitae does not 
indicate 
that he has taught any statistics classes, Id. at 86:9-16 (D. Duncan), nor has he published any 
books, 
articles, or other literature regarding statistical sampling. Id. at 87:4-6 (D. Duncan). Prior 
to this trial, 
Mr. Duncan had never testified as an expert about attribute sampling, Tr., May 29, 2003, p.m., at 
43:25-44:3 (D. Duncan), or offered any professional opinions regarding noncoverage. Id. at 58:10- 
14 
(D. Duncan). 
116. Mr. Duncan has no familiarity with Generally Accepted Statistical Practices and does not 
know whether any of his opinions were prepared in accordance with such practices. Tr., May 28, 
2003, p.m., at 105:18-24 (D. Duncan). When he was deposed in March, 2003, Mr. Duncan could 
not define the term "noncoverage," Tr., May 29, 2003, p.m., at 59:10-16 (D. Duncan), and could 
not 
define the K-S Test, Tr., May 28, 2003, p.m., at 95:7-19 (D. Duncan). Mr. Duncan has never 
personally utilized the K-S Test in his professional work. Tr., May 29, 2003, p.m., at 89:19-21 
(D. 
Duncan). 
117. In forming his opinions about Interior's sampling plan, Mr. Duncan did not review a 
single supporting document for any of the individual Indian money transactions. Tr., May 29, 
2003, 
p.m., at 66:23-67:6 (D. Duncan). Nor, in forming his opinions about the sampling plan, did Mr. 
Duncan consider nonparametric tests, including the K-S Test. Id. at 86:2-9 (D. Duncan). 
118. Mr. Duncan criticized Dr. Lasater's claims of an expected error rate "near zero" but 
never opined as to what he thinks the error rate actually will be. See Tr., July 2, 2003, p.m., 
at 96:12- 
97:11 (D. Duncan). Instead, he sought largely to undermine the studies upon which Dr. Lasater 
relies 
for his conclusions. See, e.g., Tr., July 3, 2003, a.m., at 3:16-4:7 (D. Duncan) (agreeing that 
the 
validity of Dr. Lasater's opinions depend upon the accuracy of the Arthur Andersen Tribal Trust 
Fund 
reconciliation study and the Ernst & Young analysis). 
119. Mr. Duncan's criticism of the Arthur Andersen report on the Tribal Trust reconciliation 
is superficial. He criticized Dr. Lasater for not looking at the audit work papers but conceded 
that he 
had never looked at them, either. Tr., July 3, 2003, p.m., at 58:5-8 (D. Duncan). 
120. Mr. Duncan also critiqued the Ernst & Young analysis performed by Mr. Rosenbaum. 
Tr., July 3, 2003, a.m., at 70:20-24 (D. Duncan). Mr. Duncan's criticism, however, was based 
upon 
a reconstruction of Mr. Rosenbaum's database that Mr. Duncan had made with others. Tr., July 3, 
2003, a.m., at 60:8-61:13, 61:24-62:8, 68:9-24 (D. Duncan). His critique necessarily involved 
expert 
opinion as to matters (such as forensic accounting, auditing and historical analysis) for which he 
was not 
qualified as an expert. 
121. For example, Mr. Duncan contended that a certain document demonstrated that the 
Department of the Interior had charged administrative fees to IIM account holders. Tr., July 3, 
2003, 
a.m., at 27:20-28:18 (D. Duncan) ("there are fees being charged to these accounts"). He later 
conceded he was not an historian and that he did not know anything about the history of the fees 
mentioned on the few documents he discussed. Tr., July 3, 2003, a.m., at 79:6-11 (D. Duncan). He 
demonstrated a similar lack of knowledge about other records he had reviewed as well. See, e.g., 
Tr., 
July 3, 2003, a.m., at 81:16-19, 88:16-25 (D. Duncan). 
122. Mr. Duncan's review of the Ernst & Young analysis was preliminary and tentative. He 
commenced review of the Virtual Ledger only a few weeks prior to his rebuttal testimony. Tr., 
July 3, 
2003, a.m., at 46:15-17 (D. Duncan) ("we have only had access to this data for about three weeks. 
I
have not gone through all -- multiple hundred thousand pages."). Mr. Duncan acknowledged that he 
had not had a chance to ask Mr. Rosenbaum about the discrepancies Mr. Duncan had perceived or 
whether Mr. Rosenbaum and his team could resolve them. Tr., July 3, 2003, a.m., at 76:4-77:9 (D. 
Duncan). He conceded that asking Mr. Rosenbaum about the documents would have been a good 
idea. See, e.g., Tr., July 3, 2003, a.m., at 84:19-21, 85:10-15 (D. Duncan). When asked to 
explain 
why, he testified: 
Well, you would sure like to know if -- first of all, I would like to know 
whether or not this was considered a supporting document. You can't 
tell that from the data that we were provided. It's my assumption that
it's considered a supporting document because it's linked to something 
else, and roughly, the number of documents that were linked and the 
number of documents that were not linked -- in other words, didn't 
have any supporting documents -- are roughly similar to the 
percentages that Mr. Rosenbaum identified as supported and 
unsupported. So the first assumption I have had to make is that 
any document that is linked was considered supported. 
Tr., July 3, 2003, a.m., at 84:23-85:9 (D. Duncan) (emphasis added). Thus, lacking Mr. 
Rosenbaum's 
insight, Mr. Duncan's critique at trial was based upon assumptions that he did not and could not 
verify. 
In other instances, he had to rely upon the opinion of other experts. See Tr., July 3, 2003, 
p.m., at 
20:20-21:5 (D. Duncan). 
123. Mr. Duncan did not even attempt to verify Dr. Lasater's calculation of sample size. 
Tr., 
July 3, 2003, p.m., at 70:2-8 (D. Duncan). Ultimately, Mr. Duncan conceded that even if his 
criticism 
of Dr. Lasater's expected "near zero" error rate were valid, the methodology could simply adjust 
by 
increasing the sample size, reducing the confidence level or lowering the precision of the sample 
to 
accommodate a different error rate. Tr., July 3, 2003, p.m., at 71:13-21, 72:6-13 (D. Duncan). 
As 
such, his rebuttal testimony has little weight. 
D. Notwithstanding The Provisions Of Interior's Accounting Plan, The Statute Of 
Limitations And The Doctrine of Laches Bar All Claims For An Accounting Of 
Transactions In IIM Accounts From The Later Of The Inception Of The 
Account or October 1, 1984. 
1. The Statute Of Limitations Applies To Claims Arising Out of Indian 
Trusts 
124. 28 U.S.C. 2401(a) supplies the applicable statute of limitations. That section 
states, 
in pertinent part: 
Except as provided by the Contract Disputes Act of 1978, every civil 
action commenced against the United States shall be barred unless the 
complaint is filed within six years after the right of action first accrues. 
The action of any person under legal disability or beyond the seas at the 
time the claim accrues may be commenced within three years after the 
disability ceases. 
28 U.S.C. 2401(a). 
125. The statute of limitations is jurisdictional. Spannaus v. United States Dep't of 
Justice, 
824 F.2d 52, 55 (D.C. Cir. 1987). 
126. The tolling provisions in Interior's annual appropriations statutes since fiscal year 
1991 
do not preclude application of the statute of limitations. Cobell v. Babbitt, 30 F. Supp. 2d 24, 
43- 44 
(D.D.C. 1998) ("Cobell I"). Such statutes merely "stop[] the clock from commencing to run on the 
plaintiffs' viable claims as of October 1, 1990 . . . [b]ut cannot revive claims for which the 
clock 
stopped running long ago." Id. (footnote omitted). Accordingly, the six-year statute of 
limitations bars 
claims that accrued prior to October 1, 1984. See id. at 44 ("Any claims that accrued before 
October 
1, 1984, would have been time-barred before the enactment of the tolling provision in the 1990 
appropriations act."). 
127. Claims involving trusts accrue when the beneficiary first knows or should know of a
breach. As stated in Bogert and Bogert, The Law of Trusts and Trustees 951 at 629 (Rev. 2d ed. 
1995) ("Bogert"), "[t]o give rise to a cause of action against which the Statute of Limitations 
can run 
there must be a breach of some duty owed by the trustee to the beneficiary, the most extreme form 
of 
which is complete repudiation of any obligation." Thus, 
If the trustee violates one or more of his obligations to the beneficiary, 
or by words or other conduct denies that there is a trust and claims the 
trust property as his own, there obviously is a cause of action in favor 
of the beneficiary and any relevant Statute of Limitations will apply from 
the date when the beneficiary knew of the breach or repudiation, or by 
the exercise of reasonable skill and diligence could have learned of it. 
Bogert 951 at 630-34 (footnotes omitted). For example, "the trustee's denial of the 
beneficiary's right 
to information constitutes a breach of trust." Id. 961 at 4. 
128. This Court's Memorandum and Order dated April 28, 2003 ("April 28, 2003 Order"), 
Cobell v. Norton, 260 F. Supp. 2d 98, 105-07 (D.D.C. 2003), indicated that the statute of 
limitations 
to enforce a trustee's obligations does not begin to run until the trustee has repudiated the 
beneficiary's 
right to the benefits of the trust. The Court relied on treatises on trust law, but Bogert itself 
reveals 
that is not the law. The passage quoted above from Bogert states that if a trustee "violates one 
or 
more of his obligations . . . or by words or other conduct denies that there is a trust," the 
limitations 
period runs from when the beneficiary knew or should have known. Bogert 951 at 630 (emphasis 
added). By using the disjunctive "or," Bogert establishes that either a violation of obligations 
or a 
repudiation (i.e., "words or other conduct den[ying] that there is a trust") is sufficient to 
trigger the 
statute of limitations. Further, Bogert states that "[t]o cause the Statute [of limitations] to 
begin running 
during the life of the trust there must be some unequivocal act in violation of the duties of the 
trustee or 
in repudiation of the trust, as where he declines to account to the beneficiary . . . ." Id. at 
638 
(emphasis added.) Again, Bogert's use of the disjunctive "or" indicates that repudiation is not 
necessary 
for the statute of limitations to run. 
129. The Court also relied on cases such as Kosty v. Lewis, 319 F.2d 744, 750 (D.C. Cir. 
1963), but that case is distinguishable because it involved a claim to obtain trust property 
(pension 
benefits) which, as discussed below, implicates a quite different rule from claims (such as those 
in this 
case) for mismanagement or other breaches of trust duties. The same holds true with regard to the 
cases cited by the Court in which claimants sought benefits under ERISA; they were seeking 
recovery 
of trust property. 
130. As this Court acknowledged, the Federal Circuit has adopted an exception to the 
"rule," to the effect that repudiation is not necessary to commence the running of the statute of 
limitations 
with regard to "claims for damages that allege nonfeasance or misfeasance" as opposed to claims 
for 
recovery of the trust corpus. Cobell v. Norton, 260 F. Supp. 2d at 107 (citing Cherokee Nation of 
Okla. v. United States, 21 Cl. Ct. 565, 571 (1990)); see also Jones v. United States, 9 Cl. Ct. 
292, 
295 (1985), aff'd, 801 F.2d 1334 (Fed. Cir. 1986). 
131. Although this Court stated that no other circuit apparently has adopted such a rule, see 
260 F. Supp. 2d at 107, that exception has been applied elsewhere. See Harris Trust Bank of 
Arizona
v. Superior Court, 933 P.2d 1227, 1231 (Ariz. App. 1996) (rule requiring termination or 
repudiation of 
trust in order for limitations period to begin applies only to claims for possession of trust 
property, not 
to claims over breach of trust duties) (quoting Jones v. United States, 801 F.2d at 1335-36)). 
Moreover, in a number of the other cases cited below, the courts found claims barred by the 
statute of 
limitations or laches, although the trustee's acts involved breaches but not "repudiations" of the 
existence 
of the trust. 
132. Thus, case law and the quoted language from Bogert (supra) support the principle that, 
at least in cases of trust claims other than those for recovery of trust property, the statute of 
limitations 
runs from when the beneficiary knew or should have known of the trustee's alleged misfeasance or 
nonfeasance of duties. Because Plaintiffs' claims in this case arise out of allegations of 
misfeasance or 
nonfeasance, rather than for possession of trust property, repudiation was not necessary in order 
for the 
limitations period to run. 
133. Alternatively, even if repudiation were necessary to commence the limitations period, 
the allegations of myriad acts of trust violations in this case would have been sufficient to 
constitute a 
"repudiation." See Al-Abood v. El-Shamari, 217 F.3d 225, 234 n.4 (4th Cir. 2000) (repudiation can 
consist of actions that "clearly contravene[] the fundamental notion of a trust and a trustee's 
duties"); 
Jones v. United States, 801 F.2d at1334, 1336 (Fed. Cir. 1986) ("A trustee may repudiate an 
express 
trust by words or, as in this case, by actions inconsistent with his obligations under the 
trust"); Goodall 
v. Trigg Drilling Co., 944 P.2d 292, 297 (Okla. 1997) (Summers, J., concurring) (if beneficiary, 
who 
held a royalty interest in a well knew that it was producing and that he was not being paid by the 
trustee, that would be knowledge of the trustee's "repudiation," triggering the limitations 
period); Sippell 
v. Hayes, 189 Misc. 656, 663, 69 N.Y.S.2d 852, 858 (N.Y. Sup. Ct. 1947) (trustee's failure to make 
required payments constituted repudiation). 
134. The better rule, as noted above, is that the limitations period began to run when 
Plaintiffs knew or should have known of allegations that the Government violated trust 
obligations. 
Specifically with regard to claims for an accounting, statutes of limitation begin to run when the 
plaintiff 
first knows or should know that the other party was not fully complying with its obligations 
regarding 
the handling of funds or property. See Chandler v. Lally, 31 N.E.2d 1, 3 (Mass. 1941) (trust 
beneficiaries' claim for an accounting was time-barred, where trustee refused a beneficiary's 
demand for 
an accounting prior to the limitations period, even though the trustee also said he would hold the 
fund 
for the beneficiary's wife and children; alternatively, the action was barred by laches because 
the 
beneficiaries waited "approximately a quarter of a century" to bring suit); Harvey v. Leonard, 268 
N.W.2d 504, 516 (Iowa 1978) (trust beneficiary's claim for accounting was barred by laches where, 
for many years, plaintiff received statements of account that were not sufficiently detailed, but 
she failed 
to object); Kedzierski v. Kedzierski, 899 F. 2d 681, 684 (7th Cir. 1990) (claim was time-barred 
where, during a twenty-five-year period, trustee sometimes failed to make required payments, and 
beneficiary occasionally demanded an accounting, to no avail). 
135. Many of the facts of the cases cited above are similar to the allegations in this case: 
Alleged refusals to provide accountings (Chandler and Kedzierski), insufficiently detailed 
statements of 
account (Harvey), the making of occasional, inconsistent payments (Kedzierski), the beneficiary's
protests but failures to sue in time (Kedzierski, Glovaroma and Potlatch). Those courts held that 
the 
claims for accountings were time-barred. 
136. Statutes of limitations apply with equal force to Indian trust claims, including claims 
for 
breach of fiduciary duty under the same statutory scheme at issue in this case. See Jones v. 
United 
States, 801 F.2d at 1335 (claim by Indian holder of an interest in land pursuant to the General 
Allotment Act of 1887 was time-barred); Nichols v. Rysavy, 809 F.2d 1317, 1328 (8th Cir. 1987) 
(claims by descendants of Indian allottees for, inter alia, breach of fiduciary duty for conveying 
allotted 
trust land to the allottees, who later lost the property through sale or foreclosure, were timebarred 
by 
28 U.S.C. 2401(a)); Capoeman v. United States, 440 F.2d 1002, 1003-04 (Ct. Cl. 1971) 
(beneficiary's claim that Government, as trustee, improperly deducted certain charges from 
proceeds of 
timber sales on land allotted under the General Allotment Act of 1887, was time-barred; the court 
rejected the plaintiff's arguments that the statute of limitations could not apply to his trust 
claim or should 
not apply because of his status as an Indian). 
137. Also, in Littlewolf v. Hodel, 681 F. Supp. 929, 941 (D.D.C. 1988), aff'd, 877 F.2d 
1058 (D.C. Cir. 1989), Indian beneficiaries brought an action, inter alia, to require the 
Government to 
perform trust duties. The court rejected the beneficiaries' challenge to the statute of 
limitations, stating: 
to the extent that plaintiffs are asking for special treatment simply 
because they are Indians, that special treatment may not be afforded 
them. Courts have routinely subjected Indians' claims to statutes of 
limitations. 
Nor can plaintiffs argue that the limitations period is 
unreasonable because of the government's trust obligations, as statutes 
of limitation apply regardless of the existence of an Indian trust. 
Similarly, the fact that the allotments were held in trust neither makes 
plaintiffs' claims unknowable nor suggests that plaintiffs could not have 
sought advice during the past half-century about the nature of their 
claims. Any dependence on the Bureau of Indian Affairs or reliance on 
the government's trust obligations may excuse plaintiffs from an 
accusation of laches but it does not necessarily exempt them from, or 
render unreasonable, a statute of limitations that imposes a time limit on 
their ability to bring suit. 
681 F. Supp. at 940-41 (citations omitted). 
138. Other cases upholding the applicability of statutes of limitations to Indian trust 
claims or 
other claims involving allotted land include United States v. Mottaz, 476 U.S. 834, 851 (1986) 
(claim 
challenging Government's sale of plaintiff's interests in Indian allotments was time-barred; the 
Court held 
that "even for Indian plaintiffs," the waiver of sovereign immunity provided by a Government 
statute of 
limitations "'cannot be lightly implied but must be unequivocally expressed'" (quoting United 
States v. 
Mitchell, 445 U.S. 535, 538 (1980)); Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 
592 (9th Cir. 1990) ("Indian Tribes are not exempt from statutes of limitations governing actions 
against 
the United States"); Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576 (Fed. Cir. 
1988) ("statutes of limitations are to be applied against the claims of Indian tribes in the same 
manner as 
against any other litigant"); Wardle v. Northwest Inv. Co., 830 F.2d 118, 124 (8th Cir. 1987) 
(statute
of limitations barred claims for breach of fiduciary duty against the Government in administration 
of 
Indian allotment program). 
139. Contrary to the weight of authority set forth above, a minority of cases suggest that, 
in 
some circumstances, claims involving Indian trusts should not be subject to the full force of 
statutes of 
limitations. For example, this Court's 1998 opinion, 30 F. Supp. 2d at 45 n.26, cited Loudner v. 
United States, 108 F.3d 896, 901 (8th Cir. 1997), which cited Manchester Band of Pomo Indians, 
Inc. v. United States, 363 F. Supp. 1238, 1249 (N.D. Cal. 1973), for the proposition that Indianbeneficiaries 
are under a lessened duty to discover their claims against the Government, for 
statute of 
limitations purposes. 
140. Such cases state a little-held viewpoint that collapses under the weight of the many 
Supreme Court, courts of appeals, and other federal cases cited above, which apply the statute of 
limitations with full force in Indian trust cases. Moreover, the unusual principles stated in 
Loudner and 
Manchester Band are to no avail for Plaintiffs in this case. 
141. First, even under the relaxed standard mentioned in those cases, the Plaintiffs still 
must 
be deemed to have known of their claims at the times discussed above, long before October 1, 1984. 
Loudner stated that trust beneficiaries are not "exempt" from the statute of limitation. Indeed, 
Loudner 
and Manchester Band both adopted the same rule used by this Court, that the statute begins to run 
"when a trust beneficiary knows or should know of the beneficiary's claim against the trustee." 
Loudner, 108 F.3d at 901; see also Manchester Band, 363 F. Supp. at 1249. Loudner merely stated 
that a beneficiary's duty to discover claims is "somewhat lessened." 108 F.3d at 901. Even if 
adopted 
here, that mild softening of the rule would not save Plaintiffs' claims, for, as shown below, the 
facts 
plainly demonstrate that the allegations of trust violations were so well known that even under a 
"somewhat lessened" duty, the Plaintiffs knew or should have known of them. 
142. Manchester Band cited the generic principle that a statute of limitations does not run 
where there is a fiduciary relationship "until the relationship" is repudiated. 363 F. Supp. at 
1249. But, 
as noted above, that principle does not apply where, as here, the claims are not to recover the 
trust 
corpus. Thus, as shown in the cases discussed above, alleged breaches of trust obligations start 
the 
running of the statute. 
143. Second, Loudner and Manchester Band rely upon the archaic notion that all Indian 
people should be subject to a different standard because of "the necessity of dealing fairly with 
a group 
of people still placed under a disability of dependency and to which a greater obligation is owed 
than a 
narrowly legalistic view of what constitutes a technical 'duty.'" Manchester Band, 363 F. Supp. 
at 
1249 (quoting Dodge v. United States, 362 F.2d 810, 813 (Ct. Cl. 1966) (per curiam)). But even if 
such a patronizing view had any merit in past ages, it lost its force long before this suit was 
filed. 
144. The named Plaintiffs are and for many years before 1984 were well-educated, 
knowledgeable and fully capable of bringing an action on their claims long before 1984. Moreover, 
the 
argument rests upon the faulty premise that rules of law depend upon socioeconomic status. As 
stated 
in Littlewolf, "[t]o the extent that plaintiffs argue that their unfortunate socioeconomic 
circumstances 
make it inherently unreasonable for them to bring suit within the [applicable statute's] statute 
of 
limitations, that argument too cannot withstand scrutiny. Poverty and lack of education have 
never been
deemed sufficient to render a statute of limitations unreasonable under the due process clause." 
681 F. 
Supp. at 941 (footnote omitted). 
145. The statute of limitations in 28 U.S.C. 2401(a) "applies to all civil actions whether 
legal, equitable, or mixed." Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 
362, 
365 (D.C. Cir. 1993); Spannaus, 824 F.2d at 55 (same); see also Sisseton-Wahpeton Sioux Tribe, 
895 F.2d at 592 (Section 2401(a) "applies to equitable claims as well as claims for monetary 
damages" 
(citing Christensen v. United States, 755 F.2d 705, 708 (9th Cir. 1985)); Christensen, 755 F.2d at 
707 
(section 2401(a) applies to legal and equitable claims by Indians regarding their allotted land). 
Thus, 
Plaintiffs' claims for an historical accounting are governed by that statute of limitations.
2. The Doctrine of Laches Applies To The Claims In This Case 
146. In addition, some courts have looked to the doctrine of laches, which traditionally was 
applied by courts in equitable actions in which statutes of limitations were inapplicable. As 
noted 
above, the distinction between legal and equitable actions, at least in the federal courts, mostly 
has 
disappeared with regard to limitations principles. See Geyen v. Marsh, 775 F.2d 1303, 1307 (5th 
Cir. 
1985) (the Federal Rules of Civil Procedure "accomplished the merger of law and equity"). 
However, 
in the unusual instances in which no statute of limitations applies, federal courts have applied 
the 
doctrine of laches. Saffron v. Department of the Navy, 561 F.2d 938, 941 (D.C. Cir. 1977). 
147. If, for any reason, the doctrine of laches were the applicable principle to assess the 
timeliness of Plaintiffs' claim for an accounting, that doctrine would bar the claim. For laches 
to bar a 
claim, there must be inaction by the claimant and a "change of position to their detriment on the 
part of 
the persons against whom the claim is asserted." Wohl v. Keene, 476 F.2d 171, 176 (4th Cir. 
1973). 
148. In this case, inaction by Plaintiffs is indisputable; they seek accountings presumably 
going back to 1887, but did not file suit until 1996. Plaintiffs have no good reason for such 
extreme 
delay. See infra. 
149. Although the court in Littlewolf, 681 F. Supp. at 941, suggested in dicta that Indians' 
dependence or reliance on BIA or the government's trust obligations may overcome a laches defense, 
that point is not true in this case. The facts discussed below show that the Plaintiffs were well 
aware of 
the alleged violations of trust obligations over a period of decades; they were not assuming that 
all was 
well merely because of the trust relationship. They are (and even then were) educated, 
sophisticated 
people capable of bringing suit long before the 1990s. 
150. Nor can there be doubt that the passage of time since 1887 has operated to the 
Government's prejudice; that fact is manifest. The more than 115 years since the IIM allotment 
programs began have seen the deaths of innumerable Government personnel familiar with facts and 
records pertinent to transactions involving the IIM trust lands and accounts, at a minimum 
hampering 
the Government's ability to refute criticisms and challenges to the records it has and accountings 
it 
provides. 
151. Laches applies in this case at least as much as in Carnahan v. Peabody, 31 F.2d 311, 
313 (S.D.N.Y. 1929), in which descendants of a partner sued the estate of the other partner for an 
accounting of partnership assets, arising out of transactions that occurred over a century 
earlier. The 
court held the accounting claim was barred by laches: 
For a court at this time, after all possibility of adducing proof bearing 
upon the matters in controversy has gone, with the passage of more 
than a century, to attempt to determine the right to an accounting and 
thereupon to direct the defendants to account for the acts of their 
ancestors occurring over 100 years ago would be an unconscionable 
act of injustice. If the heirs and next of kin [of the partner] ever had a 
right to the accounting they now demand, the right has long since been 
abandoned by failure to assert it in any appropriate proceeding. 
31 F.2d at 313. 
3. The Class Member Knew Or Should Have Known About Their Claims 
Prior To October 1, 1984 
152. The class members knew or should have known of such claims prior to October 1, 
1984. In determining whether a plaintiff "should have known" of a claim, "the law assumes that 'the 
means of knowledge are the same thing in effect as knowledge itself.'" Mitchell v. United States 
("Mitchell III"), 13 Cl. Ct. 474, 477 (1987) (quoting Wood v. Carpenter, 101 U.S. 135, 143 
(1879)). 
As stated in Mitchell v. United States ("Mitchell I"), 10 Cl. Ct. 63, 67-68 (1986), "where there 
is 
reason to suspect there is reason to inquire and, therefore, ' [w]hatever is notice enough to 
excite 
attention and put the party on his guard and call for inquiry, is [also] notice of everything to 
which such 
inquiry might have led'" Mitchell I, 10 Cl. Ct. at 67-68 (quoting Wood v. Carpenter, 101 U.S. at 
141 
(alterations in original)), modified on reconsideration, 10 Cl. Ct. 787 (1986) ("Mitchell II"). 
Further, 
"[e]ven rumors or vague charges may demand pursuit 'if of sufficient substance to arouse 
suspicion.'" 
Id. at 68 (quoting Tobacco & Allied Stocks, Inc. v. Transamerica Corp., 143 F. Supp. 323, 331 (D. 
Del. 1956), aff'd, 244 F.2d 902 (3d Cir. 1957)). 
153. Such rules are fully applicable to trust beneficiaries, although the threshold for 
inquiry 
may be higher in those instances, Mitchell I, 10 Cl. Ct. at 68, and such rules "apply with like 
force to 
Indian cases, including situations . . . where the United States stands in the position of a 
statutory 
trustee." Mitchell III, 13 Cl. Ct. at 477. Thus, "the Indian beneficiary of a trust, no less 
than any other, 
is charged with notice of whatever facts an inquiry appropriate to the circumstances would have 
uncovered." Mitchell I, 10 Cl. Ct. at 68 (quoting Menominee Tribe of Indians v. United States, 
726 
F.2d 718, 721 (Fed. Cir. 1984)). 
154. Other courts similarly interpret the "knew or should have known" standard in a variety 
of cases, resulting in claims being time-barred, either under statutes of limitations or the 
laches doctrine. 
In City Nat'l Bank of Fla. v. Checkers, Simon & Rosner, 32 F.3d 277, 283 (7th Cir. 1994), the 
court 
applied that standard to a claim by a bank for fraud and negligence against an accounting firm 
that 
prepared misleading financial statements of a debtor, upon which the bank relied. The court held 
that 
the mere fact that the debtor was unable to repay its loan on time "should have put [the bank] on 
notice" of a need to investigate why a debtor with such a seemingly large net worth defaulted, and 
whether the bank had causes of action against anyone, including the accountants. That triggered 
the 
running of the statute of limitations, causing the bank's claim to be time-barred. Id. at 284. 
155. In Harvey v. Leonard, 268 N.W.2d 504 (Iowa 1978), the court quoted Bogert: 
A cestui que trust cannot sit idly by and close his eyes to what is going on 
around him. "One who would repel the imputation of laches on the score of 
ignorance of his rights must be without fault in remaining so long in ignorance of 
those rights. . . ." As a Pennsylvania court has said: "Laches is not excused by 
simply saying: 'I did not know.' If by diligence a fact can be ascertained the 
want of knowledge so caused is no excuse for a stale claim. The test is not 
what the plaintiff knows, "but what he might have known, by the use of the 
means of information within his reach, [which] the vigilance of the law requires 
of him." 
268 N.W.2d at 514 (quoting Bogert at 949 (2d ed. 1962)). 
156. Particularly pertinent to this case, the Harvey court held that a claim for an 
accounting 
was untimely. For a number of years, the beneficiary received summary statements, which "were not 
in 
detailed form" and did not fully disclose all information about the trust property. However, 
because the
beneficiary "accepted the statements of the trust in former years without complaint," her claim 
for further 
accountings at the trustee's expense was "barred by the operation of the doctrine of laches." 268 
N.W.2d at 516. 
157. In other contexts, the D.C. Circuit has adopted the "discovery rule," which provides 
that "if the injury is such that it should reasonably be discovered at the time it occurs, then 
the plaintiff 
should be charged with discovery of the injury, and the limitations period should commence, at 
that 
time." Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 342 (D.C. Cir. 1991) (union claim that 
employers failed to report and pay pension fund contributions accrued "when, in the exercise of 
due 
diligence, the [union's trustees] would become aware of the [the employer's] inaccuracies"); see 
also 
Norwest Bank Minn. Nat'l Ass'n v. FDIC, 312 F.3d 447, 452 & n.4 (D.C. Cir. 2002) (regarding 
latent injuries, "the right to sue is deemed to accrue when the wrong manifests itself in injury 
to the 
plaintiff" even if, at that time, "no more than nominal damages may be proved"). 
158. In a class action such as this, a number of factors demonstrate that the class knew or 
should have known of the claims. These factors include actual knowledge by some class members, 
public revelation of the alleged claims in Government hearings or publications, substantial "press 
attention," and public boards or forums discussing the issue. Mitchell I, 10 Cl. Ct. at 68-69 
(proof that 
class members knew or should have know of the violations involving alleged mishandling of timber 
sales 
included the fact that dissatisfaction with the prices that BIA received for the timber was a 
"fact of life 
for some allottees," the timber sales were the subject of congressional hearings and a public 
report, and 
dissatisfaction over the prices was expressed by a tribal council, and received "substantial press 
attention" (court noted three newspaper articles)). 
159. Each of the class members (except perhaps those continuously under "legal disability or 
beyond the seas" (28 U.S.C. 2401(a)) either knew or should have known, and, therefore, must be 
charged with knowledge, of their claims to trigger accrual of those claims, and, therefore, to 
begin the 
running of the statute of limitations long before October 1, 1984. Because those claims accrued 
prior 
to October 1, 1984, the six-year statute of limitation in 28 U.S.C. 2401(a) ran out prior to 
October 
1, 1990 the date on which the statute of limitations arguably "stopped" running because of the 
tolling 
language in Interior's annual appropriations acts. Therefore, Plaintiffs' claims for an 
historical accounting 
of any transactions, balances or other information from periods prior to October 1, 1984, are timebarred, 
and any challenges to the balances appearing in Interior's records as of October 1, 1984, 
are 
time-barred. 
160. The facts discussed in Defendants' proposed findings of fact show that, long prior to 
October 1, 1984, the named Plaintiffs in particular and the Indian community in general must be 
deemed to have been sufficiently aware of the alleged violations of the Government's trust duties 
to give 
them notice under the Mitchell I standard that "where there is reason to suspect there is reason 
to 
inquire and, therefore, [w]hatever is notice enough to excite attention and put the party on his 
guard and 
call for inquiry, is [also] notice of everything to which such inquiry might have led." Mitchell 
I 10 Cl. Ct. 
at 67-68 (internal quotation marks omitted). 
161. Plaintiffs' discovery responses and other evidence reveals that knowledge of the alleged 
breaches by Interior was so publicly discussed, revealed in numerous official Government reports,
received substantial media attention, was addressed in congressional hearings, media coverage, and 
was the subject of prior reported lawsuits, that all IIM trust beneficiaries (except those excused 
under 
28 U.S.C. 2401(a)) must be deemed to have known of these alleged breaches. A number of public, 
Government-issued reports between 1915 and 1983 discussed allegations that BIA was not properly 
carrying out trust obligations. Even Plaintiffs cited a number of these reports in their 
discovery 
responses and in their January 6, 2003 plan as proof of violations of trust duties regarding IIM 
accounts, including many of the precise duties listed in Plaintiffs' Complaint. 
162. Having conceded that these public reports reveal the alleged violations of trust duties, 
Plaintiffs cannot now deny that the reports when published between 1915 and 1983 gave the IIM 
beneficiaries contemporaneous notice of the allegations. Plaintiffs cannot have it both ways, 
claiming 
that such reports prove violations, but arguing that the public including class members was 
not on 
notice of them. Thus, the beneficiaries "knew or should have known" of their claims at that time. 
In 
addition to the public reports cited by Plaintiffs, other General Accounting Office reports to 
Congress 
during the 1950s and in 1966 alleged violations by Interior. 
163. In 1981 and early in 1984, Congress held hearings on issues pertaining to, among other 
things, Indian trusts. Included in those hearings were allegations of Interior's violations of 
its trust 
obligations regarding allotted lands. In fact, Plaintiff Earl Old Person testified at the 
February 21, 1984 
hearing, in which he complained about Interior's failure to properly manage individual Indian 
lands, and 
asserted that BIA kept improper land records. 
164. Over the years, newspaper and journal articles have reported that BIA allegedly 
violated its trust obligations regarding IIM trust monies. Thus, the public, including the IIM 
beneficiaries must be deemed to have known of such alleged violations of trust duties. 
165. The courts have also found that other public legal proceedings involving similar 
allegations against a defendant provide the sort of notice that starts the limitations clock 
running. For 
example, in Sprint Communications Co. v. FCC, 76 F.3d 1221, 1229 (D.C. Cir. 1996), the court 
found that plaintiff's administrative challenge was time-barred because it was filed more than two 
years 
(the applicable statute of limitations for such complaints) after another company had filed an 
administrative challenge that asserted similar violations. 
166. In this case, well before October 1, 1984, a number of IIM beneficiaries filed lawsuits 
(resulting in reported decisions) that asserted that the Government committed violations of IIM 
trust 
obligations. This includes the reported cases of Capoeman, 440 F.2d at 1002 (reported in 1971) 
and 
the decisions in Mitchell, including the 1980 decision of the Supreme Court, 445 U.S. at 535, and 
the 
1981 decision of the Court of Federal Claims, 664 F.2d 265. 167. The types of evidence 
discussed above are precisely the type that led the court in Mitchell I, 10 Cl. Ct. at 68-69, to 
hold that 
a class of trust beneficiaries knew or should have known of their claims. 
168. The facts thus demonstrate that the Plaintiffs, and the rest of the class knew or should 
have known of the alleged trust violations at least decades before this suit was filed. Because 
the nowliving 
class members must be charged with knowledge of the alleged violations, and their claims 
are thus 
time-barred, a fortiori any deceased trust beneficiaries' claims must be time-barred. 
169. If a claim accrued during a beneficiary's lifetime, he or she had six years to bring 
suit. 
Even if the claim survived the beneficiary's death, his personal representative was bound by the 
limitations period and the laches doctrine. 
170. For the reasons discussed above, those claims are time-barred. If the claim did not
accrue during a beneficiary's lifetime, it could not arise after his death. Therefore, even if 
the claims of 
living beneficiaries did not accrue until after October 1, 1984, that would mean that those 
beneficiaries 
who had died by that date had no claims during their lifetimes and, of course, no claims could 
arise after 
their deaths.
4. Claims Based On Failures To Report Or Account For Transactions Or 
Periods Prior To October 1. 1984, Are Time-Barred 
171. As a result of the statute of limitations or the doctrine of laches, any claims for 
accountings of transactions or balances prior to October 1, 1984, are time-barred, and Defendants 
cannot be required to account for such transactions. 
172. In a continuing legal relationship, new and separate causes of action may arise 
repeatedly, each time the defendant breaches its duty. The courts have so held in a variety of 
cases 
involving trusts, other fiduciary obligations, and other legal relationships. In such cases, the 
statute of 
limitations and laches applies to bar those claims that arose prior to the applicable limitations 
period. 
173. For example, in Mitchell II, 10 Cl. Ct. at 788, Indian allottees sued for mismanagement 
of timber sales on allotted land, including the failure to regenerate land on which timber was 
cut. The 
court held that the duty to regenerate the land was a "continuing duty," which "means that on each 
day 
the BIA failed in its duty to regenerate a given stand, there arose a new cause of action. And 
those 
causes of action which arose in the six-year limitations period may be sued upon." Id. (emphasis 
added). 
174. In Gruby v. Brady, 838 F. Supp. 820, 824, 830 (S.D.N.Y. 1993), participantbeneficiaries 
of a union pension fund brought a class action suit against the trustees for breach 
of 
fiduciary duty and mismanagement of the fund by, e.g., failing to monitor the fund's financial 
condition, 
paying out excessive benefits, and giving faulty information to participants. The court held 
that, although 
the trustees had a continuous obligation to perform their fiduciary duties, "the defendants' 
failure to do 
so gave rise to a new cause of action each time the Fund was injured, that is, each time excessive 
benefit payments were made." Id. at 831 (emphasis added). Thus, those causes of action that 
occurred more than six years earlier were time-barred. Id. 
175. In Cherokee Nation of Oklahoma, 21 Cl. Ct. at 572, plaintiffs sought damages, 
asserting that the Government breached its fiduciary duties by failing to survey tribal lands, 
failing to 
evict trespassers, and other mismanagement. Such allegations were deemed to assert a "continuing 
wrong," which could allow plaintiff to "recover for the [six year] statutory period, but not 
beyond." 
176. Barash v. Estate of Sperlin, 271 A.D.2d 558, 559, 706 N.Y.S.2d 439, 440 (2000), 
involved a claim against an estate for withheld profits. The withholding of profits was "a 
continuing 
wrong which accrued anew each time the defendants collected income and profits from the allegedly 
co-owned property and failed to give the proper percentage thereof to the plaintiff." Barash, 271 
A.D.2d at 559 (emphasis added.) Thus, plaintiff's claims were timely only as to those proceeds 
collected during the applicable limitations period. Id. 
177. The same result obtains in cases involving back pay or overtime pay. In Adams v. 
Hinchman, 154 F.3d 420 (D.C. Cir. 1998) (per curiam), federal employees sought review of the 
Comptroller General's decision denying their claims under the Fair Labor Standards Act. The court 
held that such claims for back pay or overtime "are continuing claims, a separate cause of action 
accrues each payday. A six-year statute of limitations means that an employee could recover six 
years 
of back pay or overtime compensation dating from the time he or she first filed suit." Adams v. 
Hinchman, 154 F.3d 420, 422; see also Friedman v. United States, 310 F.2d 381, 385 (Ct. Cl. 1962) 
("where payments are to be made periodically, each successive failure to make proper payment gives 
rise to a new claim upon which suit can be brought"). 
178. In the present case, even if Interior was obligated to provide a report of each 
transaction (e.g., income and disbursements) involving each IIM account, every instance in which 
Interior failed to do so "gave rise to a new cause of action." Gruby v. Brady, 838 F. Supp. at 831. The 
same is true if Plaintiffs assert that Interior was obligated to periodic accountings, or to 
provide better 
and more accurate statements of account. Each alleged failure to do so was a separate, distinct 
violation that gave rise to a new cause of action. Claims based upon such alleged failures that 
occurred 
before October 1, 1984, are time-barred. 
179. Based upon these principles, claims for accountings related to any transactions or 
periods of time prior to October 1, 1984, are time-barred. Plaintiffs cannot escape this result 
by 
arguing that all past transactions must be reviewed and reported in order to determine the correct 
current balances. The law is clear that a plaintiff cannot circumvent the statute of limitations 
by pointing 
to financial consequences during the limitations period that result from breaches that occurred 
before 
the limitations period. 
180. For example, in Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 
1449 (Fed. Cir. 1997), low-income housing providers alleged that HUD breached housing assistance 
contracts by failing to make proper rent adjustments for a number of years. Those breaches, 
however, 
occurred outside the limitations period (i.e., more than six years before suit) and, therefore, 
were timebarred. 
Id. at 1455. Plaintiffs sought to avoid that result by arguing that, because of those 
earlier 
miscalculations in rent adjustments, HUD used the wrong base numbers to calculate rent adjustment 
in 
later years (during the limitations period). In other words, plaintiffs asserted, HUD made rent 
adjustments in subsequent years that depended on the allegedly erroneous figures from earlier 
years. 
Id. at 1457-58. Therefore, plaintiffs claimed entitlement to a recalculation, including a 
recalculation of 
the earlier years' figures. Id. at 1453, 1458. The court rejected that argument and affirmed 
dismissal 
of plaintiffs' claims. Id. at 1459. The court reasoned that, even though a time-barred claim may 
have 
continuing "ill effects" later on, that does not revive the claim or allow recovery for those ill 
effects. Id. 
at 1456, 1459. 
181. The same analysis applies to Plaintiffs' argument that, in order to provide them with 
correct current balances, any errors or omissions that might have occurred in the past must be 
found 
and corrected. But if any errors or omissions occurred before October 1, 1984, claims on those 
are 
time-barred. The fact that they might have continuing "ill effects" that make today's balances 
higher or 
lower does not revive those time-barred claims or make them actionable. To hold otherwise would, 
in 
effect, render the statute of limitations a nullity, for it could always be avoided by a 
plaintiff's claiming 
that he is not seeking to litigate stale claims, merely asking for correct current balances. See 
Fitzgerald 
v. Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977) (holding that "the mere failure to right a wrong 
and 
make plaintiff whole cannot be a continuing wrong which tolls the statute of limitations, for that 
is the 
purpose of any lawsuit and the exception would obliterate the rule"). 
182. In Miele v. Pension Plan of New York State Teamsters Conference Pension Plan & 
Retirement Fund, 72 F. Supp. 2d 88 (E.D.N.Y. 1999), the court also rejected efforts to avoid the 
statute of limitations. A pension fund participant sued the plan trustees, alleging that they 
miscalculated 
his benefits by disregarding his contributions during an earlier time when he received workers'
compensation benefits. Id. at 93-94. The court found his claim accrued when the trustees 
rejected his 
arguments that his benefits had been miscalculated, and thus were time-barred. Id. at 99. 
Plaintiff 
argued for later accrual dates, asserting that every payment he received was incorrect because it 
was 
based upon the old (time-barred) miscalculations, and thus, a new claim accrued every time the 
fund 
made a payment to him. Id. at 100. The court rejected that argument, holding that a time-barred 
wrong does not remain actionable by pointing to "ill effects that continue to accumulate over 
time." Id. 
at 102. 
183. In effect, plaintiff in Miele was arguing for the same outcome as Plaintiffs in this 
case: 
Reviving claims for old errors in an account by asserting that they must be corrected in order to 
obtain 
correct recent and current balances. That argument was rejected in Miele and must be rejected in 
this 
case. 
a. Claims for Historical Accountings of IIM 
Accounts That Were Closed Before 
October 1, 1984 Are Barred by Limitations or Laches 
184. If any class members held accounts that were closed before October 1, 1984, claims 
for an accounting of those accounts would be completely time-barred. Under the principles 
discussed 
above, those class members knew or should have known of trust violations before October 1, 1984. 
Once their accounts closed and no further transactions occurred, no further causes of action for 
an 
accounting arose. Thus, all of their claims for an accounting pre-dated October 1, 1984. They 
had six 
years to bring suit. For this group, that period expired before October 1, 1990. Thus, their 
claims for 
an accounting became time barred.
b. IIM Accounts That Existed Both Before and After October 1, 
1984, May Receive An Accounting Only of Transactions 
and Balances In Those Accounts After That Date 
185. Those class members with IIM accounts that existed before and after October 1, 1984, 
may obtain an accounting only for the period since October 1, 1984. At most, upon each 
transaction 
or "each day" (Mitchell II, 10 Cl. Ct. at 788), a separate and distinct cause of action for an 
accounting 
arose. They had six years to bring each such cause of action. Those that pre-date October 1, 
1984, 
are time-barred. Therefore, no accounting is due them for any transactions or balances prior to 
October 1, 1984. The balances shown in Interior's records as of October 1, 1984, cannot be 
challenged; any claims over those balances accrued prior to that date and are time-barred. 
c. IIM Accounts That Existed Only After October 1, 1984, 
May Receive an Historical Accounting of 
Transactions and Balances After That Date 
186. Those who held accounts only after October 1, 1984, may obtain an accounting for the 
balances and transactions after that date. 
5. Equitable Tolling Does Not Apply 
187. As discussed above, limitations periods are not equitably tolled merely because a claim 
involves a trust relationship or is brought by Indians in a trust relationship. Nor does this 
case otherwise 
warrant equitable tolling of the statute of limitations. In Irwin v. Department of Veterans 
Affairs, 498 
U.S. 89, 95-96 (1990), the Court recognized that equitable tolling is potentially available in 
claims 
against the Government, but that federal courts typically have imposed that remedy "only 
sparingly." 
188. Equitable tolling, the Supreme Court noted, does not apply "where the claimant failed to 
exercise due diligence in preserving his legal rights," or "to what is at best a garden variety 
claim of 
excusable neglect." Irwin, 498 U.S. at 96 (even though plaintiff's lawyer was out of the country 
at the 
time that an EEOC notice was received at his office, this was insufficient to equitably toll the 
limitations 
period that ran from date the notice was received); see also Washington v. Washington Metrop. Area 
Transit Auth., 160 F.3d 750, 753 (D.C. Cir. 1998) ("The court's equitable power to toll the 
statute of 
limitations will be exercised only in extraordinary and carefully circumscribed instances") 
(quoting 
Smith-Haynie v. District of Columbia, 155 F.3d 575, 579-80 (D.C. Cir. 1998)). 
189. Even if Plaintiffs alleged that the Government committed "fraud," that would not avoid 
the statute of limitations. In Wood v. Carpenter, the Court held that "[a] party seeking to avoid 
the bar 
of the statute [of limitations] on account of fraud must aver and show that he used due diligence 
to 
detect it, and if he had the means of discovery in his power, he will be held to have known it." 
101 
U.S. at 141. 
190. Also, in Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), overruled in part on other 
grounds, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 
(1993), the D.C. Circuit stated: 
The doctrine of fraudulent concealment does not come into play, 
whatever the lengths to which a defendant has gone to conceal the 
wrongs, if a plaintiff is on notice of a potential claim. A key aspect of a 
plaintiff's case alleging fraudulent concealment is therefore proof that 
the plaintiff was not previously on notice of the claim he now brings. By 
"notice," we refer to an awareness of sufficient facts to identify a 
particular cause of action, be it a tort, a constitutional violation or a 
claim of fraud. We do not mean the kind of notice based on hints,
suspicions, hunches or rumors that requires a plaintiff to make 
inquiries in the exercise of due diligence, but not to file suit. 
Hobson, 737 F.2d at 35 (emphasis added). 
191. In Sprint Communications, the court stated that, even if the "defendant fraudulently 
concealed material facts related to its wrongdoing," the fraudulent concealment doctrine will not 
apply if 
"the defendant shows that the plaintiff would have discovered the fraud with the exercise of due 
diligence." 76 F.3d at 1226. To show this, the "defendant must show that the plaintiff had 
'something 
closer to actual notice than the merest inquiry notice that would be sufficient to set the statute 
of 
limitations running in a situation untainted by fraudulent concealment.'" Id. (quoting Riddell v. 
Riddell 
Washington Corp., 866 F.2d 1480, 1491 (D.C. Cir. 1989)). 
192. These principles demonstrate that the doctrine of fraudulent concealment does not 
apply here. First, as the court in Hobson noted, the fraudulent concealment doctrine only applies 
"absent laches or negligence on plaintiff's part." 737 F.2d at 33. As shown in above, laches is 
present 
in this case. 
193. Second, Plaintiffs were "previously on notice of the claim [they] now bring[]," Hobson, 
737 F.2d at 35, thus precluding equitable tolling. This is established by depositions testimony 
of the 
named Plaintiffs, indicating their long-standing awareness of their claims, and by the numerous 
pre-1984 
agency reports, substantial media coverage, and other litigation that documented and disclosed to 
the 
entire Indian community and the rest of the public sufficient allegations of trust violations to 
require that 
Plaintiffs file suit prior to October 1, 1984. Thus, not only did the Government not actually 
conceal the 
claim for an accounting, but, on the contrary, that claim was manifestly self-revealing. Thus, 
the 
limitations clock began to run before October 1, 1984, and it ran out before the tolling period 
began on 
October 1, 1990. 
194. No facts in this case meet the standard for equitable tolling, particularly in light of 
the 
length of time over which the allegations of trust violations have been publicly aired and known. 
"The 
test of due diligence measures the plaintiff's efforts to uncover his cause of action against what 
a
reasonable person would have done in his situation given the same information." Richards v. 
Mileski, 
662 F.2d 65, 71 (D.C. Cir. 1981). All the facts necessary to allege that the Government 
supposedly 
had repudiated its trust obligations and that, therefore, an accounting was due, were public 
knowledge 
before October 1, 1984, and must be deemed known to the Plaintiffs. Nothing more needed to be 
done to "uncover [the] cause of action," id., because it already was uncovered. Equitable tolling 
is 
inapplicable where a party "had the means of discovery in his power." Wood v. Carpenter, 101 U.S. 
at 141. The facts discussed above demonstrate that Plaintiffs had ample notice of their claims, 
particularly of their claims for an accounting, before October 1, 1984. 
E. The Court Must Reject Plaintiffs' Plan for Determining Accurate Balances in 
the Individual Indian Trust. 
195. As explained above, the judicially enforceable duty at issue in this case is the 
production 
of account statements to individual IIM account holders, and judicial review prior to final agency action 
must be limited to, at most, determining whether Interior's Historical Accounting Plan (or 
subsequent 
plans for the historical accounting) describes steps so defective that they would necessarily 
delay rather 
than accelerate the ultimate provision of an adequate accounting. See Cobell v. Norton, 240 F.3d 
at 
1110. 
196. Under well-established principles governing judicial review of agency action and the 
separation of powers concerns that underlie these principles, it is the Secretary of the Interior, 
rather 
than the Court or the Plaintiffs, who must determine the manner in which the historical accounting 
is to 
be performed and the IIM trust is to be managed. See Defendants' Proposed Conclusions of Law at 
II.A., supra. Accordingly, the plans submitted by Plaintiffs on January 6, 2003 may not be 
considered 
or adopted by the Court. 
197. However, even if the Court could properly consider Plaintiffs' Revenue Model, the plan 
must be rejected because no competent evidence was submitted to support it. Moreover, it is a 
thinly 
disguised claim for money damages rather than a plan for conducting an historical accounting, it 
conflicts with the requirements of the 1994 Act and this Court's previous orders, and is based 
entirely 
on the false assumption that insufficient IIM trust records are available to undertake the 
historical 
accounting.
1. No Competent Evidence Supports Plaintiffs' Plan 
198. The only evidence proffered by Plaintiffs in support of their plan was the testimony of 
individuals they retained and sought to qualify as expert witnesses. Their testimony, however, is 
not 
admissible and is otherwise incompetent. 
a. Strict Standards Apply To The Admissibility Of Expert 
Testimony 
199. The admissibility of expert testimony at trial depends on whether the substance of that 
testimony satisfies the reliability and relevance requirements set down by the Supreme Court in 
the 
cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. 
Carmichael, 526 U.S. 137 (1999). In Daubert, the Supreme Court stated: 
Faced with a proffer of expert scientific testimony, then, the trial judge 
must determine at the outset, pursuant to Rule 104(a), whether the 
expert is proposing to testify to (1) scientific knowledge that (2) will 
assist the trier of fact to understand or determine a fact in issue. This 
entails a preliminary assessment of whether the reasoning or 
methodology underlying the testimony is scientifically valid and of 
whether that reasoning or methodology properly can be applied to the 
facts in issue. 
509 U.S. at 592-93 (footnotes omitted) (emphasis added); see also Kumho Tire, 526 U.S. at 147 
(confirming that Daubert principles apply to non-scientific experts). 
200. The Supreme Court has articulated a number of factors for a court to consider in 
deciding whether expert evidence is admissible: 
"Ordinarily, a key question to be answered . . . will be whether it can be (and has 
been) 
tested." Daubert, 509 U.S. at 593. 
"Another pertinent consideration is whether the theory or technique has been subjected 
to peer review or publication." Id. 
"Additionally, in the case of a particular scientific technique, the court ordinarily 
should 
consider the known or potential rate of error . . . and the existence and maintenance of 
standards controlling the technique's operation . . . ." Id. at 594 (citations 
omitted). 
"Finally, 'general acceptance' can yet have a bearing on the inquiry. . . . Widespread 
acceptance can be an important factor in ruling particular evidence admissible, and 'a 
known technique which has been able to attract only minimal support with the 
community,' . . . may properly be viewed with skepticism." Id. (citation omitted). 
See also Groobert v. President and Directors of Georgetown College, 219 F. Supp. 2d 1, 6 (D.D.C. 
2002) (listing factors that trials courts may apply in assessing reliability). 
201. In this Circuit, expert testimony must also satisfy a two part test of admissibility: 
To evaluate expert testimony, the Federal Rules of Evidence provide 
that "[i]f scientific, technical, or other specialized knowledge will assist 
the trier of fact to understand the evidence or to determine a fact in 
issue, a witness qualified as an expert by knowledge, skill, experience, 
training, or education, may testify thereto in the form of an opinion or 
otherwise." Fed. R. Evid. 702. Interpreting this provision, we apply a 
two-part test for determining the admissibility of expert testimony: the 
witness (1) must be qualified, and (2) must be capable of assisting the 
trier of fact. 
Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1211 (D.C. Cir. 1997) 
(citing Exum v. General Electric Co., 819 F.2d 1158, 1163 (D.C. Cir. 1987)) (emphasis added) 
(brackets in original). 
202. It is thus the Court's responsibility to make the admissibility determination as the 
"gatekeeper" under Daubert and Kumho Tire. Such determinations are not factual issues in dispute 
to
be decided by the trier of fact. Fed. R. Evid. 104(a) ("Preliminary questions concerning the 
qualification of a person to be a witness . . . or the admissibility of evidence shall be 
determined by the 
court"). The issue of admissibility of an expert opinion is not itself, therefore, an appropriate 
subject for 
expert testimony. See Fed. R. Evid. 702 (permitting expert testimony if it will assist the "trier 
of fact"). 
b. The Court May Not Delegate Its Gatekeeper Function And 
Therefore May Not Admit Expert Testimony Concerning 
Whether The Testimony Of Proffered Experts Is Admissible 
Under Daubert/Kumho Tire 
203. Plaintiffs proffered Dwight J. Duncan as an expert, in part, to testify as to the 
underlying 
reliability and relevance of the methodologies relied upon in Plaintiffs plan the very same 
methodologies about which Plaintiffs' other proposed experts would be asked to opine. For 
example, 
Mr. Duncan's report assesses the methodologies employed in Plaintiffs' Plan GIS data overlays, 
reliance on other supposed experts, and historical data and for each category concludes that the 
methodology is both "reliable" and "relevant." Duncan Report, at Secs. 5.2.4 (GIS data overlays), 
5.3.4 (reliance on other purported experts), and 5.4.4 (historical data) (Pls.' Ex. 37). Mr. 
Duncan 
concludes that the "methodologies employed in the Plaintiffs' Plan are based on scientific 
knowledge, 
are applied appropriately, and are reliable and relevant in evaluating the issues before the Court 
in this 
matter." Duncan Report, at Sec. 6.0 (Pls.' Ex. 37) (second opinion). 
204. Because the Court may not delegate its gatekeeper function, expert advice about 
reliability and relevance of other proffered testimony does not assist the Court. In Daubert, the 
Supreme Court explains that "the trial judge must determine at the outset, pursuant to Rule 104(a) 
[of 
the Federal Rules of Evidence] whether the expert is proposing to testify to (1) scientific 
knowledge 
that (2) will assist the trier of fact to understand or determine a fact in issue." 509 U.S. at 
592 
(emphasis added) (footnote omitted). 
205. Similarly, in Kumho Tire, the Court notes that in "Daubert, this Court held that Federal 
Rule of Evidence 702 imposes a special obligation upon a trial judge to 'ensure that any and all 
scientific 
testimony . . . is not only relevant but reliable.' The initial question before us is whether 
[Daubert's] 
basic gatekeeping obligation applies only to 'scientific' testimony or to all expert testimony. 
We, like the 
parties, believe that it applies to all expert testimony." 526 U.S. at 147 (quoting Daubert, 509 
U.S. at 
589) (emphasis added). Thus, a court may not delegate this gatekeeper obligation by reliance upon 
expert opinion concerning reliability or relevance of other expert testimony. 
206. In addition, because the Daubert question is one of law and not of fact, expert 
testimony is by definition incapable of assisting the trier of fact on this issue, which is 
the second 
prerequisite for expert witness use in this Circuit. Burkhart, 112 F.3d at 1211. 
207. Even if such "gatekeeper" testimony were arguably appropriate, Mr. Duncan also fails 
the first prerequisite: he is not qualified to testify about whether Plaintiffs' methodologies 
satisfy Daubert. 
208. He lacks any education or training either in law or the technical fields that are drawn 
upon by Plaintiffs' methodologies. Mr. Duncan's two college degrees are in economics. Duncan 
Report, Appendix A at 8 (Pls.' Ex. 37). Mr. Duncan's resume identifies him as "an economist who 
also 
holds the Chartered Financial Analyst designation and has over nine years of experience in 
economic 
and financial consulting." Duncan Report, Appendix A at 1 (Pls.' Ex. 37). 209. At trial, Mr. Duncan conceded that he has never previously participated in, much less 
attended court to observe, a Daubert/Kumho Tire hearing. Tr., May 28, 2003, a.m., at 73:13-74:21 
(D. Duncan). 
210. Mr. Duncan also conceded that he had not individually reviewed the methodologies 
employed by (1) Dr. Wright or Questa Engineering with regard to oil and gas revenues, Tr., May 
29, 
2003, p.m., at 18:5-19:4 (D. Duncan); (2) Mr. Stinnett or Pincock, Allen and Holt with regard to 
the 
minerals revenues, id. at 20:16-20:21 (D. Duncan); or (3) Mr. Gabriel with regard to the use of 
GIS, 
id. at 24:7-24:11 (D. Duncan). He also conceded that he is not in a better position than Mr. 
Stinnett to 
testify about the reliability of Mr. Stinnett's methodology. Tr., May 29, 2003, p.m., at 21:11-14 
(D. 
Duncan). 
211. With respect to relevance, Mr. Duncan admitted that he did not explicitly apply the 
relevancy standard outlined in Federal Rule of Evidence 401 and could not actually opine as to 
whether 
his relevancy standards satisfy the requirements of Rule 401. Tr., May 29, 2003, p.m., at 8:5-9:2 
(D. 
Duncan). Thus, even if the Court were authorized to consider such evidence as part of its 
"gatekeeper" 
function, Mr. Duncan lacks the qualifications to testify about it.
c. Richard Fasold's Testimony About His Model Fails to Satisfy 
the Daubert/Kumho Tire Standard 
212. Plaintiffs offered Richard Fasold as an expert witness to testify concerning the 
methodology behind the model proposed by Plaintiffs in their alternative plan, and considering 
that 
testimony in light of the Daubert/Kumho Tire standards, it is clear that the Court should not 
rely on Mr. 
Fasold. 
213. Mr. Fasold was responsible for preparing a model that Plaintiffs outline in their 
January 
6 plan and which they championed at trial as an alternative to the historical accounting that 
Plaintiffs 
have complained the Secretary of the Interior is statutorily obligated to render. Plaintiffs 
claim that their 
model "quantif[ies] the monies generated from individual Indian trust lands." Plaintiffs' Revenue 
Model 
at 39. It is not, as Mr. Fasold conceded at trial, an accounting "in and of itself," Tr., May 14, 
2003, 
p.m., at 12:25-13:3 (R. Fasold), but he touts it as a method for determining "revenues derived 
from 
individual Indian trust lands and other individual Indian trust monies from 1887 to the present 
without 
relying on information generated by the Department of the Interior, to the extent possible." 
Report of 
Richard E. Fasold at 1 (Feb. 28, 2003) ("Fasold Report") (Pls.' Ex. 35); see Tr., May 14, 2003, 
p.m., 
at 6:16-7:3 (R. Fasold). Mr. Fasold also provided his opinion with regard to financial models. 
Tr., 
May 14, 2003, p.m., at 6:16-6:21 (R. Fasold). 
214. Mr. Fasold's entire approach is wholly unique and apart from anything he had ever 
done before. He prepared a model to estimate revenues generated from Indian trust lands that "to 
the 
extent possible" disregarded Interior Department records relating to those revenues. Tr., May 14, 
2003, p.m., at 6:16-7:3 (R. Fasold). Mr. Fasold's own deposition testimony - which he reaffirmed 
at 
trial - confirms the unusual nature of such an assignment: 
Q. I have put up on the Elmo [Mr. Fasold's March 21, 2003 Deposition transcript], 
and this is page 91. And I'm reading from lines four through 16. 
"Question, in the course of all the work you have done outside of the 
Cobell case, have you ever, particularly with respect to companies that 
you for example come in to try to turn around, have you ever come in 
and just wholly rejected the company's accounting data and relied 
exclusively on third-party data instead?" 
"Answer, no." 
"Question, so would it be fair to say that the methodology that is 
described in your background section is one you have never employed 
in any other context?" 
"Answer, yes, I think that is fair to say." 
That was your testimony then? 
A. That is correct. 
Q. And that was truthful, wasn't it? 
A. Yes.
Tr., May 14, 2003, p.m., at 11:24-12:24 (R. Fasold). 
215. Mr. Fasold's model is not sufficiently defined. First, it is an amalgamation of various 
methodologies to generate estimates for revenues. The methodologies typically, though not 
uniformly, 
vary depending on the revenue stream. See Plaintiffs' Revenue Model at 39-41. This variation is 
confirmed by Table 1 in Plaintiffs' Revenue Model, which describes the various methodologies to 
ascertain "natural resource extraction monies estimated." Id. at 40-41. In two cases, "oil and 
gas" and 
"hard rock minerals," the Revenue Model lists two different methodologies; in an "Other" category, 
the 
model lists no methodology at all. Id. at 41 (Table 1). 
216. Moreover, Mr. Fasold's methodology remains in flux. His report (in the "Methodology" 
statement) warns: 
As new data becomes available to [Mr. Fasold's company] or the 
natural resource experts through discovery or is made available from 
third parties, the determination of the Indian and IIM Revenues will be 
refined. 
Fasold Report, at 2. Mr. Fasold's model is unreliable, because it is a unique approach and is not 
sufficiently defined. 
217. Mr. Fasold relies on multiple methods to estimate revenues associated with oil and gas 
and mining revenues, including Geographic Information System ("GIS") data overlays and natural 
resource experts. See Plaintiffs' Revenue Model at 41 (Table 1). He apparently relies primarily 
on 
GIS data overlays, except where "GIS data are not available." Fasold Report, at 2. 
Mr. Fasold describes his use of GIS data overlays as ''begin[ning] with digitized map information 
as a 
base." Id. at 1. He "overlays" additional GIS data for the purpose of estimating production data 
not 
on allotted lands -- but within entire Indian reservation boundaries. Id. at 1. Mr. Fasold then 
relies 
upon other purported experts to generate estimates of production and pricing, again with respect 
to an 
entire Indian reservation. Id. at 1-2. Because the resulting data are all aggregated by 
reservation, Mr. 
Fasold uses a ratio that he developed in order to fashion some proportion of the total revenues 
that he 
allocates to allotted lands. Id. at 2. 
218. Although the use of GIS data to assemble, store, manipulate, and display geographically 
referenced information has become mainstream, Mr. Fasold's use is novel because it would use GIS 
data overlays as a critical component for revenue-estimation. 
219. Under Daubert and Kumho Tire, Plaintiffs have the burden of demonstrating the 
reliability of this novel approach but they did not discharge that burden. See also Bourjaily v. 
United 
States, 483 U.S. 171 (1987). 
220. Mr. Fasold has never previously used GIS overlays as part a financial model. Tr., May 
14, 2003, p.m., at 19:14-15 (R. Fasold); Tr., May 15, 2003, p.m., at 100:19-22 (R. Fasold). 
Matthew Gabriel, Plaintiffs' witness on GIS use, testified that he was aware, "second hand" and 
from a 
"web search," of the use of GIS in another litigation, but was not aware of the purpose for which 
GIS 
was used. Tr., May 16, 2003, p.m., at 87:13-25. Thus, to Mr. Gabriel's knowledge, Cobell is the 
only 
litigation in which GIS data overlays are proposed as a revenue-estimation process. 
221. No evidence exists of any independent peer review of Mr. Fasold's model. The only 
reviews cited by Mr. Fasold were by Mr. Duncan, a consultant retained by Plaintiffs' counsel, and 
Freeman & Mills, a consulting firm apparently retained and paid by Mr. Fasold's firm. Tr., May 14, 
2003, p.m., at 21:4-22:5 (R. Fasold); Tr., May 15, 2003, p.m., at 109:3-110:23 (R. Fasold). Such 
reviews plainly do not meet the independent publication and peer review discussed in Daubert and 
Kumho Tire. Various elements of the methodology may have been individually peer reviewed in other 
settings, but Mr. Fasold was unaware of whether these various methodologies, as he had recombined
them, had been reviewed by anyone other than Plaintiffs' paid consultants. Tr., May 14, 2003, 
p.m., at 
21:13-22:5 (R. Fasold). 
222. Mr. Fasold's testimony also confirmed that he could not provide any measure to 
quantify the degree error associated with the use of his methodology. Tr., May 14, 2003, p.m., 
at 
22:21-23:16 (R. Fasold). Thus, the reliability of the model supported by Mr. Fasold is both 
untested 
and undetermined and is not admissible under Daubert or Kumho Tire. 
223. In addition to the failure of the methodology as a whole, certain component parts of Mr. 
Fasold's model are not reliable even when standing alone. For situations in which GIS data 
overlays 
are not "feasible," the model turns to hired natural resource experts to collect research on 
revenues from 
the allotted lands in question. Plaintiffs' Revenue Model at 40; see Fasold Report, at 2 (Pls.' 
Ex. 35). 
224. For some of the oil and gas revenues in his analysis, Mr. Fasold relies upon Questa 
Engineering, "oil and gas experts retained by the Plaintiffs, [which] have developed a methodology 
to 
identify oil and gas production, rents and bonuses, on Indian lands . . . ." Fasold Report, at 3 
(citing 
Report of John D. Wright (Feb. 28, 2003) (Pls.' Ex. 34)). Dr. Wright and Questa Engineering, 
Plaintiffs' Oil and Gas witnesses, have only been on the project since December 2002 and all of 
their 
work is preliminary. Tr., May 15, 2003, p.m., at 106:14-107:8 (R. Fasold). 
225. Mr. Fasold was unaware of any effort to test the overall validity of using Dr. Wright's 
methodology for calculating oil and gas revenues. Tr., May 15, 2003, p.m., at 110:18-23 (R. 
Fasold). 
Mr. Fasold was also unaware of any effort to subject Dr. Wright's methodology to peer review. 
Tr., 
May 15, 2003, p.m., at 110:24-111:5 (R. Fasold). Dr. Wright's methodology has not been published, 
either. Tr., May 15, 2003, p.m., at 111:6-12 (R. Fasold). Given these circumstances, no basis 
exists 
for this Court to find that the oil and gas analysis is reliable under Daubert and Kumho Tire. 
226. Similar problems of proof exist with respect to the hard rock minerals witnesses 
retained by the Plaintiffs. They engaged Pincock Allen & Holt and an affiliate mining consultant, 
Landy 
Stinnett, to develop a methodology to identify hard rock mineral production on Indian lands. 
Fasold 
Report, at 5 (citing Report of Landy A. Stinnett (Feb. 28, 2003) (Pls.' Ex. 38)). At trial, Mr. 
Fasold 
acknowledged that Mr. Stinnett used average prices, rather than actual prices in his methodology 
for 
estimating coal revenues and that average prices could vary from actual prices by as much as 50 
percent. Tr., May 15, 2003, p.m., at 111:13-112:3 (R. Fasold). 
227. Even if this gross potential for error could be corrected or overlooked, Mr. Fasold's 
testimony provided no basis to find Stinnett's mineral analysis is reliable under Daubert and 
Kumho 
Tire. Mr. Fasold was not aware of any effort to test the validity of Mr. Stinnett's methodology, 
to 
subject it to peer review, or whether it had been published. Tr., May 15, 2003, p.m., at 114:19- 
115:14 (R. Fasold). 
228. Plaintiffs' timber sale valuation is equally unreliable and inapposite. Plaintiffs' 
Revenue 
Model and Mr. Fasold rely exclusively upon the work of Dr. Alan McQuillan for information 
regarding 
"timber volume and values on individual Indian trust beneficiaries' lands." Fasold Report, at 5; 
see 
Plaintiffs' Revenue Model at 41 (Table 1). 
229. Professor McQuillan used two different forms of date for his timber analysis. Tr., May 
16, 2003, a.m., at 31:4-33:13 (R. Fasold). For his analysis of the period 1887 to 1998, Professor
McQuillan wanted to spend two years to study timber sales, but did the work over the summer of 
2000. Tr., May 16, 2003, a.m., at 32:25-33:11 (R. Fasold). For his analysis of the period from 
1999 
to 2002, Professor McQuillan used a special methodology to estimate timber sales that he described 
as 
being "a very crude methodology." Tr., May 16, 2003, a.m., at 35:25-36:2 (R. Fasold). 
230. Again, as Mr. Fasold was unaware of whether Professor McQuillan's specific 
methodology employed in this case for estimating timber revenues had been peer reviewed, Tr., May 
16, 2003, a.m., at 39:3-6 (R. Fasold), and unaware of any method that was used or could be used 
for 
calculating the rate of error associated with Professor McQuillan's analysis of timber revenues, 
Tr., 
May 16, 2003, a.m., at 39:24-40:3 (R. Fasold), Plaintiffs' timber analysis cannot withstand 
scrutiny 
under Daubert and Kumho Tire. 
231. Plaintiffs' Revenue Model and Mr. Fasold's analysis purport to rely upon "Historical 
Data" for two other revenue categories, land leases and land sales. Plaintiffs' Revenue Model at 
41 
(Table 1) and Fasold Report, at 6-8. The methodology, however, is equally unreliable, and 
likewise 
fails to meet the requirements of Daubert and Kumho Tire. 
232. For example, Mr. Fasold performed his land lease revenues analysis by often 
combining individual and tribal revenues, "making it difficult to calculate the IIM portion." 
Pls.' Ex. 35 
at 6, n.8; Tr., May 16, 2003, a.m., at 40:25-41:3 (R. Fasold). For his land lease analysis, Mr. 
Fasold 
used estimates for years where separate IIM revenue data was not available, by using various "data 
points" and averaging the revenues in between those data points. Tr., May 16, 2003, a.m., at 
42:10- 
53:19 (R. Fasold); Pls.' Ex. 35 at 7. Mr. Fasold conceded that his methodology for generating 
land 
lease revenues will result in potential errors, given its use of estimates. Tr., May 16, 2003, 
a.m., at 
57:6-17 (R. Fasold). As with the other portions of Plaintiffs Revenue Model, Mr. Fasold's 
methodology for land lease analysis has not been the subject of peer review by anyone other than 
Plaintiffs' paid consultants. Tr., May 16, 2003, a.m., at 56:25-57:5 (R. Fasold). 
233. As for land sales, Mr. Fasold's land sales analysis utilizes no actual land sales data 
for 
individual allottees from 1935 to the present. Tr., May 16, 2003, a.m., at 59:2-20 (R. Fasold). 
Mr. 
Fasold conceded that for the years 1935 to the present, the land sales revenues generated by his 
analysis are "entirely estimates" and "not actual data," Tr., May 16, 2003, a.m., at 60:25-61:4 
(R. 
Fasold); Pls.' Ex. 35 at 8. 
234. Mr. Fasold is unaware of any effort to determine the error rate of Mr. Fasold's 
methodology for estimating land sale revenues after 1935. Tr., May 16, 2003, a.m., at 62:17-63:2 
(R. 
Fasold). In arriving at Mr. Fasold's methodology for estimating land sales revenues, Plaintiffs 
decided 
not to compile land sales documents. Tr., May 16, 2003, a.m., at 61:5-7 (R. Fasold). And again, 
Mr. 
Fasold's methodology for this model component has not been the subject of peer review by anyone 
other than Plaintiffs' paid consultants. Tr., May 16, 2003, a.m., at 62:8-16 (R. Fasold). 
235. Finally, the methodology behind "Other" revenue category in Plaintiffs' model 
(Plaintiffs' 
Revenue Model at 41 (Table 1); Fasold Report, at 8-9 (Pls.' Ex. 35)), succumbs to the same fate of 
insufficiency. In his report, Mr. Fasold admits that "[n]o reliable methodology has been found 
for 
determining revenues from annuities, water rights, settlements, judgments and per capita payments, 
rights-of-way, aggregates (construction materials) and any other unidentified categories." Fasold 
Report, at 8 (Pls.' Ex. 35). He then proceeds to value "Other" revenues as the difference between
revenues identified in the July 2002 Interior Department report to Congress "and the total of all 
other 
revenues identified by the Plaintiffs' experts." Id. at 8-9. In common parlance, the number is 
not an 
estimate but merely a "plug" figure a tautology of sorts. Insofar as Mr. Fasold concedes that 
"Other" 
revenue is not based on any reliable methodology, id. at 8, this Court cannot admit his opinion as 
to 
"Other" revenues under Daubert and Kumho Tire. 
236. In short, the evidence of record is insufficient to determine the reliability of Mr. 
Fasold's 
methodology and numerous components of Plaintiffs' Revenue Model. Federal Rule of Evidence 702 
permits a court to allow a qualified expert to testify if some scientific, technical or other 
specialized 
knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, 
but only "if 
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of 
reliable 
principles and methods, and (3) the witness has applied the principles and methods reliably to the 
fact 
of the case." Fed. R. Evid. 702 (emphasis added). 
237. The Supreme Court has made appropriate scrutiny and knowledge about an expert's 
methodology the sine qua non of "reliability." The absence of such a foundation makes proffered 
expert 
testimony conjectural in nature and insufficient to provide a basis for "a quick, final, and 
binding legal 
judgment often of great consequence about a particular set of events in the past." Daubert, 
509 
U.S. at 597. 
2. Plaintiffs' Plan Provides A Methodology For Calculating Damages 
Rather Than A Methodology For Conducting An Historical Accounting. 
238. Plaintiffs' Revenue Model is a disguised claim for alleged money damages as is evident, 
first, from Plaintiffs' own assertion that an accounting is impossible: "[T]he accounting owed by 
the 
United States government and ordered by this Court is impossible." Plaintiffs' Revenue Model at 3 
(Pls.' Ex. 50). With this principle of impossibility as its central premise, Plaintiffs' Revenue 
Model 
describes a method for calculating damages rather than providing the accounting required by the 
1994 
Act. 
239. Plaintiff's Revenue Model is not by their own admission a plan for conducting the 
accounting required under the 1994 Act and, thus, does not comply with the Court's Order of 
September 17, 2002, authorizing Plaintiffs to file their own plan for conducting the historical 
accounting. 
See, e.g., Tr., May 14, 2003, p.m., at 12:25-13:13 (R. Fasold) (stating that Plaintiffs' model 
will not 
produce a historical accounting for IIM account holders); Tr., May 29, p.m., at 37:4-13 (D. 
Duncan) 
(same); Tr., May 16, 2003, p.m., at 39:8-19 (R. Fasold) (stating that the final product of 
Plaintiffs' 
model will not be an historical accounting). Plaintiffs' Plan, therefore, is irrelevant and must 
be rejected. 
240. Plaintiffs' Revenue Model contains numerous references to alleged breaches of 
fiduciary duty by the United States in particular, mismanagement of the underlying IIM trust 
assets, 
and misappropriation of IIM trust funds that are traditional claims for money damages. For 
example, 
Plaintiffs allege 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." Plaintiffs' 
Revenue
Model at 12 (Pls.' Ex. 50). Similarly, they assert that "[i]ndividual Indian [t]rust [f]unds 
[h]ave [b]een 
[m]isappropriated." Id. at 10. Such claims of mismanagement of the underlying IIM trust assets 
and 
misappropriation of IIM trust funds are clearly claims for money damages, rather than relief which 
can 
be afforded under the APA, and are thus beyond this Court's jurisdiction. 
241. These claims also 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 insisted that "this action is not one to review the United 
States' 
management of the underlying trust assets" to preserve jurisdiction in this Court. Plaintiffs' 
Revised 
Memorandum of Points and Authorities in Support of Motion for Class Certification, at 6 (Jan. 14, 
1997) (emphasis added). 
242. Furthermore, in holding that this is an APA action to enforce the right to an accounting 
rather than an action for money damages, the Court made a point of striking the following 
allegations 
from Plaintiffs' Complaint: 
(1) '[T]he true totals would be far greater 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 law and prudence.' 
30 F. Supp. 2d at 40 n.18 (quoting Plaintiffs' Complaint) (internal citations omitted). 
243. Plaintiffs go further and supply the method for calculating such damages. Plaintiffs' 
Revenue Model is, in their own words, designed "to quantify the monies generated from individual 
Indian trust lands ('Allotted Lands')." Plaintiffs' Revenue Model at 39 (Pls.' Ex. 50). 
244. Rather than using IIM trust records to identify the transactions that passed through 
particular IIM accounts, Plaintiffs' Revenue Model purports to estimate 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. See id. at 53-55. In fact, in this discussion, Plaintiffs expressly rely upon excerpts 
from two 
damages treatises. Id. at 54-55 & Exs. 42, 43 (citing and quoting from 2 R. Dunn, Recovery of 
Damages for Lost Profits (5th ed. 1998), and P. Gaughan, Measuring Commercial Damages (2000)). 
245. 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. 
246. Instead, they devote a total of three short paragraphs of their fifty-five page filing 
to the 
all-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' Revenue Model at 52 (Pls.' Ex. 50). In short, 
rather than 
advancing a plan for accounting to individual IIM account holders, they assure the Court that 
unidentified experts will appear 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. 
247. Plaintiffs' experts Richard Fasold and Dwight Duncan confirmed that Plaintiffs' 
Revenue Model will not provide an historical accounting to IIM account holders. Tr., May 14, 
2003, 
p.m., at 12:25-13:13 (R. Fasold); Tr., May 16, 2003, p.m., at 39:8-19 (R. Fasold); Tr., May 29, 
p.m., 
at 37:4-13 (D. Duncan). Indeed, Mr. Fasold conceded that even if a disbursement rate was 
determined for IIM accounts, and Plaintiffs' Revenue Model was subsequently applied, the output 
would not generate an account statement for any IIM account holder, but would merely generate a 
total 
aggregate dollar amount that purportedly remains undisbursed. Tr., May 16, 2003, a.m., at 73:4-14 
(R. Fasold). Plaintiffs' Revenue Model does not even attempt to address disbursements. Tr., May 
14, 
2003, p.m., at 13:10-13, 14:15-15:2 (R. Fasold). 
3. Plaintiffs Do Not Have A Damages Claim in this Action 
248. This Court previously considered whether it had subject matter jurisdiction over 
Plaintiffs' suit and concluded that it did. Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998). 
In 
reaching this conclusion, the Court recognized the potential for confusion between Plaintiffs' 
purported 
claims for equitable relief, i.e., for an accounting, and a damages claim (which would have been 
beyond 
this Court's subject matter jurisdiction): 
In determining whether the United States has consented to be sued in a 
federal district court in this case, the crucial issue becomes whether the 
plaintiffs' requested retrospective remedy of an accounting is an 
equitable, specific claim, or whether it is simply a money damages claim 
in disguise. Given the allegations contained in the Complaint and, 
importantly, certain representations of the plaintiffs' counsel, the Court 
holds that the retrospective allegations of the Complaint seek solely an 
accounting. Thus, the plaintiffs do not seek money damages. 
Id. at 39 (emphasis added). 
249. Later, this Court reiterated its conclusion that it possessed subject matter 
jurisdiction to 
entertain Plaintiffs' claims. Cobell v. Babbitt, 91 F. Supp. 2d at 24 ("Plaintiffs have alleged 
various 
statutory violations, and, in substance, the focus of their claims is to enforce the statutory 
right to an 
accounting."). This Court has thus conclusively determined that Plaintiffs cannot pursue a 
damages 
claim in this action. 
4. Adoption of Plaintiffs' Revenue Model Would Divest this Court of 
Subject Matter Jurisdiction 
250. In its prior rulings, this Court made clear that it does not possess subject matter 
jurisdiction to entertain damages claims brought by Plaintiffs. See, e.g., Cobell v. Babbitt, 30 
F. Supp. 
2d at 39. Rather, through the Tucker Act, Congress expressly addressed subject matter 
jurisdiction as 
to damages claims: 
The United States Court of Federal Claims shall have jurisdiction to 
render judgment upon any claim against the United States founded 
either upon the Constitution, or any Act of Congress or any regulation 
of an executive department, or upon any express or implied contract 
with the United States, or for liquidated or unliquidated damages in 
cases not sounding in tort. 
28 U.S.C. 1491(a)(1) (2003). 
251. Ordering Interior to follow the damages methodology in Plaintiffs' Plan would be the 
equivalent of amending Plaintiffs' Complaint to include a damages claim. Adoption of Plaintiffs'
Revenue Model would thus divest this Court of jurisdiction and require transfer of the action to 
the 
Court of Federal Claims. Because Plaintiffs' Revenue Model is a model for a damages calculation 
in a 
case without a damages claim and before a Court with no jurisdiction to entertain one 
Plaintiffs' 
Revenue Model is not related to any justiciable claim in this action, and must be rejected. 
5. Plaintiffs' Plan Is Not An Accounting Plan And Is Fundamentally 
Flawed. 
252. Congress enacted the 1994 Act with full awareness that some trust records were 
missing or irretrievable, and thus compliance with the 1994 Act's accounting requirements cannot 
be 
dependent on access to each and every trust document that has ever existed. See Defendants' 
Proposed Conclusions of Law, at II..C.1.a., supra. Similarly, in its 2001 opinion, the D.C. 
Circuit 
was cognizant of Plaintiffs' allegations that underlying records for an accounting may be 
unavailable, but 
the court nonetheless adhered to the concept of an accounting: 
The government's broad duty to provide a complete historical 
accounting to IIM beneficiaries necessarily imposes substantial 
subsidiary duties on those government officials with responsibility for 
ensuring that an accounting can and will take place. In particular, it 
imposes obligations on those who administer the IIM trust lands and 
funds to, among other things, maintain and complete existing records, 
recover missing records where possible, and develop plans and 
procedures sufficient to ensure that all aspects of the accounting 
process are carried out. 
Cobell v. Norton, 240 F.3d 1081, 1105 (D.C. Cir. 2001). 
253. Plaintiffs' Revenue Model seeks to calculate damages through models and estimation 
techniques, and in so doing, notably disregards the direction of Congress, this Court, and the 
court of 
appeals that Defendants must complete an accounting. Plaintiffs' plan simply reflects their 
election to 
pursue damages, rather than the statutory right to an accounting. 
254. But whether or not Plaintiffs' Revenue Model is viewed as a claim for damages, it is not 
a plan for conducting the historical accounting required by the 1994 Act. If, as Plaintiffs 
allege, the 
historical accounting is impossible, and therefore Interior is unable to comply with the 1994 Act, 
Plaintiffs may not force Interior to adopt their Revenue Model in lieu of compliance with the 
statutory 
accounting requirements. "A frequently stated principle of statutory construction is that when 
legislation 
expressly provides a particular remedy or remedies, courts should not expand the coverage of the 
statute to subsume other remedies. 'When a statute limits a thing to be done in a particular mode, 
it 
includes the negative of any other mode.'" Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. 
Passengers, 414 U.S. 453, 458 (1974) (quoting Botany Worsted Mills v. United States, 278 U.S. 
282, 289 (1929)). 
255. The 1994 Act contains a very specific accounting requirement: Interior must "account 
for the daily and annual balance" of particular funds held in trust. 25 U.S.C.A. 4011(a). This 
Court 
has opined that "[a]ny accounting of funds necessarily involves examining past transactions and 
events 
that could effect [sic] the current balance," Cobell v. Norton, 226 F. Supp. 2d at 116 n.135, and 
has 
defined a trust accounting as "a detailed report provided by a trustee for a beneficiary 
describing the 
trustee's conduct during the relevant time period, including a description of each item of 
property within 
the trust corpus, all items of property received into or disbursed from the trust, all income 
earned by the
trust, and all expenses paid by the trust," Cobell v. Norton, 260 F. Supp. 2d at 123. 
256. Plaintiffs' Revenue Model will not enable Interior to account for the daily and annual 
balance of relevant funds, does not involve an examination of past transactions that could affect 
the 
current balance for any IIM account, and will not result in the provision of accounting statements 
to 
individual account holders. Inasmuch as Plaintiffs' Revenue Model cannot be viewed as a plan for 
bringing Interior into compliance with its statutory accounting obligation, it is not properly 
before the 
Court whether or not it is deemed a disguised damages claim. 
257. Furthermore, Plaintiffs' Revenue Model is based on the fundamentally flawed premise 
that, because gaps exist in the Indian trust records available to do an historical accounting, it 
is 
preferable to rely entirely on estimating techniques, rather than to use existing records to 
perform the 
accounting work and to rely on forensic accounting methods to address gaps in the records, as 
Interior 
plans. 
258. Plaintiffs not only fail to support their claim, in effect, that guesswork is 
preferable to 
Interior's document-based method, but admit that their Plan does not describe an accounting and 
thus 
by 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. 
259. Pursuant to the 1994 Act, Interior is obligated to "account for the daily and 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.A. 4011(a). 
Interior's 
Historical Accounting Plan entails gathering relevant and available trust records and using these 
records 
to verify the accuracy of the account activity in the various kinds of IIM accounts. Thus, 
Interior's 
Historical Accounting 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. 
260. In sharp contrast, Plaintiffs' Revenue Model relies entirely on various estimating 
techniques. 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 
selfevident, 
but it is also made very clearly by one of the main sources on which Plaintiffs rely: 
Paul Stuart, 
Nations Within A Nation, Historical Statistics of American Indians ("Stuart") (1987); see 
Plaintiffs' 
Revenue Model at 5 (Pls.' Ex. 50). The paragraph cited by Plaintiffs concludes with the following 
sentence, which they understandably 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 (internal quotation marks omitted). 
261. 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." Plaintiffs' Plan, at 39. Plaintiffs avoid relying on IIM 
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. 
262. Plaintiffs' method of calculating aggregate oil and gas royalties is representative of 
their 
plan's approach. First, for any given reservation, they "estimat[e] historical production 
volumes" of oil 
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 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 of oil and gas 
royalties on that 
reservation's allotted lands. 
263. Plaintiffs' basic methodology is fundamentally flawed. First, it 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 
percentage," thus assuming that rights to the resource are necessarily spread pro rata among all 
the 
reservation's landowners (individual allottees, the tribe, and others). This assumption is 
patently false. 
264. Second, 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 subsurface 
rights. For example, the 1919 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). 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. 
265. Third, Plaintiffs' Plan not only falsely assumes that rights to the proceeds from any 
given 
resource are necessarily spread pro rata among all the reservation's landowners, but also wrongly 
presumes that "historical royalty rates" provide a sound basis for estimating a reservation's 
total 
royalties from that resource. Consistent with the highly vague and imprecise nature of their 
entire 
Revenue Model, 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 et seq. (Indian Gas). 
266. In short, Plaintiffs' Revenue Model ignores legal, economic and historical reality and 
thus is unsuited to accomplish the accounting of "funds . . . deposited or invested," 25 U.S.C.A. 
4011(a), that Defendants owe to IIM trust account holders. Plaintiffs' Revenue Model 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 owe 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. 
267. Plaintiffs' Revenue Model 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 at 39 (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"). 
6. Plaintiffs' Plan Is Premised On The False Assumption That Insufficient 
IIM Trust Records Are Available To Undertake An Historical 
Accounting. 
268. Plaintiffs' argument that an historical accounting is impossible and that the Court must 
therefore adopt their plan hinges on their claim that the necessary IIM trust records simply do 
not exist. 
Accordingly, they devote approximately 70% of their plan (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's preservation and maintenance of 
trust 
records. That deficiencies exist simply does not demonstrate that the information needed to 
undertake 
a reliable historical accounting, as described in Interior's Historical Accounting Plan, is 
lacking. 
269. 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' 
Revenue Model at 16 (Pls.' Ex. 50). In support of this extraordinary assertion, Plaintiffs cite 
ten 
instances in which Defendants have reported document destruction to the Court. No doubt 
recognizing 
that ten cases in which particular sets of documents were destroyed fails to establish the 
destruction of 
the "majority" of all IIM 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 unquantifiable 
amounts of Trust records have been lost." Id. at 16 n.28. 
270. Interior acknowledges that some IIM 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 not establish that "the 
majority of 
source and related Trust documents have been destroyed." Furthermore, 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 is disingenuous. Id. 
at 18. As 
Plaintiffs are well aware, Interior has made substantial improvements since April 2002 in its 
trust 
records program. See Letter from Alan L. Balaran, Special Master, to Amalia D. Kessler, U.S. 
Department of Justice, at 2 (December 2, 2002) (Defs.' Ex. 161) (stating that Interior's Office of 
Trust 
Records "has undergone a dramatic improvement"). 
271. 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," Plaintiffs' Revenue Model, at 17 (Pls.' Ex. 50), is also unsubstantiated. 
Plaintiffs base this 
broad claim on a highly selective reading of a Report 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 IIM trust 
records, 
the Report's central thrust is that, while clear evidence of document destruction by Executive 
Branch 
agencies exists, little evidence exists that the destroyed documents included IIM trust records. 
See, 
e.g., Pls.' Ex. 96, at EY0002332 ("[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 such 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 
and individual Indian moneys reports in particular."), EY0002352 (stating that even after the 
passage of 
a 1934 statute creating the National Archives and repealing the 1889 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 Indian trust 
records."). 
272. Plaintiffs' assertion of wholesale destruction of IIM trust records is ultimately 
belied, 
however, by the simple fact that Interior has found sufficient records to commence the historical 
accounting set forth in their Plan. See Defendants' Proposed Findings of Fact, at I.B.4.b., 
I.B.4.c., 
supra. The experience of Interior and its contractors, including their experience with the named 
Plaintiffs' records, demonstrates that sufficient records are available to proceed with the 
historical 
accounting project. See id. at I.B.4.c., supra. 
273. In denying the Plaintiffs' pre-trial motion for partial summary judgment, the Court 
found 
that Plaintiffs had "failed to direct the Court to any evidence that, if uncontroverted, would 
entitle them
to a directed verdict that the amount of funds held in the IIM accounts cannot be ascertained 
because 
of the loss, destruction, and corruption of the trust records." Cobell v. Norton, 260 F. Supp. 2d 
at 
130. Plaintiffs also failed to satisfy this burden at trial. The evidence presented at the Phase 
1.5 trial 
establishes that sufficient records are available to proceed with the historical accounting work 
as 
described in Interior's Historical Accounting Plan. 
a. Plaintiffs' Argument That Properly Indorsed Checks And 
Signature Cards Are Required To Verify Disbursements Is Not 
Ripe And, In Any event, Is Unfounded. 
274. In attacking Interior's Historical Accounting Plan, Plaintiffs assume that a cancelled 
check and proof of proper indorsement is required to support a disbursement. See, e.g., Tr., July 
8, 
2003, a.m., at 43 (D. Gingold). Plaintiffs' argument presumes that Defendants will bear the 
burden of 
proving all disbursements from the IIM trust accounts, but such issues if relevant at all 
outside a 
damages context are premature at this stage of the litigation and not properly before the Court 
in the 
Phase 1.5 proceeding. 
275. Plaintiffs' argument disregards the law of negotiable instruments, which entitles the 
government to rely upon certain presumptions relevant to the amount of proof necessary for an 
adequate accounting. These presumptions may be overcome only on a disbursement-by-disbursement 
basis. 
276. For example, the government may presume that signatures on a check are valid. 
Federal regulations require an institution accepting a check from a person other than the payee to 
determine if that person is authorized and has the capacity to indorse and negotiate the check. 
31 
C.F.R. 240.11. When the check is presented to Treasury for payment, the presenting bank and the 
indorsers guarantee that all prior indorsements are genuine and authorized. 31 C.F.R. 240.5. 
Because of these duties and guarantees, evidence that a check was paid proves that the check was 
delivered and properly negotiated. There is no need to examine the indorsements a check cannot 
be 
negotiated without them, and the law presumes that indorsements are valid. 
277. Federal regulations on Treasury checks are consistent with provisions in the Uniform 
Commercial Code, which provides: 
In an action with respect to an instrument, the authenticity of, and 
authority to make, each signature on the instrument is admitted unless 
specifically denied in the pleadings. If the validity of a signature is 
denied in the pleadings, the burden of establishing validity is on the 
person claiming validity, but the signature is presumed to be authentic 
and authorized . . . . 
U.C.C. 3-308(a). The official comment to Section 3-308 explains that the presumption is based 
on 
the fact that forged or unauthorized signatures are very uncommon. 
278. The government may also presume that a properly mailed check was delivered. 
Hagner v. United States, 285 U.S. 427, 430 (1932). The presumption of delivery attaches when the 
government presents evidence of the procedures it regularly follows when addressing and mailing a 
check. See Godfrey v. United States, 997 F.2d 335 (7th Cir. 1993); In re East Coast Brokers and 
Packers, Inc., 961 F.2d 1543, 1545 (11th Cir. 1992); Capital Data Corp. v. Capital Nat'l Bank, 778 
F. Supp. 669, 675 (S.D.N.Y. 1991). 
279. Thus, evidence that a check was mailed and paid proves that the check was delivered 
and properly negotiated. There is no legal need to examine the indorsements because the law 
presumes 
that indorsements, if any, are valid. If the government does not have a copy of an indorsed 
check, it 
does not mean that the check was not appropriately delivered and paid. Tr., May 13, 2003, a.m., 
at 
104:13-105:14 (D. Hammond).
280. Plaintiffs' argument also disregards that, in assessing the reliability of a 
disbursement, a 
court may "take account of circumstantial evidence, which, if of sufficient weight, demonstrates 
the 
disbursement went for the stated purpose and was properly disbursed." Red Lake Band v. United 
States, 17 Cl. Ct. 362, 407 (1989) (citations omitted). Many courts have held that vouchers and 
other 
documentation are sufficient to establish the disbursement of Indian trust funds. See, e.g., 
White 
Mountain Apache Tribe of Arizona v. United States, 9 Cl. Ct. 1, 12 (1985) (ordering defendants to 
provide disbursement vouchers to prove disbursements in response to plaintiffs' request for a 
supplemental accounting); Blackfeet and Gros Ventre Tribes v. United States, 32 Ind. Cl. Comm. 65, 
87 (1973) (requiring the government to produce "vouchers, reports, or other proof as may be 
available" in order to credit itself in an accounting with the delivery of goods and services to 
beneficiaries); see also Pueblo of San Ildefonso v. United States, 35 Fed. Cl. 777, 792 (1996) 
(providing that precise correspondence between the disbursements claimed and the supporting 
documentation is not required, but finding insufficient proof of disbursements due to a tenuous 
connection between vouchers and disbursements). 
281. Interior's Accounting Standards Manual (Defs.' Ex. 59) contains guidelines that the 
OHTA will use in performing the historical accounting. The Manual provides that a negotiated 
check, 
an electronic fund transfer, or, if the payee is not the account holder, an authorization for 
disbursement 
are the preferred ("Level One") documents for verifying disbursements. See Interior's Accounting 
Standards Manual at 2.0-1 (May 9, 2003) (Defs.' Ex. 59). If these primary documents are not 
available, the Accounting Standards Manual provides that secondary ("Level Two") documents, such 
as checks without proof of negotiation, disbursement schedules, journal vouchers and check 
registers, 
may be used to verify a disbursement, but instructs accountants "to use professional judgment to 
determine the sufficiency of the Level Two documents for meeting the purposes of the Historical 
Accounting." Id. at 2.0-1 n.1. These guidelines are appropriate, and accord with relevant law. 
F. Interior's Fiduciary Obligations Compliance Plan Will Enable Interior to 
Comply Fully with its Accounting Obligations Under the 1994 Act. 
282. As discussed above, the Court only has jurisdiction to review Interior's Fiduciary 
Obligations Compliance Plan for the purpose of determining whether it is so defective that it will 
necessarily delay Interior Defendants' progress towards complying with their obligation to 
account, as 
defined by the 1994 Act. Interior's Fiduciary Obligations Compliance Plan describes an approach 
that 
will bring Interior into full compliance with its obligation to account for funds it holds in 
trust for 
individual Indians. Thus, by definition, it is not so defective as necessarily to cause delay. 
283. In developing their Fiduciary Obligations Compliance Plan, the Interior Defendants 
necessarily took into account not only the requirements of the 1994 Act as interpreted by this 
Court, 
but also co-existing statutory obligations, budgetary constraints imposed by Congress, and the 
obligation to consult with tribes and consider tribal sovereignty and the priorities to be 
accorded to 
tribal rights of self-governance and self-determination. 
284. Interior's Fiduciary Obligations Compliance Plan represents Interior's considered and 
expert judgment as trustee of the best means of harmonizing disparate and, at times, competing 
statutory, congressional, presidential, tribal, and trust interests and obligations while 
accomplishing the 
trust reform necessary to bring itself into compliance with the 1994 Act's accounting 
obligations. 
Interior's Fiduciary Obligations Compliance Plan minimizes further delay by anticipating and, to 
the 
extent possible, resolving potential issues associated with the statutory, congressional, tribal, 
and trust 
framework within which trust reform must be accomplished. 
285. Interior's approach is based on the recommendations of outside business experts, who
first studied what has not worked in the past and then developed and recommended an organized, 
systematic process that stands a realistic chance of success. It is a process that is already 
well 
underway, and one about which the Interior Defendants have informed Plaintiffs, the Court, and 
Congress. The approach has current funding to continue. In sum, Interior's Fiduciary Obligations 
Compliance Plan describes a realistic approach to trust reform to bring Interior into full 
compliance with 
its accounting obligations under the 1994 Act. And it has a realistic chance of funding. 
286. Interior's past attempts to reform trust management were not "sufficiently designed and 
integrated to produce . . . material and long-term improvement in performance." Fiduciary 
Obligations 
Compliance Plan at 6 (Defs.' Ex. 1). In rethinking its approach to trust fund reform in light of 
that 
experience, Interior rejected "the impulse to offer quick fixes." Id. 
287. Based on Interior's experience and given the complexity of the trust framework and 
related obligations, Interior decided to systematically and methodically examine existing trust 
processes 
to determine what works and what does not, to select best practices, to revise those practices 
that are 
not, and to continue monitoring the trust practices put in place to confirm that they remain best 
practices. This business-oriented approach to trust reform, whereby Interior's Fiduciary 
Obligations 
Compliance Plan proposes a thorough understanding of all trust fund management processes before 
reforming them, comports with the guidance provided by Congress "that an assessment of 
organization, 
staffing, and operations should come first, to provide a basis for planning," that "all elements 
of 
[Interior's] trust fund financial systems should be considered," that "all trust fund policies and 
procedures should be reviewed and revised, as appropriate," and that "the framework and a 
strategic 
plan need to fully address actions necessary to ensure that [Interior] has a reliable trust fund 
accounting 
system." "Misplaced Trust Report" at 53-54 (Defs.' Ex. 178). 
288. Defendants' reform initiatives are taking place in the context of the Indian Self- 
Determination Act and Education Assistance Act of 1975, as amended, which confirmed the major 
shift in United States policy from a guardian-ward type relationship with tribes to a governmenttogovernment 
relationship and that clarified congressional intent that tribes manage not only their 
own trust 
assets but also have a role in the management of assets of their individual citizens. See Indian 
Self- 
Determination & Education Assistance Act of 1975, 25 U.S.C. 450 et seq. (Defs.' Ex. 31); see 
also 
Executive Order No. 13175, "Consultation and Coordination with Indian Tribal Governments," 65 
Fed. Reg. 67249 (Defs.' Ex. 30); Annual Funding Agreements under the Tribal Self-Governance Act 
Amendments, 25 C.F.R. Pt. 1000 (Defs.' Ex. 32); 512 DM 2 at 2.1-2.4 (articulating Interior 
policy 
toward tribes) (Defs.' Ex. 29). Tribes are thus not only trust beneficiaries but also 
governmental entities 
with jurisdiction over tribal and individual lands (and the assets thereon) and providers of trust 
services, 
including trust services directly related to individual Indian trust accounts. As a result, trust 
reform 
considerations in this case must include the extent to which tribal management and administration 
will be 
affected and tribal interests will be implicated. These considerations reflect the existing 
statutory 
framework within which the trusts must operate. 
289. The time frames for Interior to accomplish specific reform-related tasks, see, e.g., 
Fiduciary Obligations Compliance Plan at 50-51, 54, 58, 62, 76, 77, 83, 84, 94 (Defs.' Ex. 1), 
were
developed after taking into account Interior's experience, advice from outside experts, statutory 
constraints, existing budget and appropriation requirements, the need for consultation with 
Congress 
and tribes, and Interior's considered judgment of the time required to implement large-scale 
institutional 
changes. 
290. Interior's restructuring effort is based on the business principle that trust operations 
should be handled, to the extent possible, separately from Interior's non-trust operations. See 
Fiduciary 
Obligations Compliance Plan at 5 (Defs.' Ex. 1); see also, e.g., Eleventh Quarterly Report at 29- 
30, 
33, 37-38 (Defs.' Ex. 45). Unlike private trusts and banks that separate their trust and nontrust 
operations, however, Interior's ability to restructure its trust operations is subject to existing 
statutory 
requirements and constraints, including budgetary considerations as dictated by congressional 
appropriations. 
291. Interior's Fiduciary Obligations Compliance Plan utilizes the existing statutory trust 
organization mandated by Congress. In the 1994 Act, Congress created the Office of the Special 
Trustee for American Indians to "provide for more effective management of, and accountability for 
the 
proper discharge of, the Secretary's trust responsibilities to Indian tribes and individual 
Indians," to 
"ensure that reform of such practices in the Department is carried out in a unified manner," and 
to 
"ensure the implementation of all reforms necessary for the proper discharge of the Secretary's 
trust 
responsibilities to Indian tribes and individual Indians." 1994 Act 301. 
292. The Interior Defendants, as they provide trust services, proceed with trust reform, and 
develop their Plan, are no different from any other government entity engaged in official 
operations 
they are bound by appropriations law. "The use of any government resources whether salaries, 
employees, paper, or buildings to accomplish [a task] would entail government expenditure. The 
government cannot make expenditures, and therefore cannot act, other than by appropriation." EDC 
v. 
Babbitt, 73 F.3d 867, 871-72 (9th Cir. 1995) (because of appropriations rider, "lack of available 
appropriated funds prevents the Secretary from complying with the [Endangered Species] Act."). 
The 
Court as well as the Executive Branch is bound by the constraints imposed by the congressional 
control 
of the appropriations process. OPM v. Richmond, 496 U.S. 414, 425 (1990); see also 31 U.S.C. 
1341 (Defs.' Ex. 33) (generally prohibiting government officers and employees from entering into a 
contract or incurring an obligation before an appropriation is made and from making or authorizing 
expenditures that exceed existing appropriations), id. at 1342 (Defs.' Ex. 33) (generally 
prohibiting 
government officers and employees from accepting "voluntary" services). 
293. Any major restructuring including creating a new organization within Interior, 
changing 
or displacing existing functions, or undertaking extensive and costly reform processes requires 
Congressional coordination. The continuing and active role of Congress in Interior's trust 
management 
and administration, and thus in its ability to reform trust management, is reflected in, for 
example, 
frequent congressional hearings, and in exchanges between Interior and members of Congress. 
Interior 
sought and obtained approval from the congressional appropriations committees for the 
reprogramming 
of existing appropriations necessary to fund in the short term the reorganization envisioned under 
the 
trust management plan. Fiduciary Obligations Compliance Plan at 82 (Defs.' Ex. 1). 
294. Whether under common law trust standards or some other operable standards, trust
reform initiatives must be considered in light of what a similarly situated trustee would be able 
to 
accomplish. Absent Congressional action, a receiver, a monitor, the Court, and any one else is 
subject 
to the same legislative and budgetary constraints as Interior. Whatever Interior, the Court, or 
Plaintiffs 
might think of existing statutory and budgetary constraints, they exist and cannot be ignored or 
eliminated. Neither Interior nor the Court can appropriate funds or bypass Congress. 
295. Even if the Court is cautious about accepting Interior's assertion that this trust 
reform 
initiative, unlike past ones, will result in an operational system, the Court cannot ignore the 
Executive 
Branch's discretion, as trustee, to determine how best to carry out its trust function. The fact 
that a 
subsequent administration might opt for a different approach is part of the nature of the 
Executive 
Branch. 
1. IIM Trust Account Administration Standards 
296. Interior Defendants' Fiduciary Obligations Compliance Plan complies with this Court's 
Order that their plan "shall describe, in detail, the standards by which they intend to administer 
the IIM 
trust accounts, and how their proposed actions would bring them into compliance with those 
standards." Cobell v. Norton, 226 F. Supp. 2d 1, 162 (D.D.C. 2002), vacated in part by No. 02- 
5374, 2003 WL 21673009 (D.C. Cir. July 18, 2003). By limiting this requirement to standards for 
administration of accounts, the Order and the resultant Plan provisions are consistent with the 
scope of 
the relief sought in the complaint and the duty declared by the Court, i.e., to account, pursuant 
to the 
1994 Act, for funds currently held in IIM trust accounts. 
297. Plaintiffs' own expert on trust standards, Richard Fitzgerald, opined that the Secretary 
of the Interior should look first to the statutory responsibilities applicable to the 
administration of the 
trust. Tr., May 8, 2003, p.m., at 60:5-8. On this point, no relevant disagreement exists between 
the 
opinions of Plaintiffs' trust standards expert, Mr. Fitzgerald, and defendants' trust standards 
expert, 
Professor Langbein. No reason exists to reject the uncontroverted testimony of these experts. 
Interior's Plan describes in detail the applicable statutory responsibilities, and Plaintiffs have 
not brought 
to the Court's attention any that the Plan has omitted or inadequately described. 
298. While Plaintiffs appear to argue that Interior's Plan fails to place sufficient emphasis 
on 
common-law principles, they have not shown that the common law would impose, in regard to trust 
funds accounting, anything more than or different from the statutes Interior identifies in its 
Plan. Plaintiffs 
have stated that the 1994 Act requirements are fully consistent with common law accounting 
requirements. To the extent that principles from the common law of trusts inform, or even govern, 
administration of IIM trust accounts, Mr. Fitzgerald opined that, when read in conjunction with 
the 
Secretary's trust principles and other Department publications, the Plan allows Interior to 
fulfill 
common-law trust duties, such as the duty of loyalty. Tr., May 12, 2003, a.m., at 8:19-10:17. 
Moreover, in the final analysis, the prudence norm of the common law of trusts would require that 
the 
principles Plaintiffs espouse adjust for the uniqueness of the individual Indian trust and the coexisting 
statutory obligations Interior must satisfy. 
a. Many Factors Differentiate the Individual Indian Trust From 
Private Trusts 
299. The individual Indian trust is a "unique animal." Tr., June 3, 2003, p.m., at 72:22 (J.
Langbein). Due to the individual Indian trust's unusual nature, the standard of care that would 
apply to 
the trustee presents "an absolutely unique situation" and one that is "completely new." Tr., June 
2, 
2003, p.m., at 48:3-5 (J. Langbein). 
300. It would be inappropriate to equate the individual Indian trust with a private trust. 
"[T]he IIM trust bears remarkable differences" from a private trust. Tr., June 2, 2003, p.m., at 
58:15- 
16 (J. Langbein). It is "preposterous" to contend otherwise. Tr., June 2, 2003, p.m., at 71:21 
(J. 
Langbein). The large number of differences between the individual Indian trust and an ordinary 
private 
trust include the following: 
301. First, federal statutes set forth the individual Indian trust's terms. Tr., June 2, 
2003, 
p.m., at 59:8-12 (J. Langbein). Also, many federal statutes, e.g., the Freedom of Information 
Act, 
govern the federal agency-trustee but not the private trustee. Tr., May 12, 2003, p.m., at 76:22- 
77:7 
(R. Fitzgerald). 
302. Second, a government agency serves as the trustee. Tr., June 2, 2003, p.m., at 61:16- 
20 (J. Langbein). This results in unique limitations and obligations on the trustee, such as: 
civil service 
rules that can limit personnel hiring and firing decisions; fixed pay and salary grades that can 
limit 
recruitment; and requirements to deposit funds in the Treasury that potentially lower investment 
yields. 
303. Third, the individual Indian trust assets are not diversified (the trust is concentrated 
in 
real estate holdings). Tr., June 2, 2003, p.m., at 63:17-66:25 (J. Langbein). By comparison, the 
duty 
of prudence prevailing in the private sector would require diversification. Tr., June 2, 2003, 
a.m., at 
52:3-7 (J. Langbein); Tr., June 2, 2003, p.m., at 65:21-66:4 (J. Langbein). 
304. Fourth, Congress funds the individual Indian trust's administration. Tr., June 2, 2003, 
p.m., at 67:3-7 (J. Langbein). Private trustees usually charge fees to cover the cost of 
administering the 
trust. Tr., June 2, 2003, p.m., at 67:3-25 (J. Langbein). Here, trust administration is 
dependent upon 
Congress. Tr., June 2, 2003, p.m., at 67:9-25 (J. Langbein). 
305. Fifth, the individual Indian trust has exceptional longevity, Tr., June 2, 2003, p.m., 
at 
68:11-22 (J. Langbein), which leads to problems such as a large number of accounts that simply 
do 
not occur in the private sector. Tr., June 2, 2003, p.m., at 68:11-70:15 (J. Langbein). The 
sheer 
number of account holders for the individual Indian trust is "staggering." Tr., June 2, 2003, 
p.m., at 
69:16 (J. Langbein). By comparison, the average duration of trusts at one private trust company 
was 
around 15 years. Tr., June 2, 2003, p.m., at 68:16-69:1 (J. Langbein). 
306. Sixth, the individual Indian trust is not regulated by shareholders or an outside 
agency. 
Thus, no external influence disciplines this trust. Tr., June 2, 2003, p.m., at 70:16-71:11 (J. 
Langbein). 
307. Seventh, the trustee here may not resign from the trust. Tr., June 2, 2003, p.m., at 
72:14-17 (J. Langbein). 
308. Eighth, the trust beneficiary the allottee is allowed to use and manage the trust 
property, e.g., pursuant to "direct pay" leases and contracts. Tr., June 2, 2003, p.m., at 72:18- 
74:9 (J.
Langbein). One "never see[s] such a thing in a private trust administration." Tr., June 2, 2003, 
p.m., at 
74:2-3 (J. Langbein). 
309. Ninth, the individual Indian trust engages with sovereign tribes to serve as contract 
agents for individual Indian trust administration. Tr., June 2, 2003, p.m., at 75:1-18 (J. 
Langbein). This 
difference is particularly unusual; it "would be most extraordinary to find any trust instrument 
any 
effort by the settlor to limit the purveyors of services to the trust." Tr., June 2, 2003, p.m., 
at 76:9-11 
(J. Langbein). 
310. Because of these many differences, one cannot simply graft private standards onto the 
individual Indian trust. "[P]laintiffs may [not] simply claim that they are the beneficiaries of 
a trust 
relationship with the United States and therefore invoke all of the rights that a common law trust 
entails." 
Cobell v. Babbitt, 91 F. Supp. 2d at 29. The standards applicable to Interior's operation of the 
trust, 
as set forth in the Fiduciary Obligations Compliance Plan, are statutory, supplemented by other 
sources, including common law, when the statutory guidance is not sufficient. Interior's Plan at 
13-14 
(Defs.' Ex. 1); Tr., June 25, 2003, p.m., at 49:10-50:25 (R. Swimmer); Tr., June 26, 2003, p.m., 
at 
61:23-62:25 (R. Swimmer). 
b. Statutes Function as the Trust Instrument in the Case of the 
Individual Indian Trust 
311. Congress is the functional equivalent of settlor of the individual Indian trust and the 
Executive Branch is the trustee-delegate. See Expert Report of Professor Langbein at 6 (Defs.' 
Ex. 
37). Acts of Congress are the trust instruments which "establish a fiduciary relationship and 
define the 
contours of the United States' fiduciary responsibilities." United States v. Mitchell, 463 U.S. 
206, 224 
(1983) (Mitchell II). "[I]t is the statutes and regulations that create and define the 
enforceable trust 
relationship." Cobell v. Babbitt, 91 F. Supp. 2d at 30. The Secretary of the Interior has 
limited 
authority to set trust standards because they must come primarily from Congress. Tr., June 25, 
2003, 
p.m., at 54:24-55:8 (R. Swimmer). 
312. It is not uncommon for a trust instrument to be subject to amendment by the settlor. 
Tr., June 2, 2003, p.m., at 61:8-11 (J. Langbein). Congress, as settlor, retains the right to 
amend the 
trust instrument by further enactments. In the case of the individual Indian trust, enactment by 
Congress 
of other statutes and laws, including appropriations measures that affect the ability of the 
trustee 
delegate to carry out prescribed duties, operate as amendments to the trust instrument. Professor 
Langbein explained that "if Congress passes a budget appropriation that gives you inadequate funds 
to 
carry out something that Congress has earlier said you should carry out, that is the same thing as 
if 
Congress says we hereby amend the trust to order you not to carry out the earlier duty." Tr., June 
2, 
2003, p.m., at 59:25-60:4. 
c. Common Law Trust Standards are Default Standards that May 
Apply When No Statute Governs Or Affects the Trust Issue In 
Question 
313. For the individual Indian trust, "Congress is the settlor, and the terms are imbedded in
statute, and those terms prevail over the trust default law" cited by the Plaintiffs. Tr., June 2, 
2003, 
p.m., at 99:20-22 (J. Langbein). Common law duties may apply "whenever you don't have a statutory 
responsibility to apply to the trust." Tr., June 30, 2003, a.m., at 56:25-57:25 (R. Swimmer). 
For 
example, the Restatement of Trusts "is a body of law that applies in the absence of more 
particular 
directions from the settlor in the trust instrument." Tr., June 2, 2003, p.m., at 41:13-15 (J. 
Langbein). 
With respect to Interior's obligation to account for IIM funds, section 102 of the 1994 Act, which 
specifies in detail the funds to be accounted for and the information to be provided to 
beneficiaries, 
provides more particular directions than the Restatement, which merely recites a general duty "to 
keep 
and render clear and accurate accounts with respect to the administration of the trust." Compare 
25 
U.S.C.A. 4011 with Restatement (Second) of Trusts 172 (1959). 
314. The common law of trusts is default law which must yield to any contrary or more 
particular terms set forth in the trust instrument in this instance, Acts of Congress that 
defendants 
are obliged to obey. See Expert Report of Professor Langbein at 5-7 (Defs.' Ex. 37). The 
statutory 
obligations work like the terms of the trust instrument in the law of private trusts. Id. at 6. 
The Uniform 
Trust Code provides that "[t]he terms of a trust prevail over any provision of" the common law 
codified 
therein, subject to enumerated exceptions not relevant here. Expert Report of Professor Langbein 
at 5 
(quoting Unif. Trust Code 105(b) (2000)) (Defs.' Ex. 37); see also Unif. Prudent Investor Act of 
1994 1(b) ("The prudent investor rule, a default rule, may be expanded, restricted, eliminated, 
or 
otherwise altered by the provisions of a trust"). The Court must look to the statute or 
regulation 
establishing the trust relationship to determine the nature of the specific obligations owed, 
rather than 
simply applying all of the common-law trust duties. See, e.g., White Mountain Apache Tribe v. 
United 
States, 123 S. Ct. 1126, 1133 (2003) (citing Mitchell II, 463 U.S. at 224-26); see also Cherokee 
Nation of Oklahoma v. United States, 21 Cl. Ct. 565, 573 (1990) (the relationship between the 
United 
States and Indians "is not comparable to a private trust relationship"). 
d. Common Law Standards Would Adjust to the Distinctive 
Characteristics of the Individual Indian Trust 
315. Under common law, two fundamental standards applicable to trustees are the duty of 
loyalty and the duty of prudence. Tr., June 2, 2003, p.m., at 41:16-42:11 (J. Langbein). How 
these 
duties actually apply in practice, however, is determined by reference to the trust instrument, 
the 
specific circumstances attending the trust, and applicable law. See, e.g., Tr., June 2, 2003, 
p.m., at 
41:16-42:11, 47:16-22, 51:14-18, 52:22-24, 60:21-61:3,78:22-79:1 (J. Langbein). 
316. Common-law or "default" trustee duties can be modified or even waived. See, e.g., 
Tr., June 2, 2003, p.m., at 50:23-51:13 (J. Langbein). "[E]ven the loyalty rule, which is the 
most 
fundamental rule of trust law, is waivable by the settlor. . . ." Tr., June 2, 2003, p.m., at 
50:25-51:1 (J. 
Langbein); see also id. at 52:24 (the "instrument itself may alter the prudence norm"). 
317. The duty of prudence requires a trustee to act with "such care and skill as a man of 
ordinary prudence would exercise in dealing with his own property . . . ." Restatement (Second) of 
Trusts 174 (1959). This "prudence norm" underlies most of the common law duties. Expert Report
of Professor Langbein at 6 (Defs.' Ex. 37). The prudence norm of trust law, however, is the 
standard 
of care of a reasonable person similarly situated. Id. Thus, the prudence norm for Interior's 
administration of the individual Indian trust must take into account both "the distinctive 
circumstances of 
this trust" and "the budgetary, institutional, and operational constraints under which this 
trustee must 
operate." Expert Report of Professor Langbein at 6-7 (Defs.' Ex. 37).
G. The Court Must Reject Plaintiffs' Compliance Plan Together with Applicable 
Trust Standards 
318. In stark contrast to Interior's Fiduciary Obligations Compliance Plan, the Plaintiffs' 
Compliance Plan provides no systematic, detailed guidance regarding the specific actions to 
achieve the 
trust reform necessary for compliance with Defendants' accounting obligations under the 1994 Act. 
Plaintiffs' Plan simply does not "fully address actions necessary to ensure that [Interior] has a 
reliable 
trust fund accounting system." "Misplaced Trust Report" at 54 (Defs.' Ex. 178). Plaintiffs' Plan 
perhaps describes the skeletal outline of a legislative proposal, but it is neither realistic nor 
lawful under 
existing law. 
319. At best, Plaintiffs' Compliance Plan imposes hopelessly unrealistic deadlines on new 
personnel in new offices, provides no guidance to those personnel regarding the tasks assigned to 
them, 
and reveals an astonishing lack of familiarity with the trust-related processes and the measures 
necessary to reform them. At worst, Plaintiffs' Compliance Plan fails to address the complexities 
of the 
Interior Defendants' relationship with Congress, tribes, and account holders, and utterly ignores 
the 
Interior Defendants' coexisting obligations, including statutes, Executive Orders, tribal 
consultation, and 
the annual appropriations process. See, e.g., Plaintiffs' Plan at 33 (Pls.' Ex. 51) ("immediately 
appoint 
new and independent trust administration management solely to administer the Individual Indian 
Trust") 
(emphasis omitted), id. at 42 ("Segregate administration of IIM trust records from tribal and 
other DOI 
records," because "divergent interests of individual Indian trust beneficiaries and tribal leaders 
require 
the complete separation of trust administration.") 
320. Even if the Plaintiffs' Compliance Plan were not so legally defective, it is nonetheless 
unacceptable because the additional time and effort required to address and resolve just the 
unanswered questions arising from the small subset of alleged trust obligations that the 
Plaintiffs 
concentrate on would "necessarily delay rather than accelerate the ultimate provision of an 
adequate 
accounting." Cobell, 240 F.3d at 1110. 
321. The Plaintiffs' Compliance Plan, with its piecemeal and non-detailed approach, reflects 
not only a failure to learn from Interior's experience with trust reform but also a failure to 
heed the clear 
congressional guidance that a plan is fatally flawed when it proposes, inter alia, "hir[ing] 
additional staff . 
. . without first analyzing how these staffing changes might impact on an overall strategic plan," 
failing to 
consider "whether the short-term corrective actions will be consistent with short- and long-term 
corrective actions developed for the strategic plan," omitting "key elements of a strategic plan," 
and 
neglecting to "plan for reviewing the current trust financial management systems and procedures 
even 
though such studies are necessary to support appropriate action." "Misplaced Trust Report" at 53- 
54 
(Defs.' Ex. 178). The Plaintiffs thus fail to propose "a resolute action plan necessary to solve 
the 
structural problems that have besieged the financial management of the Indian trust fund for 
decades 
and provide a meaningful blueprint for hard-nosed application of sound management practices." Id. 
at 
54. 
322. Notwithstanding this Court's prior ruling that "Plaintiffs cannot simply announce that this 
is a 'trust case' and therefore conclude that the government owes all typical trust duties under 
the 
common law," Cobell, 52 F. Supp. 2d at 27 n.15, that is precisely the premise of the Plaintiffs' 
Compliance Plan. Their Plan begins not with the statute under which they sought relief, but with 
a
recitation of various common law "[t]rustee [s]tandards and [d]uties." See Plaintiffs' Plan at 16- 
25 
(Pls.' Ex. 51). Although Plaintiffs assert and, indeed, concede, that those trust standards are 
"consonant with the precepts of" the 1994 Act, id. at 29, they then proceed to propose reform 
actions 
and measure them solely against the common law trust standards rather than against the specific 
statutory requirements associated with performance of the accounting, id. at 32-47. 
323. The Court has forbidden this approach. As this Court has already recognized and 
reiterated, standard trust law duties cannot be imported wholesale and applied to Interior simply 
because the IIM funds for which the accounting is sought are held in trust. See Cobell, 91 F. 
Supp. 2d 
at 29 ("it does not follow . . . that plaintiffs may simply claim that they are the beneficiaries 
of a trust 
relationship with the United States and therefore invoke all of the rights that a common law trust 
entails." 
(discussing case law)); see also Cobell, 226 F. Supp. 2d at 151 n.161 ("the federal government's 
fiduciary obligations may not be coextensive with those of an ordinary trustee"); Cobell, 52 F. 
Supp. 
2d at 27 n.15. 
324. In addressing trust reform, the Plaintiffs and the Court, like the Interior Defendants, 
are 
bound by existing statutory and budgetary requirements. By proposing a new, but only vaguely 
defined 
trust organization, separating the management and administration of IIM trust operations from that 
for 
tribal trust, and requiring significant but unfunded expenditures to accomplish this new trust 
operation, 
the Plaintiffs' Compliance Plan violates existing statutory and budgetary constraints. 
325. Any major restructuring such as that envisioned by either of the parties' compliance 
plans, and particularly the Plaintiffs' proposal to create and staff a trust organization and to 
separate 
trust functions requires Congressional approval, either from Congress as a whole should existing 
statutes need to be changed, or from Congressional appropriators should existing appropriated 
funds 
need to be substantially reprogrammed. Furthermore, under the Anti-Deficiency Act, 31 U.S.C. 
1341, 1342 (Defs.' Ex. 33), government agencies can neither retain personnel nor enter into 
contracts with third parties without having the necessary funding in place. 
326. Unlike a private trustee, the Defendants cannot commit to expenditures that have not 
been authorized and cannot impose structures or practices that are inconsistent with Congressional 
guidance provided in statutes and budgets, including the budget justifications and program 
descriptions 
on which Congress relies in enacting appropriations. The Defendants (like the Plaintiffs and the 
Court) 
cannot disregard Congressional direction regarding trust-related activities and must take the need 
for 
Congressional approval into account in all aspects of planning and budgeting for all significant 
undertakings, trust related or otherwise. The Plaintiffs' Compliance Plan reflects no such 
considerations 
and acknowledges no such realities. 
327. Plaintiffs' radical approach to trust reform trust reform without regard to the 
framework of applicable laws and Congressional direction in trust-related decisions is a far cry 
from 
the "middle ground" chosen by Congress when it restructured and reorganized trust operations in 
the 
1994 Act. See 91 F. Supp. 2d at 41 (discussing "middle ground" chosen by Congress).
1. Plaintiffs' Plan Conflicts with the Statute Creating the Office of the 
Special Trustee 
328. In Title III of the 1994 Act, Congress created the Office of the Special Trustee for 
American Indians to "provide for more effective management of, and accountability for the proper 
discharge of, the Secretary's trust responsibilities to Indian tribes and individual Indians," and 
"ensure 
that reform of such practices in the Department is carried out in a unified manner," and "ensure 
the 
implementation of all reforms necessary for the proper discharge of the Secretary's trust 
responsibilities 
to Indian Tribes and individual Indians." 1994 Act 301. Furthermore, the Special Trustee 
"shall 
ensure continuation of the Office until all reforms identified in the strategic plan have been 
implemented 
to the satisfaction of the Special Trustee," at which point written notice must be given to the 
Secretary 
and Congress before the Office is terminated. 1994 Act 302(c)(1). OST still exists, and the 
Plaintiffs' Compliance Plan therefore violates these statutory requirements. 
329. The Plaintiffs propose the "immediate[] appoint[ment of] new and independent trust 
administration management solely to administer the Individual Indian Trust," including a new 
"Trust 
Manager and staff . . . to bring the individual Indians trust into compliance." Plaintiffs' Plan 
at 33-34, 
37 (emphasis omitted) (Pls.' Ex. 51). No statutory authorization for creation of this new and 
independent "trust administration management" is cited, no organizational structure is provided, 
and no 
explanation is given regarding the fate of the Office of the Special Trustee. Under the 
Plaintiffs' view of 
"conflict," id. at 33, 42, 44, OST would necessarily be conflicted out of continuing to provide 
trust 
oversight because it is not independent but instead reports to the Secretary, see Cobell, 91 F. 
Supp. 2d 
at 52 ("If Congress truly wanted an independent trustee to oversee trust management . . . then 
Congress surely would have explicitly restricted the Secretary's powers over the Special Trustee 
and 
his office."), because it is implicated in this litigation, and because it oversees and makes 
decisions that 
affect both individual and tribal trusts. 
330. In drafting the 1994 Act, Congress could have chosen an organizational approach 
different from the current trust structure; instead, it chose to retain the existing structure 
under the 
Secretary, with the addition of the Office of the Special Trustee. "[T]he Office of the Special 
Trustee, 
and its congressionally created structure, was Congress's considered judgment as to how [to] help 
try 
to solve the IIM administration problems." Cobell, 52 F. Supp. 2d at 29. Congress's "considered 
judgment" cannot be ignored. 
2. Plaintiffs' Plan Conflicts with Congressionally Authorized Joint Trust 
Administration 
331. The Plaintiffs' Plan requires "[s]egregate[d] administration of IIM trust records from 
tribal and other DOI records" and "the separation of trust assets from all other tribal and DOI 
assets." 
Plaintiffs' Plan at 42, 44 (Pls.' Ex. 51). Congress has long known that individual and tribal 
trust assets 
are being administered together, because Interior each year submits budget requests to Congress 
which 
make the joint administration clear. 
332. Congress could have chosen to separate the management and administration of 
individual and tribal trust assets, but it did not do so and has not, to date, indicated a belief that such a 
separation is necessary. Indeed, Congress explicitly vested responsibility in the Office of the 
Special 
Trustee for oversight of all trust assets, whether tribal or individual. 1994 Act 301. The 
continuing 
joint administration of individual and tribal trusts is consistent with congressional indications 
of a strong 
preference to avoid duplicating programs and program functions. Neither the Plaintiffs nor this 
Court 
can alter the existing trust structure that Congress created or act in anticipation of future 
congressional 
action. 
3. Plaintiffs' Plan Conflicts with Interior's Personnel Obligations 
333. A Court order requiring Interior's trust-related hiring decisions to be made according 
to 
the specific requirements and criteria articulated by the Plaintiffs for "unconflicted" trust 
personnel would 
violate the authority of the President, and, by delegation, the Secretary, to make hiring 
decisions on 
behalf of the Executive Branch. 
334. To the extent that a Court order requiring the Interior Defendants to appoint a "Chief 
Legal Officer" would, in accordance with the Plaintiffs' Plan, contemplate vesting responsibility 
for all 
trust-related litigation in that new position, Plaintiffs' Plan at 35, 38-39, 44-45 (Pls.' Ex. 
51), that 
responsibility would violate statutes governing litigating authority, which is vested in the 
Department of 
Justice. See 28 U.S.C. 516-519; see also 5 U.S.C. 3106 (generally barring the head of an 
Executive department from "employ[ing] an attorney or counsel for the conduct of litigation" and 
requiring referral to the Department of Justice). 
4. Plaintiffs' Plan Does Not Address Tribal Consultation Or Compliance 
with Existing Law and Policy Regarding Tribal Involvement in Trust 
Operations 
335. The requirement that Interior "[s]egregate administration of IIM trust records from 
tribal 
and other DOI records" because "divergent interests of individual Indian trust beneficiaries and 
tribal 
leaders require the complete separation of trust administration," Plaintiffs' Plan at 42 (Pls.' 
Ex. 51), 
interferes with sovereign relations between Interior and tribes, particularly with regard to those 
tribes 
that have assumed some of the Secretary's responsibilities related to the administration and 
management 
of tribal and individual trust accounts. To the extent that the Plaintiffs' Plan precludes tribes 
from 
entering into such arrangements in the future, it violates the Congressional mandate to encourage 
tribes 
to play increasingly active roles in the administration and management of trust assets for both 
the tribe 
and individual members of the tribe. See 25 U.S.C. 450 et seq. (Defs.' Ex. 31); Executive 
Order 
No. 13175 (Defs.' Ex. 30); 25 C.F.R. Pt. 1000 (Defs.' Ex. 32). 
336. Furthermore, notwithstanding the Plaintiffs' willingness to focus on the process by 
which 
Interior developed its Fiduciary Obligations Compliance Plan, the Plaintiffs' own plan does not 
address 
the issue of tribal consultation or assert that its contents were in any way a result of tribal 
consultation. 
5. Plaintiffs' Plan Fails to Provide for a Thorough Assessment of, or 
Familiarization of New Personnel with, Existing Trust Business
Practices Before Requiring New Personnel to Accomplish Tasks that 
Will Require Detailed Knowledge of Existing Trust Operations 
337. Although the Plaintiffs' Plan requires the retention of a number of new "unconflicted" 
personnel not previously connected with trust operations at Interior, it provides no guidance to 
that new 
staff regarding how and where this "new and independent trust administration management" intended 
"solely to administer the Individual Indian Trust" would fit into Interior's overall 
organizational structure. 
See Plaintiffs' Plan at 33 35 (emphasis omitted) (Pls.' Ex. 51). The Plaintiffs' Plan simply 
lists the 
results that those personnel are supposed to achieve without in any way describing the process 
necessary to accomplish those results, without providing sufficient time to understand the current 
processes and personnel, without addressing the possibility that some of the goals and timetables 
for 
achieving those results may not be feasible, and without contemplating any process similar to 
Interior's 
"As-Is" and "To-Be" assessments of core trust business processes. In essence, Plaintiffs' Plan 
proposes 
a quantum leap to a fully functional trust system without any intermediate steps. 
338. The Plaintiffs propose a quick fix without a sufficient foundation, an approach that 
Interior has rejected as unworkable and ill-advised and that Congress has likewise condemned, see 
"Misplaced Trust Report" at 53-54 (Defs.' Ex. 178). Notwithstanding Plaintiffs' desire for quick 
trust 
reform, a system that has experienced well-documented difficulties for over one hundred years 
cannot 
be corrected by a Court order to fix problem A in 60 days and problem B in 180 days, Plaintiffs' 
Plan 
at 38-40, 42, 43 (Pls.' Ex. 51), without building into the process the sufficient time and 
planning 
necessary to develop a thorough understanding of problem A and problem B and to comply with other 
applicable statutory, congressional, and governmental requirements. Interior's Fiduciary 
Obligations 
Compliance Plan provides that time; Plaintiffs' Plan does not. 
339. Plaintiffs' Compliance Plan, by leaping into trust reform without a methodical and 
systematic approach, will "necessarily delay rather than accelerate the ultimate provision of an 
adequate 
accounting," Cobell, 240 F.3d at 1110, when, inevitably, deadlines are missed and unanticipated 
but 
otherwise foreseeable obstacles are encountered. 
6. Plaintiffs' Plan Raises Issues Beyond the Scope of Their Case 
340. Plaintiffs propose a number of actions that relate to the management and administration 
of trust assets, including actions intended to prevent "trespass, wasting, or improper 
exploitation" of 
trust assets, Plaintiffs' Plan at 39 (Pls.' Ex. 51), and actions "to make trust property and all 
other trust 
assets productive, to enforce claims on behalf of individual Indian trust beneficiaries, and to 
take 
affirmative action to preserve trust property," id. at 44-45. These particular actions are beyond 
the 
scope of this case and the authority of this Court because they relate to the general management 
and 
administration of trust assets and natural resources rather than to compliance with the accounting 
obligations under the 1994 Act. 
341. Finally, because Plaintiffs assert that an historical accounting of the kind required by 
the 
1994 Act and ordered by the Court is not possible, by definition their Compliance Plan would not 
result 
in compliance with the 1994 Act accounting requirements. 
H. The Court Lacks Authority To Enter A "Structural Injunction" Or Appoint A
Receiver. 
1. The Injunctive Relief Contemplated By The Court Would Exceed 
Constitutional Limits On The Judicial Authority. 
342. In its September 17, 2002 Order, the Court scheduled the present "Phase 1.5 trial," 
stating that it would "encompass additional remedies with respect to the fixing the system portion 
of this 
case and approving an approach to conducting a historical accounting of the IIM trust accounts." 
Cobell v. Norton, 226 F. Supp. 2d at 162. The court specified that it "will grant further 
injunctive relief 
to make the defendants correct the breaches of trust declared by the Court and stipulated to by 
the 
defendants back in 1999." Id. at 146-47. Specifically, the Court stated that it "plans on 
entering a 
structural injunction in this case." Id. at 146 n.154. The Court stated that the goal of such 
injunctions is 
"'not merely to halt a single wrongful practice, but to halt a group of wrongful practices by 
restructuring 
a social institution such as a mental hospital, school, or prison.'" Id. (quoting Dobbs, Law of 
Remedies 
(2d ed.) at 7.4(4)). 
343. As set forth at length in Section III.A., supra, this Court's authority to review 
Interior's 
plans is constrained by well-established principles governing judicial review of agency action and 
the 
separation of powers concerns that underlie these principles. In light of these principles, and 
inasmuch 
as the judicially enforceable duty at issue is the production of account statements to individual 
IIM 
account holders, judicial review prior to final agency action must be limited to, at most, 
determining 
whether Interior's January 6 plans (or subsequent plans) describes steps so defective that they 
would 
necessarily delay rather than accelerate the provision of an adequate accounting. 
344. The injunctive relief contemplated by the Court would exceed constitutional 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. Id. Such judicial intrusion into 
the internal 
affairs of an Executive Branch agency "simply is not permissible under our adversarial system of 
justice 
and our constitutional system of separated powers." Cobell v. Norton, 2003 WL 21673009, at *12. 2. The Constitution Does Not Permit Appointment Of A Receiver Over 
The IIM Trust. 
345. As injunctive relief specifying how Defendants must fulfill their legal obligations is 
impermissible, judicial assumption of the Secretary of the Interior's trust duties through the 
appointment 
of a receiver is plainly prohibited. Nonetheless, the Court concluded in its September 17, 2002 
opinion 
that it was empowered to appoint such a receiver in this case, see Cobell v. Norton, 226 F. Supp. 
at 
135-47, and advised the parties at trial that it was actively considering such an appointment. 
See Tr., 
May 6, 2003, a.m., at 39:13-23 ("[A]ppointment of a receiver . . . is one of th[e] options I'm 
going to 
entertain."). 
346. The testimony presented at the Phase 1.5 trial demonstrates that Interior has made 
significant progress in laying the groundwork for long-term trust reform, and has begun 
implementation 
of a reasonable and credible plan to complete the historical accounting work in approximately five 
years. Appointment of a receiver over the IIM trust not only is factually unwarranted, but is 
legally 
proscribed by the Constitution. 
a. The Appointments Clause. 
347. The Appointments Clause provides: 
[The President] shall nominate, and by and with the Advice and 
Consent of the Senate, shall appoint Ambassadors, other public 
Ministers and Consuls, Judges of the supreme Court, and all other 
Officers of the United States, whose Appointments are not herein 
otherwise provided for, and which shall be established by Law: but the 
Congress may by Law vest the Appointment of such inferior Officers, 
as they think proper, in the President alone, in the Courts of Law, or in 
the Heads of Departments. 
U.S. Const. art. II, 2, cl. 2. 
348. "[T]he Appointments Clause of Article II is more than a matter of 'etiquette or 
protocol;' it is among the significant structural safeguards of the constitutional scheme." 
Edmond v. 
United States, 520 U.S. 651, 659 (1997). Under this clause, courts of law can never appoint 
principal 
officers, and can appoint inferior officers only when Congress has expressly vested them with 
power to 
make such appointments. 
349. "[A]ny appointee exercising significant authority pursuant to the laws of the United 
States is an "Officer of the United States" and must, therefore, be appointed in the manner 
prescribed 
by [the Appointments Clause]." Buckley v. Valeo, 424 U.S. 1, 126 (1976). That a receiver with 
the 
authority to manage the IIM trust system and to develop and implement trust reform would 
"exercis[e] 
significant authority pursuant to the laws of the United States," id., and, therefore, be an 
officer either 
principal or inferior within the meaning of the Appointments Clause is plain. 
350. As this Court has recognized, the Secretary of the Interior is a principal officer. 
Cobell 
v. Norton, 226 F. Supp. 2d at 140. In its September 17, 2002 contempt opinion, this Court stated 
that a court-appointed receiver would be an inferior officer because his or her work would be 
"'directed and supervised at some level by others who were appointed by Presidential nomination,'" 
namely this Court. Id. (quoting Edmond, 520 U.S. at 662-63). 
351. The necessary implication of the Court's decisions is that the Court itself would be 
assuming the duties of an Executive Branch Cabinet Secretary, an action that cannot be reconciled 
with
separation of powers principles, as discussed below. In any event, if the Court is correct that a 
receiver would be an inferior officer, the Court may not appoint a receiver unless "Congress [has] 
by 
Law vest[ed] the Appointment . . . in the Courts of Law." U.S. Const. art. II, 2, cl. 2. 
352. Congress has not vested appointment of a receiver to administer and manage the IIM 
trust system in the courts of law; indeed, it has not granted the courts authority to appoint 
receivers to 
assume operation of any Executive Branch agencies. Cf. 28 U.S.C. 1361 (authorizing mandamus 
relief against officers and agencies but not the appointment of receivers to assume their duties). 
Because Congress has enacted no statute vesting the appointment of a receiver over an Executive 
Branch agency in the courts of law, the appointment of a receiver to administer and manage the IIM 
trust system would be impermissible under the Appointments Clause of the Constitution. 
353. This Court has already opined that the Appointments Clause does not bar appointment 
of a receiver because cases in which courts have appointed receivers over state and local (or 
private) 
institutions "demonstrate that federal district courts are vested with the power to appoint a 
receiver to 
ensure compliance with its orders." Cobell v. Norton, 226 F. Supp. 2d at 140-41; see also id. at 
135- 
37. That courts may exercise their equitable powers to appoint receivers in cases not implicating 
the 
United States Constitution, however, has no bearing on whether the appointment of a receiver to 
assume the trust responsibilities of the Secretary of the Interior comports with the Appointments 
Clause. 
354. The Appointments Clause does not limit a district court's exercise of equitable power 
to appoint a receiver to perform the duties and functions of a state or local officer, and federal 
separation of powers concerns are not implicated when a state or local institution is placed in 
receivership. The appointment of a receiver to assume the Secretary of the Interior's IIM trust 
responsibilities would violate the Appointments Clause as well as the separation of powers 
doctrine 
inherent in Articles I, II, and III. 
355. This Court further stated in its September 17, 2002 contempt ruling that "the Supreme 
Court itself has recognized that 'courts have long participated in the appointment of court 
officials such 
as United States commissioners or magistrates.'" Id. at 141 (quoting Morrison v. Olson, 487 U.S. 
654, 679 n.16 (1988)). But, in those instances, the Supreme Court cited the express statutory 
authority vesting such appointments in the courts of law. See Morrison, 487 U.S. at 679 n.16 
(citing 
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931) ("The Act of May 28, 1896, 29 Stat. 
184, . . . authorized each district court to appoint United States commissioners. . . .") and 28 
U.S.C. 
631(a) ("The judges of each United States district court . . . shall appoint United States 
magistrates. . . 
.")). No similar statutory authority vests appointment of a receiver to assume the Secretary of 
the 
Interior's trust responsibilities in the courts of law. 
356. This Court has also opined that, "in addition to its inherent equitable powers (which 
the 
act creating the Court in the first instance conferred upon it), the All Writs Act provides this 
Court with 
the power to 'issue all writs necessary or appropriate in aid of [its] respective jurisdiction[] 
and 
agreeable to the usages and principles of law.'" Cobell v. Norton, 226 F. Supp. 2d at 141 
(quoting 28 
U.S.C. 1651(a)). However, while, as a general rule, "'the scope of a district court's equitable 
powers to remedy past wrongs is broad,'" Cobell v. Norton, 240 F.3d 1081, 1108 (D.C. Cir. 2001) 
(quoting Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971)), a court's equitable 
powers may not be exercised in contravention of the Constitution. INS v. Pangilinan, 486 U.S. 
875, 
883 (1988) ("'[C]ourts of equity can no more disregard statutory and constitutional requirements 
and
provisions than can courts of law.'" (quoting Hedges v. Dixon County, 150 U.S. 182, 192 (1893)). 
357. A federal court may not, pursuant to its general equitable powers, appoint "Officers of 
the United States," U.S. Const. art. II, 2, cl. 2, because the Appointments Clause provides the 
exclusive mechanism by which such officers may be appointed, and permits courts to appoint them 
only 
when authorized by an act of Congress. Buckley v. Valeo, 424 U.S. at 124-26. 
358. Neither the All Writs Act nor "the act creating the Court in the first instance," vests 
appointment of receivers to manage Executive Branch agencies in the courts of law. If a federal 
court's 
equitable powers permitted it to circumvent the Appointments Clause, no real obstacle would 
preclude 
a federal court from replacing Cabinet-level officers with individuals more pleasing to the court 
under 
the guise of an exercise of equitable power. 
359. As the D.C. Circuit recently held in this case, "[a] judicial claim to an 'inherent 
power' 
is not to be indulged lightly, lest it excuse overreaching '[t]he judicial Power' actually granted 
to federal 
courts by Article III of the Constitution of the United States, and the customs and usages that 
inform the 
meaning of that phrase." Cobell v. Norton, 2003 WL 21673009, at *10. Absent congressional 
authorization (and then only in the case of inferior officers) which Congress has not provided 
this 
Court is prohibited by the Appointments Clause from exercising even equitable or remedial powers 
to 
appoint a receiver to administer and manage the IIM trust system. 
360. Moreover, even Congress could not authorize appointment of a receiver in this case. A 
statute vesting the Court with the power to appoint a receiver would be valid only to the extent 
that 
exercise of this appointment power would not be "incongruous" with the judicial power. See Ex 
parte 
Siebold, 100 U.S. 371, 398 (1879). Congress cannot vest appointment power in the courts when such 
power would be inconsistent with Article III and the proper judicial role. See id. 
361. As discussed in more detail below in the context of separation of powers concerns, 
appointing a receiver through whom the Court would manage the IIM trust system would far transcend 
the proper judicial role. Accordingly, even if Congress had authorized the Court to appoint a 
receiver 
to manage the IIM trust system, the statute would impermissibly exceed constitutional limits on 
"incongruous" interbranch appointments. 
362. In its September 17, 2002 opinion, this Court stated that cases in which courts 
appointed receivers over "prisons, schools, mental hospitals, water treatment plants, and child 
welfare 
centers belie" the argument that the Appointments Clause would not permit Congress to authorize 
appointment of a receiver in this case because it would be incongruous with the judicial power. 
Cobell 
v. Norton, 226 F. Supp. 2d at 141. The Court stated that appointment of receivers over public and 
private institutions to "remedy illegal conduct . . . clearly falls within the ambit of courts' 
everyday duty 
to decide cases and controversies." Id. 
363. None of the cases cited by the Court, however, concerned appointment of a receiver to 
assume the responsibilities of an agency of the co-equal Executive Branch. As noted above, a 
court 
may not exercise its equitable power to craft remedies that contravene the Constitution. INS v. 
Pangilinan, 486 U.S. at 883 ("'[C]ourts of equity can no more disregard statutory and 
constitutional 
requirements and provisions than can courts of law.'" (quoting Hedges v. Dixon County, 150 U.S. at 
192)). By appointing a receiver, the Court would be doing much more than crafting a remedy 
(which, 
as a general matter, is congruent with the judicial power) - it would be assuming from the 
Executive 
Branch the responsibility for managing the IIM trust (which is not congruent with the judicial power, as 
explained more fully below). 
364. The constitutional proscription on judicial appointments that are incongruous with the 
judicial power is not implicated when a court appoints a receiver over a state or local 
institution, as in 
the cases cited by the Court. 
b. Separation Of Powers. 
365. Even if the Appointments Clause did not preclude appointment of a receiver, such an 
appointment would contravene the separation of powers doctrine by permitting the court to intrude 
on 
functions entrusted to the other branches of the federal government and would exceed the Court's 
authority under Article III of the Constitution. 
366. The doctrine of separation of powers seeks to prevent the aggrandizement of power in 
any one of the three branches of government. Morrison v. Olson, 487 U.S. 654, 693 (1988) ("[T]he 
system of separated powers and checks and balances established in the Constitution was regarded by 
the Framers as 'a self-executing safeguard against the encroachment or aggrandizement of one 
branch 
at the expense of the other.'" (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976))). Although no 
reference to "separation of powers" is found in the text of the Constitution, the doctrine of 
separation of 
powers is enforced both as a general principle and through the application of several specific 
constitutional provisions, including the Appointments Clause and Articles I, II and III of the 
Constitution. 
367. Articles I , II, and III establish Congress, the President and the judiciary and invest 
them, respectively, with authority to exercise the legislative, executive, and judicial powers of 
the United 
States. See U.S. Const. art. I, 1 ("All legislative Powers herein granted shall be vested in a 
Congress 
of the United States . . . ."); U.S. Const. art. II, 1, cl. 1 ("The executive Power shall be 
vested in a 
President of the United States of America."); U.S. Const. art. III, 1 ("The judicial Power of 
the 
United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress 
may 
from time to time ordain and establish."). 
368. Concern with maintaining separation of powers profoundly shaped the drafting of the 
Constitution and of Articles I, II, and III in particular. See Mistretta v. United States, 488 
U.S. 361, 
380 (1989) ("Madison, in writing about the principle of separated powers [in The Federalist No. 
47], 
said: 'No political truth is certainly of greater intrinsic value or is stamped with the 
authority of more 
enlightened patrons of liberty.'"); INS v. Chadha, 462 U.S. 919, 951 (1983) ("The Constitution 
sought 
to divide the delegated powers of the new federal government into three defined categories, 
legislative, 
executive and judicial, to assure, as nearly as possible, that each Branch of government would 
confine 
itself to its assigned responsibility."). 
369. The Supreme Court has consistently reaffirmed "the central judgment of the Framers of 
the Constitution that, within our political scheme, the separation of governmental powers into 
three 
coordinate Branches is essential to the preservation of liberty." Mistretta, 488 U.S. at 380. 
370. "Although not 'hermetically' sealed from one another, the powers delegated to the three 
Branches are functionally identifiable," and no branch of government may exercise authority that 
interferes with or usurps that delegated by the Constitution to one of its sister branches. 
Chadha, 462 
U.S. at 951 (citation omitted). Thus, general separation of powers concerns, as well as Articles 
I, II, 
and III, prohibit the judiciary from undertaking duties delegated by the Constitution to the 
Executive
Branch. 
371. Article II confers on the President the duty to "take Care that the Laws be faithfully 
executed." U.S. Const. art. II, 3. This "broad power" is "conspicuously not granted to 
[courts] by 
the Constitution." INS v. Legalization Assistance Project of L.A. County Fed'n of Labor, 510 U.S. 
1301, 1304-05 (O'Connor, Circuit Justice 1993). "[E]xecutive or administrative duties of a 
nonjudicial 
nature may not be imposed on judges holding office under Art[icle] III of the Constitution." 
Buckley, 
424 U.S. at 123. This broad prohibition upon the courts' exercise of executive or administrative 
duties 
of a nonjudicial nature is designed "to maintain the separation between the Judiciary and the 
other 
branches of the Federal Government by ensuring that judges do not encroach upon executive or 
legislative authority or undertake tasks that are more properly accomplished by those branches." 
Morrison, 487 U.S. at 680-81. 
372. Thus, this Court's authority to appoint a receiver to manage an Executive Branch 
agency is limited by the federal courts' constitutionally prescribed role. The Constitution 
limits the 
authority of federal courts to "[t]he judicial power of the United States." U.S. Const. Art. III, 
1. 
"According to express provision of Article III, the judicial power of the United States is limited 
to 
'Cases' and 'Controversies.'" Mistretta, 488 U.S. at 385; see also Young v. United States ex rel. 
Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring) ("The judicial power is 
the 
power to decide, in accordance with law, who should prevail in a case or controversy."). The key 
inquiry is whether the Court would exceed its Article III role "to adjudicate cases and 
controversies as 
to claims of infringement of individual rights" and intrude upon the duty entrusted to the 
Executive of 
"'tak[ing] Care that the Laws be faithfully executed.'" Lujan v. Defenders of Wildlife, 504 U.S. 
555, 
577 (1992) (quoting U.S. Const. art. II, 3); see Morrison, 487 U.S. at 677-78 & n.15 ("In 
several 
cases, the Court has indicated that Article III 'judicial Power' does not extend to duties that 
are more 
properly performed by the Executive Branch."). By appointing a receiver over the IIM trust, the 
Court 
clearly would exceed its role. 
373. In the rare cases in which the Supreme Court has upheld the judiciary's assumption of 
nonadjudicatory functions against a separation of powers or Article III challenge, it has 
emphasized that 
it was doing so only because the judiciary was not encroaching upon the constitutionally delegated 
functions of another branch, and the nonadjudicatory functions assumed by the judiciary were 
closely 
related to the mission of the judiciary. 
374. In Mistretta v. United States, 488 U.S. at 361, for example, the Court held that 
Congress's creation within the judiciary of a Sentencing Commission to promulgate binding 
sentencing 
guidelines was not prohibited by the separation of powers doctrine because "Congress may delegate 
to 
the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another 
Branch and that are appropriate to the central mission of the Judiciary." Id. at 388. The Court 
noted 
that sentencing is a field in which the Judicial Branch has significant special knowledge and 
expertise, id. 
at 396, and in which the Executive Branch had never exercised the kind of authority vested in the 
Commission. Id. at 387 n.14. Particularly significant to the Court was that the Commission is an 
independent agency "not controlled by or accountable to members of the Judicial Branch." Id. at 
393. The Court noted that the President's relationship to the Commission was "functionally no 
different" than 
if the Commission had been located outside the judicial branch because Congress had empowered the 
President to appoint and remove Commission members. Id. at 387 n.14. Thus, the Court concluded 
that the statute did not aggrandize the authority of the Judicial Branch or deprive the Executive 
Branch 
of a power it once possessed. Id. at 395. 
375. In Morrison v. Olson, 487 U.S. at 654, the Court offered similar reasons for upholding 
against a separation of powers challenge a statute authorizing a Special Division of judges to 
appoint 
and oversee an independent counsel. The Court held that the statute gave the Executive Branch 
sufficient control over the independent counsel to ensure that the President was able to perform 
his 
constitutionally assigned duties inasmuch as (1) the Attorney General had the power to remove the 
independent counsel for good cause; (2) no independent counsel could be appointed without a 
specific 
request by the Attorney General; and (3) a decision by the Attorney General not to request 
appointment of an independent counsel was unreviewable. Id. at 696. The Court suggested strongly 
that its decision would have been different had "the power to remove an executive official . . . 
been 
completely stripped from the President, thus providing no means for the President to ensure the 
'faithful 
execution' of the laws." Id. at 692. Moreover, the Court determined that "the functions that the 
Special Division is empowered to perform are not inherently 'Executive,'" but generally passive 
(e.g., 
receiving reports) or, if requiring the exercise of judgment or discretion, "essentially 
ministerial," and 
"directly analogous" to functions performed by the judiciary in other contexts. Id. at 681. The 
Court 
noted that: 
in light of judicial experience with prosecutors in criminal cases, it could 
be said that courts are especially well qualified to appoint prosecutors. 
This is not a case in which judges are given power to appoint an 
officer in an area in which they have no special knowledge or 
expertise, as in, for example, a statute authorizing the courts to 
appoint officials in the Department of Agriculture or the Federal 
Energy Regulatory Commission. 
Id. at 676 n.13 (emphasis added). 
376. In contrast, court appointment of a receiver to assume the duties of the Secretary 
relating to the administration and management of assets of individual Indian trust beneficiaries 
would 
encroach impermissibly on the constitutionally appointed function of the Executive Branch. A 
courtappointed 
receiver is "an officer of the court" and has "no powers except such as are conferred 
upon 
him by the order of his appointment." Booth v. Clark, 58 U.S. (17 How.) 322, 331 (1854); accord 
Sterling v. Stewart, 158 F.3d 1199, 1201 n.2 (11th Cir. 1998). Such a receiver would actively 
exercise executive functions functions that are in no sense "passive" or "ministerial" or 
analogous to 
functions ordinarily performed by the judiciary. The core constitutional function of the 
Executive 
Branch is to see that the laws are "faithfully executed," U.S. Const. art. II, 3, and Congress 
has 
expressly entrusted the Secretary with the duty to "execute" the laws governing Indian trusts. 
That 
these executive and administrative duties have a fiduciary component in no sense transforms them 
into 
duties that are adjudicatory in nature. The D.C. Circuit recently made clear in this case that 
even the 
Court's appointment of a Court Monitor "entailed a license to intrude into the internal affairs of 
the
Department, which simply is not permissible under our adversarial system of justice and our 
constitutional system of separated powers." Cobell v. Norton, 2003 WL 21673009, at *12. 
377. Nor is the administration and management of the IIM trust system an area in which 
federal courts have any more special knowledge or expertise than they have with regard to the 
administration of programs in the Department of Agriculture or the Federal Energy Regulatory 
Commission. See Morrison, 487 U.S. at 676 n.13. The Secretary is not an ordinary trustee; her 
trust 
duties include establishing policies and practices for myriad specialized functions such as trust 
land 
management and income collection; appraisal of trust lands; review of land transfers; oversight of 
grazing leases, timber leases, timber sales, oil and gas production, mineral production, and 
rights of 
way; and banking functions. Cobell v. Babbitt, 91 F. Supp. 2d at 9-11. If the Court removes 
these 
duties from the Executive in order to perform them itself through a receiver, the Court 
necessarily will 
be enmeshed in making discretionary decisions about the management and administration of the IIM 
trust system and about trust reform that are at the heart of the Executive Branch's 
constitutionally 
delegated duty. 
378. Moreover, a receiver would be controlled by the Court and accountable only to the 
Court, stripping the President of the power to remove an executive official and removing any 
"means 
for the President to ensure the 'faithful execution' of the laws." Morrison, 487 U.S. at 692; see 
Mistretta, 488 U.S. at 393-94; cf. Bowsher v. Synar, 478 U.S. 714, 726 (1986) (holding that 
Congress may not exercise removal power over an officer performing executive functions); Myers v. 
United States, 272 U.S. 52, 63-64 (1926) (holding that Congress cannot divest the President of 
power 
to remove an Executive Branch officer who he was initially authorized to appoint). 
379. If a receiver is appointed in this case, executive functions currently performed by the 
Executive Branch in accordance with the Constitution and congressional directives would be removed 
from the Executive Branch and assumed by the Judicial Branch. That would exceed the bounds of 
this 
Court's Article III authority, intrude upon the duty to "take Care that the Laws be faithfully 
executed" 
entrusted to the Executive by Article II, and contravene the doctrine of separation of powers. 
See 
Lujan, 504 U.S. at 577; cf. Printz v. United States, 521 U.S. 898, 922-23 (1997) (holding that the 
Brady Act's transference of federal identity-checking authority to local law enforcement officials 
deprived the President of "meaningful . . . control" and thereby violated Article II's dictate 
that the 
President "take Care that the Laws be faithfully executed."). 
380. In addition, the Court's appointment of a receiver would trench on the prerogatives of 
Congress, in which the Constitution vests "[a]ll legislative Powers." U.S. Const. art. I, 1. 
As this 
Court recognized, Congress has expressly vested day-to-day supervision of trust reform in the 
Secretary, with the assistance of the Special Trustee. 25 U.S.C. 162a(d) & 4011; see Cobell v. 
Babbitt, 91 F. Supp. 2d at 13 (stating that the American Indian Trust Fund Management Reform Act 
of 
1994 "recognized and codified the trust duties of the Secretary of the Interior, as the primary 
trusteedelegate 
of the United States, toward the IIM trust."). 
381. Congress introduced significant reform in the administration of Indian trust funds in 
the 
1994 Reform Act. For example, the Act created the Office of Special Trustee for American Indians 
in 
the Department of the Interior, headed by a Special Trustee who reports directly to the Secretary. 
25 
U.S.C. 4042(a). Notably, Congress implemented reforms that would improve the performance of 
the agencies within the Department of the Interior; it conspicuously did not shift trust duties to 
another
agency, much less to the courts. See H.R. Rep. No. 103-778, at 8-9 (1994), reprinted in 1994 
U.S.C.C.A.N. 3467, 3467-68 (explaining that the purpose of the bill was to "bring about better 
accountability and management of Indian trust funds by the Department of the Interior," that the 
bill 
sets out the Secretary of [the] Interior's responsibilities," and that the "Special Trustee would 
oversee and ensure that the reforms take place throughout the Department of [the] Interior." 
(emphasis added)). It is amply clear that Congress did not intend to allow the Secretary to be 
stripped 
of her responsibility over Indian trust funds; rather, Congress ensured that the ultimate 
fiduciary trust 
responsibility remain with the Secretary. 
382. Courts "have no authority to substitute [their] views for those expressed by Congress in 
a duly enacted statute." Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 626 (1978); see also 
Northwest Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO, 451 U.S. 77, 97 (1981) 
("[T]he authority to construe a statute is fundamentally different from the authority to fashion a 
new rule 
or to provide a new remedy which Congress has decided not to adopt."); Tennessee Valley Auth. v. 
Hill, 437 U.S. 153, 194-95 (1978) ("While '[i]t is emphatically the province and duty of the 
judicial 
department to say what the law is,' . . . it is equally and emphatically the exclusive 
province of the 
Congress not only to formulate legislative policies and mandate programs and projects, but also to 
establish their relative priority for the Nation." (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 
137, 
177 (1803)). This Court acknowledged as much in its June 7, 1999 opinion: 
Congress has clearly provided that the government is to act as trustee 
for the IIM monies. This court does not have the power to encroach 
upon that decision, as such action would violate the doctrine of 
separation of powers. Congress has created this trust, and only 
Congress may alter it. This court's duty, as in all other cases, is to 
interpret and judicially enforce these laws. 
Cobell v. Babbitt, 52 F. Supp. 2d 11, 28 n.17 (D.D.C. 1999). Congress provided that the Secretary 
is to act as trustee-delegate of the government, and the Court does not have the power to encroach 
upon that decision by replacing her with a judicially appointed officer. 
383. In its September 17, 2002 opinion, this Court stated that separation of powers 
considerations would not bar appointment of a receiver over the IIM trust. Cobell v. Norton, 226 
F. 
Supp. 2d at 141-45. To the contrary, the Court suggested that the separation of powers doctrine 
compels the empowerment of federal courts to place Executive Branch agencies into receivership: 
"[C]ourts' power to appoint a receiver over public institutions is an important structural 
safeguard in our 
tripartite constitutional system of government because it prevents the executive branch from 
placing 
itself over the judiciary and the legislature." Id. at 142. However, the Court's reasoning in 
support of 
this conclusion was flawed. 
384. In its September 17, 2002 opinion, the Court relied frequently on the proposition that 
appointment of a receiver would not be inconsistent with the Court's Article III power because the 
Court "would still only be deciding, as it does in numerous other cases pending before it, what 
relief is 
necessary to remedy illegal conduct by the defendants," and "the cases . . . in which federal 
district 
courts appointed a receiver over a state agency demonstrate that courts can, consistent with 
Article III, 
grant such relief." Cobell v. Norton, 226 F. Supp. 2d at 143; see also id. at 143-44. 
385. However, as explained above, by appointing a receiver over the IIM trust, the Court 
would not just be imposing an equitable remedy (which, as noted above, cannot be done in 
contravention of the Constitution), but would be assuming from the Executive Branch the 
responsibility 
for managing the IIM trust, a function that is incompatible with the proper judicial role. See 
Morrison,
487 U.S. at 677-78 & n.15 ("In several cases, the Court has indicated that Article III 'judicial 
Power' 
does not extend to duties that are more properly performed by the Executive Branch."). 
386. Contrary to the Court's belief that cases in which courts appoint receivers over state 
and local institutions "provide an important starting point for assessing this Court's power under 
Article 
III, and its equitable power to remedy illegal conduct by defendants," Cobell v. Norton, 226 F. 
Supp. 
2d at 145, such cases do not implicate federal separation of powers concerns. 
387. Similarly, the Court returned repeatedly to the proposition that "[c]ourts do not 
appoint 
receivers over executive branch agencies or officials to usurp the power of the executive 
branch[;] [t]o 
the contrary, receiverships are only imposed as equitable relief after a particular executive 
official has 
demonstrated that she will not comply with the less intrusive remedies already granted by the 
court." 
Id. at 141; see also id. at 143 ("[Defendants' Article II argument . . . must fail [because] [b]y 
appointing a receiver, the Court would not be usurping the executive branch's authority and 
responsibility to ensure that the laws are faithfully executed. Rather, the Court would simply be 
granting 
the relief necessary to cure the defendants' continuing breach of its fiduciary obligations 
towards the 
IIM beneficiaries."); id. at 144 ("[C]ourts only appoint a receiver after the relevant executive 
official 
refuses to comply with the orders of the court and correct the illegal condition that required 
relief in the 
first instance[;] [t]hat is, courts do not appoint receivers because they wish to take control of 
the 
functions normally performed by the executive branch; rather, courts take such action because the 
executive official has in effect declined to do so herself."). But whether or not a court is 
motivated by 
an intent to "usurp the power of the [E]xecutive [B]ranch," the Constitution does not permit 
judicial 
assumption of the duties of an Executive Branch official. As explained above, the Court's 
equitable 
powers do not provide a vehicle for skirting the mandates of the Constitution. INS v. Pangilinan, 
486 
U.S. at 883; see also Cobell v. Norton, 2003 WL 21673009 at 10-12. 
388. The Court stated that "to accept the defendants' self-serving interpretation of Article 
II . . . would mean that the federal courts could not appoint a receiver over, for example, a 
federal 
prison that was operated in violation of the Eighth Amendment, or the schools in the District of 
Columbia since the Supreme Court has held that the Fifth Amendment (as opposed to the Fourteenth 
Amendment) applies to those institutions." Cobell v. Norton, 226 F. Supp. 2d at 143. Appointment 
of 
a receiver over a federal prison may, indeed, raise the sort of constitutional problems addressed 
here, 
and certainly would violate the Constitution if the receiver purported to assume the Attorney 
General's 
statutorily assigned functions with regard to the Bureau of Prisons for the same reasons that 
assumption 
of the Secretary of the Interior's statutorily assigned functions with regard to the IIM trust is 
prohibited. 
The District of Columbia schools do not provide an analogy because the District of Columbia is not 
a
"department of the Government of the United States but a Municipal Corporation." Barrett v. 
Young, 
134 F. Supp. 106, 107 (D.D.C. 1951); see also Fernandez v. United States, 12 Cl. Ct. 764, 767 
(1987) ("[T]he District of Columbia is not an agency or instrumentality of the United States."). 
Thus,
federal separation of powers concerns are not implicated when an agency of the District of 
Columbia is 
placed in receivership, just as they are not implicated when state agencies are placed in 
receivership. 
See Halleck v. Berliner, 427 F. Supp. 1225, 1233-34 & n.10 (D.D.C. 1977) ("It is doubtful whether 
the doctrine of separation of powers applies with the same force to the governmental structure of 
the 
District of Columbia as it does to the federal government" inasmuch as "[t]he Constitution does 
not 
require the states to distribute the powers of government strictly in accordance with the 
separation of 
powers required by the Constitution for the national government."). 
389. The Court also stated in its September 17, 2002 contempt opinion that appointment of 
a receiver would not strip the President of the power to remove an Executive Branch official 
because "a 
court appointed receiver is an officer of the Court, not the [E]xecutive [B]ranch," and "[e]ven if 
the 
Court appointed a receiver over the IIM trust, the President would still maintain the power to 
remove 
any official within the Department of the Interior . . . that he so desired." Cobell v. Norton, 
226 F. 
Supp. 2d at 144. The Court found distinguishable cases such as Printz v. United States, 521 U.S. 
898 
(1997), which held that the Brady Act's transference of federal identity-checking authority to 
local law 
enforcement officials deprived the President of "meaningful . . . control" and thereby violated 
Article 
II's dictate that the President "take Care that the Laws be faithfully executed," Printz, 521 U.S. 
at 923; 
see Cobell v. Norton, 226 F. Supp. 2d at 144. This Court stated that, in such cases, "courts have 
held 
that 'the insistence of the Framers upon unity in the Federal Executive . . . would be shattered, 
and the 
power of the President would be subject to reduction, if Congress could act as effectively without 
the 
President as with him, by simply requiring state officers to execute its laws.'" Cobell v. 
Norton, 226 F. 
Supp. 2d at 144 (quoting Printz, 521 U.S. at 922-23). But the power of the President is reduced 
no 
less if a court, rather than Congress, assumes the functions of the Executive Branch. Appointment 
of a 
receiver would remove authority from the President and place it, instead, in the hands of the 
Judicial 
Branch. And such an appointment would plainly strip from the President the power to remove an 
official performing functions delegated by the Constitution to the Executive and assigned by 
Congress to 
the Secretary of the Interior. That a receiver is "an officer of the Court, not the [E]xecutive 
[B]ranch," 
Cobell v. Norton, 226 F. Supp. 2d at 144, is precisely the constitutional problem, not the 
constitutional 
panacea, as the Court assumes. 
390. In its September 17, 2002 opinion, the Court also rejected Interior Defendants' 
argument that appointment of a receiver would trench on the prerogatives of Congress. The Court 
believed this to be "a statutory rather than constitutional question," and stated that "the 1994 
Act (and 
the other applicable statutes) do not inhibit this Court's authority to appoint a receiver over 
the IIM 
trust." Cobell v. Norton, 226 F. Supp. 2d at 144; see also id. at 137-39. The Court further 
stated that 
"[t]he fact that Congress codified the Secretary of [the] Interior's status as trustee-delegate 
for the
United States is by itself irrelevant." Id. at 144. But requiring an express congressional 
prohibition on 
the appointment of a receiver turns the constitutional presumption on its head. Following the 
Court's 
reasoning to its logical conclusion, the only check on the power of the Judicial Branch to assume 
the 
duties conferred by Congress on an Executive Branch official is Congress itself, which must 
expressly 
prohibit such an assumption of power. But the Court itself states in another portion of its 
opinion that 
even if the 1994 Act "does not inhibit [Plaintiffs'] ability to obtain . . . relief [in the form 
of a receiver], 
they "still must show that the appointment of a receiver does not violate the Constitution." 
Cobell v. 
Norton, 226 F. Supp. 2d at 138. 
391. It may well be the case that "in virtually every case in which a receiver is appointed 
an 
executive branch official was originally tasked with carrying out the duties performed by the 
receiver," 
id. at 144-45, but when the official serves in the Executive Branch of the United States 
government, 
dislodging that official's statutory duties and vesting them instead with an official appointed by 
the 
Judicial Branch contravenes the Appointments Clause, general principles of separation of powers, 
and 
Articles I, II, and III of the Constitution. 
c. Appropriations Clause. 
392. Even if the Appointments Clause, Articles I, II, and III of the Constitution, and the 
separation of powers doctrine did not bar appointment of a receiver over the IIM trust, the powers 
of 
such a receiver would be limited by the Appropriations Clause. The Appropriations Clause provides 
that "[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by 
Law." U.S. Const. art. I, 9, cl. 7. Under our system of separated powers, federal courts do 
not 
make fiscal policy, nor can they allocate resources of the United States based on judicial notions 
of 
equity or fairness. 
393. As the Supreme Court has explained, the Appropriations Clause "assure[s] that public 
funds will be spent according to the letter of the difficult judgments reached by Congress as to 
the 
common good and not according to the individual favor of Government agents or the individual pleas 
of 
litigants." OPM v. Richmond, 496 U.S. 414, 428 (1990); City of Houston v. HUD, 24 F.3d 1421, 
1428 (D.C. Cir. 1994) ("'Money may be paid out only through an appropriation made by law; in other 
words, the payment of money from the Treasury must be authorized by a statute.'" (quoting 
Richmond, 
496 U.S. at 424)). 
394. Accordingly, the Appropriations Clause would limit a receiver's power to the extent 
that the receiver's duties (or the receivership itself) require the expenditure of money from the 
public 
fisc. "It is beyond dispute that a federal court cannot order the obligation of funds for which 
there is no 
appropriation." Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 184 (D.C. Cir. 1992); accord 
City of Houston, 24 F.3d at 1426. Thus, even if a receiver could be appointed to oversee the IIM 
trust 
system without violating other constitutional provisions, that receiver's powers would necessarily 
be 
circumscribed by the Appropriations Clause. 
I. Because Interior's Historical Accounting Plan In No Sense Describes Steps So 
Defective That They Would Necessarily Delay Rather Than Accelerate The 
Provision Of An Adequate Accounting, Interior Must Be Permitted To Proceed
With Its Plan. 
395. The judicially enforceable duty at issue in this case is the production of account 
statements to individual IIM account holders. Defendants have demonstrated that Interior's 
Historical 
Accounting Plan describes a reasoned and appropriate approach for conducting the historical 
accounting required by the 1994 Act. In no sense does Interior's Historical Accounting Plan 
describe 
steps "so defective that they would necessarily delay rather than accelerate the ultimate 
provision of an 
adequate accounting." Cobell v. Norton, 240 F.3d at 1110. Accordingly, the Court has no justification for interfering with Defendants' progress in 
fulfilling their 
statutory duties. 
Dated: August 4, 2003 Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
________________________________ 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
CYNTHIA L. ALEXANDER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194