IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
ELOUISE PEPION COBELL, et al., 
GALE A. NORTON, SECRETARY OF THE INTERIOR, et al., 
ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
APPELLANTS' RESPONSE TO REHEARING PETITION 
ROSCOE C. EOWARD, JR. 
Ur,ited States Attorney 
YARK E. NAGLE 
R. CRAIG LAWRENCE 
Assistant U.S. Attornevs 
U.S. Attorney's Office 
Washinqton, D . C . 20001 
NO. 02-5374 
Plaintiffs-Appellees, 
v. 
Defendants-Appellants. 
~~ 
PETER D. KEISLEF 
Assistant Attorney General 
GREGORY G. KATSAS 
D e R u t V Assistant Attorney 
General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
(202) 514-5089 
Attorneys, Amellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinston, D.C. 20530 TABLE OF CONTENTS 
STATEMEKT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 
CERTIFICATE OF SERVICE 
i TABLE OF AUTHORITIES 
. 
CASES: 
Armstrona v . Executive Office of the President. 
1 F.3d 1274 (D.C. Cir . 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 
3yrd v . Reno. 180 F.3d 296 (D.C. Cir 1999) . . . . . . . . . . . . . 6. 10 
Carducci v . Reqan. 714 F.2d 171 (D.C. Cir . 1983) . . . . . . . . 10-11 
Cobell v . Babbitt. 91 F . Supp . 2d 1 (D.D.C. 1999) . . . . . . . . . . . 2 
Cobell v . Norton. 240 F.3d 1061 (D.C. Cir . 2001) . . . . . . . . . . . . 2 
Cobell v . Norton. 334 F.3d 1126 (D.C. Cir . 2003) . . . 5-9. 11-14 
E;-ans v . Williaxs. 205 F.3d 1292 (D.C. Cir . 2000) . . . . . . . . . . . 9 
In re Cheney. 334 F.3d 1096 (D.C. Cir . 2003) . . . . . . . . . . . . . . . 10 
Int'l Union. United Mine Workers v . Baswell. 
512 U.S. 621 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 
STATUTES : 
Ail Writs Act. 28 U.S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 
American Indian Trust Fund Management Reform Act. 
Pub . L . No . 103-412, 108 Stat . 4239 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 
Civil Service Reform Act of 1976. Pub . L . No . 
95-454. 92 Stat . 1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11 
Federal Advisory Committee Act. 5 U.S.C. App . I1 . . . . . . . . . . . . . 10 
26 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 
MISCELLANEOUS: 
11 C . Wright. A . Miller & M . Kane. Federal 
Practice & Procedure (2d ed . 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 14 
.. 
11 IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
NO. 02-5374 
ELOUI SE PEPION COBELL, et al., 
Plaintiffs-Appellees, 
V. 
GALE A. NORTON, SECRETARY OF THE INTERIOR, et al., 
Defendants-Appellants. 
ON AFFEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
APPELLANTS' RESPONSE TO REHEARING PETITION 
Pursilant to this Court's order of September 11, 2003, 
Defendants-Appellants, Gale A. Norton, Secretary of Interior, et 
ai., hereby respond to the petition for rehearing en banc filed in 
his rrlsttei on September 2, 2003, by Flaintiffs-Appellees. The 
panel's ruling is correct, and plaintiffs have identified no 
conflict with any other decision of this Court and no issue of 
exceptional importance warranting further review. 
STATEMENT 
1. This appeal involves plaintiffs' claim for an historical 
accounting of Individual Indian Money (IIM) accounts held in trust 
by the Department of the Interior (DOI). On December 21, 1999, the 
district court issued a declaratory judgment holding that the 
American Indian Trust Fund Management Reform Act of 1994, Pub. L. 
No. 103-412, 108 Stat. 4239, requires defendants to provide an accurate accounting of a l l money in the IIM trust accounts held for 
the benefit of plaintiffs, without regard to when the funds were 
deposited. Cobell v. Babbitt, 91 F. Supp. 2d 1 ( D . D . C . 1999). 
Because the agency had not yet provided such an accounting, the 
court remanded the matter to allow DO1 the opportunity to come into 
compliance . The court also retained jurisdiction over the matter 
for five years, and required DO1 to file quarterly reports 
explaining the steps taken to rectify the breaches found. Id. at 
. 5 6 . 
On interlocutory appeal under 28 U.S.C. § 1292 (b) , this Court 
largely affirmed. Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 
2001). The Court upheld the district court's characterization of 
the defendants' statutory trust duties - specifically, their duty 
to perform a "complete historical accounting," a. at 1102 - and 
its finding that those duties were judicially enforceable. Id. at 
1104. The Court also affirmed the district court's decision to 
rstciii-i Jurisdiction over the case €or five years and to require 
periodic progress reports, id. at 1109, noting that this relief was 
"relatively modest, id., and "well within the district court's 
equitable powers. a. at 1086. The panel admonished the district 
court, however, "to be mindful of the limits of its jurisdiction.Ii 
- Id. at 1110. 
2. After this Court's decision, the district court appointed 
Joseph S. Kieffer, 111, as a I'Court Monitor" to "monitor and review 
all of the Interior defendants' trust reform activities and file 
written reports of his findings with the Court." JA 3825. DO1 consented to the appointment for a one-year period. The Monitor's 
reports were to comment not only on the pace of trust reform, but 
also on "any other matter Mr. Kieffer deems pertinent." Id. The 
court gave the Monitor access to "any Interior offices or employees 
to gather information necessary or proper to fulfill his duties," 
and allowed him to engage in ex parte communications. JA 3825-26. 
Ir, April 2002, the district court invited the parties to 
submit their views on the reappointment of the Monitor for an 
additional year. JA 5710. The government made clear that it would 
consent to the reappointment only if the Monitor was limited, among 
other things, to reporting on steps taken to rectify the breaches 
of trust declared by the court or steps that would delay an 
accounting. JA 5711. The court rejected this condition, but 
nevertheless reappointed the Monitor. JA 6875. The government 
srbsequently noved to revoke Mr. Kieffer's appointment. 
3 . Pursuant to the district court I s December 1999 ruling, DO1 
began submitting quarterly reports concerning the status of its 
compliance effoyts in March 2000. Based on these reports, and the 
Court Monitcr's comments on them, plaintiffs filed motions for 
orders to show cause why the Secretary of the Interior, an 
Assistant Secretary, and more than three dozen of their employees 
and counsel, should not be held in contempt. 
O n Kovember 28, 2001, the court issued a show cause order 
listing four "specifications" focusing on DO1 ' s alleged failure to 
initiate an historical accounting and its alleged failures to 
report properly on the operations of the Trust Assets and 
3 Accounting Management System and the Bureau of Indian Affairs Data 
Cleanup Project. JA 4452. On December 6, 2001, the court issued 
a supplemental order requiring the defendants also to show cause 
why they should not be held in contempt for "[clommitting a fraud 
on the Court by making false and misleading representations 
starting in March, 2000, regarding computer security of IIM trust 
JA 4467. data. I' 
On September 17, 2002, the district court issued a 265-page 
memorandum opinion, ordering various forms of relief and holding 
the Secretary of the Interior and the Assistant Secretary of the 
Interior for Indian Affairs in contempt. JA 275. 
Although the named defendants were, as the court recognized, 
putative contemi-ors only in their official capacities, and although 
much of the conduct at issue took place before the present 
Secretary even took office, the court's contempt findings were in 
large measure directed at the named defendants personally. The 
ccurt concluded that they were unfit to serve as trustees and 
invited them to resign if they had difficulties with its order. 
The coLirt declared that if DO1 officials, "including Secretary 
Norton, feel that as a result of this Court's rulings they are 
unable or unwilling to perform their duties to the best of their 
ability, then they should leave the Department forthwith or at 
least be reassignzd so that they do not work on matters relating to 
the IIM trust." JA 489. The court's ultimate conclusion was that 
"Secretary Norton and Assistant Secretary McCaleb can now 
4 rightfully take their place * * * in the pantheon of unfit trustee- 
delegates. '' JA 539. 
Based on its conclusion that the officials responsible for the 
accounting program were unfit to perform their duties, the court 
formalized a broad agenda for trust reform to be supervised by the 
court in future proceedings. The court announced that it would 
consider further relief in a "Phase 1.5" trial. In separate orders 
also issued on September 17, 2002, the district court denied the 
motion to revoke the Court Monitor's appointment, and elevated the 
JA 247, Court Monitor to the position of "Special Master-Monitor. 'I 
2 6 6 . 
4. The government sought appellate review, making three main 
arguments. First, the government argued that the district court 
had exceeded the limits of judicial authority by effectively 
displacing the Secretary and taking over the underlying process of 
trust reform. Opening Br. 27; Reply Br. 5. Second, the 
government urged that the court erred in declining to remove Mr. 
Kieffer as Court Monitor and in promoting him to the new role of 
Special-Master Monitor. See Opening Br. 52; Reply Br. 3 9 . Third, 
the government contended that the findings of contempt with respect 
to the Secretary and Assistant Secretary' were without basis and 
must be set aside. See Opening Br. 40; Reply Br. 19. 
In a decision issued on July 18, 2003, the panel held that it 
lacked jurisdiction to consider the first argument, but reversed 
the district court with respect to the second and third arguments. 
Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). With respect to 
5 the government's first argument, the panel held that the court's 
order requiring further trial proceedings did not have the 
practical effect of an injunction and that the government "has not 
'I 
shown that an appeal from the district court's eventual entry of an 
injunction, if and when that occurs, would not provide it with 
adequate relief ~ - Id. at 1138.l 
As far as Mr. Kieffer was concerned, however, the panel 
concluded that the court I s orders "present an appropriate occasion 
for mandamus. I' - Id. at 1139. The panel explained that the 
government's "right to relief is clear, and the injury it alleges 
- interference with the internal deliberations of a Department of 
the Government of the United States - cannot be remedied by an 
appeal from the final judgment." Id. at 1140. On the merits, the 
panel vacated the court's orders denying the motion to revoke the 
Court Nonitor Is appoir,tment and appointing him as Special-Master 
Monitor. The rehearing petition does not seek to disturb this 
aspect of t h e panel's ruling. 
On the third prong of the government's appeal, the challenge 
to the cor,tempt findings, the panel first accepted the government's 
contention that the determination of contempt in this case was 
reviewable. Recognizing that ordinarily an interlocutory finding 
of civil contempt against a party is not immediately appealable, 
the panel viewed the contempt citations here as "functionally 
'At this time, the district court has concluded the "Phase 
1.5'' trial, and has r,ow very recently issued rulings based on that 
trial on September 25, 2003. See Orders of Sept. 25, 2003, Cobell 
v. Norton, Civil Action No. 96-1285 (D.D.C.). 
6 criminal" in nature. 334 F.3d at 1140. The panel stressed the 
unusual nature of this case, in which the district court had gone 
to great lengths to personalize the proceedings, faulting the 
current Secretary of the Interior for the acts and omissions of her 
predecessors, declaring her Ifunfitii to carry out her duties, and 
explicitly suggesting that she resign if she felt unable to fulfill 
her proper role in light of the court's orders. id. at 1146; 
see a l s o id. at 1136. 
Having found the contempt determination reviewable, the panel 
vacated it on the merits. The panel emphasized that the district 
court's own findings "clearly indicate[d] that in her first six 
months in office Secretary Norton took significant steps toward 
completing an accounting." 334 F.3d at 1148. The panel also 
indicated that statements in court-ordered progress reports cannot 
form the bazis for contempt merely because they may have "painted 
an overly sunny picture" of the matters depicted. Id. at 1149. 
See also Id. at 1150 ("we tkiiilk it inconceivable that a 
departmental secretary may be held to have committed a fraud on the 
court because an attorney representing her Department argued in an 
adversarial proceeding that an adversary's motion critical of the 
Department was 'without merit " ) . 
ARGUMENT 
The rehearing petition seeks to call into question the portion 
of the panel's ruling addressing the district court's findings of 
contempt. The panel properly exercised jurisdiction over that 
aspect of the government's appeal, and properly vacated the 
7 contempt determination on its merits. The panel's ruling does not 
conflict with any other decision of this Court and presents no 
issue of exceptional importance warranting en banc review. 
A. 1. The panel properly exercised jurisdiction over the 
government's challenge to the district court's contempt ruling. As 
the panel recognized, ordinarily "an order holding a party in civil 
contempt in an ongoing proceeding is not appealable as a final 
order.'' 334 F.3d at 1140 (citing Bvrd v. Reno, 180 F.3d 298 ( D . C . 
Cir. 1999)). In the circumstances of this case, however, the panel 
viewed the contempt determination as "functionally criminal'' in 
nature. Id. On that basis, that panel concluded that appellate 
jurisdiction existed. Id. 
In taking issue with the panel's ruling, plaintiffs largely 
JA 4 8 9 . 
disregard the nature of the district court's findings and 
conclusions Although Secretary Norton is not a party to this suit 
in her personal capacity, the trial court purported to pass 
jud,-;r,ent upon her individually. Thus, the court Concluded that 
Secretary Norton could take her place "in the pantheon of unfit 
trustee-delegates, 'I JA 539, and invited her to resign "forthwith" 
if she felt "unable or unwilling" to perform her duties "as a 
result of this Court's rulings * * * . I ' 
As the panel recognized, the contempt ruling was not designed 
to secure compliance with a specific court order, but was based, 
instead, on a retrospective judgment of past agency conduct. See 
334 F.3d at 1145-47. The panel recognized that in "some 
circumstances a civil contempt sanction may be designed to 
8 'compensate [ ] the complainant for losses sustained, I( 2. at 1145 
(citation omitted). The panel observed, however, that the court 
. 
had already scheduled another trial to consider alleged 
institutional failures and that the sole relief linked to the 
contempt was an award for attorney's fees for prosecuting the 
contempt trial, which could not be considered relief for the 
alleged underlyirg contempt. Id. Instead, it was clear that the 
court's order and "in particular its statement that Secretary 
Norton was 'unfit, demonstrated that its ruling meant to serve as 
a - "reprimand." Id. at 1146. 
2. Plaintiffs contend that the panel's characterization of 
the contempt findings as functionally criminal was improper because 
the district court denominated the proceedings as civil, and 
because the government did not argue that they were criminal in 
nature. As the panel correctly observed, however, " [a] contempt 
proceeding is either civil or criminal by virtue of its 'character 
and purpose,' not by reason of the trial judge so denominating the 
proceeding. 324 F. 3d at 1145 (quoting International Union, United 
Mine Workers of America v. Baqwell, 512 U.S. 821, 827 (1994)). - See 
_. 
Evans v. Williams, 206 F.3d 1292, 1294-95 (D.C. Cir. 2000). 
Moreover, while the government has always recognized that the 
district court purported to be considering issues of civil contempt 
against the Secretary in her official capacity, we also explained 
that the ruling was not designed to secure prospective compliance 
with a court order and urged that 'Ithe rationale f o r permitting 
immediate appeals from orders of criminal contempt" was fully 
9 applicable in the extraordinary circumstances presented. Opening 
Br. 24 n.6. 
Indeed, appellate jurisdiction would exist to review the 
district court's ruling regardless of whether this contempt matter 
is treated as civil or criminal in nature. As our briefs before 
the panel demonstrated, orders of civil contempt may in appropriate 
cases be reviewed under this Court's mandamus jurisdiction under 
the All Writs Act, 28 U.S.C. 5 1651. See Byrd, 180 F.3d at 302-03. 
Where, as here, a district court concludes that a sitting Cabinet 
Secretary is unfit to execute her statutory functions, and invites 
Opening Br. 26; Reply Br. 44-46. 
her to resign if she disagrees with the court's rulings, there can 
be little doubt that this Court should exercise its supervisory 
jurisdiction to ensure that the trial judge's extraordinary 
conclusicn is not erroneous. 
3. Plaintiffs' reliance on u r e Cheney, 33.1 F.3d 1096 (D.C. 
Cir. 2003), and Carducci v. Reqan, 714 F.2d 171 (D.C. Cir. 19831, 
Is fundamentally xisplaced. The panel h e l d in Cheney that 
appellate jurisdiction did not lie to review certain discovery 
orders in a suit against the Vice President and others under the 
Federal Advisory Committee Act, 5 U.S.C. App. 2. Nothing in that 
decision touches upon questions of civil "or criminal contempt, or 
even remotely addresses the issue of the circumstances in which a 
contempt ruling calling into question the fitness of a sitting 
Cabinet Secretary may properly be subject to review. 
Carducci is inapposite as well. There, this Court held that 
the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 
10 illl, precluded judicial review of certain personnel actions which 
were not alleged to violate the Constitution. The Court, however, 
declined to reach the question of whether procedural due process 
procections might apply to such matters, reasoning that this issue 
had not been raised before the district court. 714 F.2d at 177. 
Again, that decision has no bearing on the case at bar, in which 
there is no "asserted but unanalyzed constitutional claim" (d.), 
and in which the government explicitly argued that appellate 
jurisdiction existed, in part because the rationale for permitting 
immediate appeals from orders of criminal contempt was fully 
Opening Br. 24-27. applicable. 
B. The panel also properly vacated the district court's 
contempt determination on its merits. The court's conclusion that 
the Secretary and Assistant Secretary were in contempt is legally 
unsustainable under any applicable standarc:. 
The panel was plainly correct in holding that, seen from a 
criminal perspective, Ms. Norton arid Nr. McCaieb cannot properly be 
held in contempt with respect to events in which they had no 
personal involvement and which occurred in significant part before 
they were in office. 334 F.3d at 1145-50; see also Brief of 
Gale A . Norton In Her Individual Capacity at 23-38. Equally 
clearly, however, there simply was no contemptuous conduct here, 
regardless of whether the matter is addressed from a civil or 
criminal vantage point. 
As noted, the contempt proceedings were based on five 
"specifications. I' The first two specifications concerned in 
11 significant part DOI's alleged failure to undertake appropriate 
historical accounting efforts subsequent to the district court's 
December 1999 ruling. As the government noted in its briefs before 
the panel, however, the district court's December 1999 ruling was 
a declaratory judgment, not an injunctive order, and it specified 
no timeline within which DO? was required to effectuate particular 
steps. - See Opening Br. 43-44. Thus, this matter involves no 
violation of any mandatory injunctive term, and f o r this reason 
alone cannot form the basis for contempt. See, e.q., Armstronq v. 
Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 
1993). 
Moreover, even the Court Monitor admitted that within less 
than a year from the time of this Court's affirmance of the 1999 
ruling, a d from the beginning of Secretary Norton's term in 
office, the government had "made more progress * * ',: than the pas= 
administration did in six years." JA 3161. Thus, as the panel 
properly explained, the district court's own findings "clearly 
indicate that in her first six months in office Secretary Norton 
took significant steps toward completing an accounting." 334 F.3d 
at 1148. Against this backdrop, the district court's statement 
that the government's efforts were "too little, too late' is 
without basis. a. at 1147. For these reasons, the first two 
Ilspecifications" provide no plausible ground for a finding of 
contempt, regardless of whether such contempt might be viewed as 
civil or criminal, and regardless of whether any particular event 
1 2 occurred prior or subsequent to Secretary Norton's assumption of 
off ice. 
Similarly, specifications 3 and 4 involved allegedly 
misleading statements contained in DOI's quarterly reports. But as 
comprehensively demonstrated in our briefs, the district court's 
characterizations of those statements were themselves fundamentally 
inaccurate. See Opening Br. 51-52; Reply Br. 30-35, The reports 
mandated by the court were voluminous in nature, addressed a number 
of highly technical issues, and necessarily required the exercise 
of judgment regarding tone and emphasis. See, e.g., JA 540. 
Especially when considered in isolation and out of context, it was 
not contempt for a relatively small number of statements contained 
in hundreds if not thousand of pages of court-ordered reports to 
have "painted, in ret-ospect, "an overly sunny picture" of ongoing 
progress. 334 F.3d at 1149. Again, this conclusion hol(is true 
regardless of whether the contempt ruling is seen as civil or 
crinirisl i r i nature, arid regardless whether any particular report 
was prepared before or after Secretary Norton took office.2 
Finally, the fifth specification touched upon various 
statements made to the court regarding computer security, including 
statements made by government lawyers in litigation proceedings to 
the effect that, in the government's view, certain of plaintiffs' 
'As the panel properly noted as well, it was especially 
"mystifying" for the district court to hold that later reports 
calling attention to shortfalls in earlier cnes "lead to the 
conclusion that those [prior] reports were intentionally false and 
misleading." 334 F.3d at 1149. 
13 arguments were without merit. A s the panel correctly observed on 
this point, the government made no false statements and it is 
"inconceivable that a departmental secretary may be held to have 
comrritted [contempt or] a fraud on the court because an attorney 
representing her Department argued in an adversarial proceeding 
that an adversary's motion critical of the Department was 'without 
merit. 'I 334 F.3d at 1150. For the above reasons, the panel 
properly set aside the district court's contempt findings on their 
merit s . 
3 ~ ~ r the same reasons that this case presents no proper basis 
for contempt, it also presents no basis for a charge of "fraud on 
the court." As the panel noted, fraud on the court is an extremely 
"narrow concept, limited to 'the most egregious conduct involving 
a corruption of the judicial process itself."' 334 F.3d at 1148 
(quoting 11 C. Wright, A. Miller & M. Kane, Federal Practice & 
Procedure § 2870, at 418 (2d ed. 1995)). From any objective 
standpoint, the matters at issue here, including optimistic 
assessments in court-ordered progress reports and statements by 
counsel to the effect that particular arguments lacked merit, do 
not come close to falling within the scope of that doctrine. 
14 denied. 
ROSCOE C. HOWARD, JR. 
United States Attorney 
MARK E. NAGLE 
R. CRAIG LAWRENCE 
Assistarit U.S. Attorneys 
U.S. Attorney’s Office 
Washinqton, D.C. 20001 
SEPTEMSER 2003 
For the foregoing reasons, the rehearing petition should be 
CONCLUSION 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
GREGORY G. KATSAS 
DeDutv Assistant Attorney 
General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
(202) 514-5089 
Attorneys, ADpeliate Staff 
Civil Division, R o o m 9108 
Department of Justice 
601 D Street, N.W. 
Washinqton, D.C. 20530 
15 specified 
By hand delivery: 
By regular mail: 
CERTIFICATE OF SERVICE 
I hereby certify that on this 26th day of September, 2003, I 
caused copies of the foregoing response to be sent to the Court by 
courier and to be served on the following counsel in the manner 
The Honorable Royce C. Lamberth 
United States District Court 
United States Courthouse 
Third and Constitution Ave., N.W. 
Washington, D.C. 20001 
Dennis M. Gingold 
1275 Pennsylvania Avenue, N.W. 
9th Floor 
Washington, D.C. 20004 
Herbert L. Fenster 
McKenna, Long & Aldridge, LLP 
1900 K Street, N.W. 
Washington, D.C. 20006 
Elliott H. Levitas 
G. William Austin 
Kilpatrick Stockton, LLP 
607 14th Street, N.W. 
Suite 900 
Washington, DC 20005-2018 
Keith Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D . C . 20036-2976 
THOMAS M. BONDY 
Attorney f o r Appellants