IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REQUIRE 
DEFENDANTS TO GIVE THEIR BENEFICIARIES NOTICE OF 
DEFENDANTS' CONTINUING INABILITY OR REFUSAL 
TO DISCHARGE THEIR FIDUCIARY DUTIES 
BACKGROUND 
On February 4, 1997, the Court certified under Federal Rule of Civil Procedure 
23(b)(1)(A) and (b)(2), "a plaintiff class consisting of present and former beneficiaries of 
Individual Indian Money accounts." Order of February 4, 1997 at 2-3. Notice of the certification 
decision and the nature of the relief requested in the litigation was neither requested nor sent to 
the absent class members. On December 21, 1999, the Court entered its Phase 1 judgment in 
favor of the Plaintiffs. Notice of this opinion was neither requested nor sent to the absent class 
members. On February 23, 2001, the Court of Appeals largely affirmed the Phase 1 judgment. 
Notice of the Court of Appeals' decision was neither requested nor sent to the absent class 
members. On September 17, 2002, the Court held the Secretary of the Interior in contempt and 
scheduled the Phase 1.5 trial. Notice of this opinion – or the Court of Appeals' later opinion 
vacating the contempt finding – was neither requested nor sent to the absent class members. On 
September 25, 2003, the Court entered its structural injunction against Defendants for the Phase
1.5 trial, identifying numerous trust obligations and requirements for Defendants to follow. 
Notice of this order was neither requested nor sent to the absent class members. 
On October 27, 2004, almost eight years after certification of the class, when no 
significant event in this litigation has recently occurred, Plaintiffs filed their Motion to Require 
Defendants to Give Their Beneficiaries Notice of Defendants' Continuing Inability or Refusal to 
Discharge Their Fiduciary Duties ("Motion"). The notice that Plaintiffs ask the Court to approve 
in their Motion ("Proposed Notice") contains disputed facts about issues that are currently on 
appeal. According to the Motion, the Proposed Notice would only be attached to ordinary course 
of business communications and thus would not be sent to all of the class members. Plaintiffs 
also request that Defendants disseminate – and pay the costs of disseminating – the Proposed 
Notice.
The Proposed Notice is the wrong notice at the wrong time to the wrong group of 
recipients paid for, and sent out, by the wrong party. The Court should deny the Motion. 
ARGUMENT 
PLAINTIFFS' PROPOSED NOTICE IS IMPROPER I. 
The Timing of the Proposed Notice is Inappropriate A. 
As Plaintiffs acknowledge, notice is not required for a class that is certified under Federal 
Rule of Civil Procedure 23(b)(2), as is this one. See Motion at 21 n.18. The only exceptions are 
that Rule 23(e)(1)(B) requires notice regarding settlement or dismissal and Rule 23(h)(1) requires 
notice regarding an attorney fee request by class counsel. Although Plaintiffs have recently filed 
2
an interim request for almost $15 million in attorney fees, the Motion does not request notice of a 
proposed settlement or dismissal of the case, or counsel's fee request.1 
In the absence of required notice, the only question in Rule 23(b)(2) cases is whether a 
court should exercise its discretion under Rule 23(d)(2) and order notice for "the protection of the 
members of the class or otherwise for the fair conduct of the action." Fed. R. Civ. P. 23(d)(2). 
"In most cases, however, 'notice would add little or nothing.'" Wetzel v. Liberty Mutual Ins. Co., 
508 F.2d 239, 257 (3d Cir. 1975) (quoting 3B J. Moore, Federal Practice ¶ 23.07(1) (2d ed. 
1974)). The Advisory Committee Note for Rule 23(d) cautions that "[i]n the degree that there is 
cohesiveness or unity in the class and the representation is effective, the need for notice to the 
class will tend toward a minimum." Fed. R. Civ. P. 23(d) Advisory Committee Notes. The D.C. 
Circuit has suggested that in a Rule 23(b)(1) or (b)(2) case, "[a]t best, then, notice provides 
absent [class] members with an opportunity to monitor the representation of their rights." 
Larionoff v. United States, 533 F.2d 1167, 1186 (D.C. Cir. 1976). 
Plaintiffs did not request that notice of this case, or the claims at issue, be sent to the 
absent class members when the class was certified, or since.2 Plaintiffs do not explain in their 
1/ As discussed in Section II below, if the Court decides that a notice should be sent to the class 
members at this time, any such notice should include the Rule 23(h) information about Plaintiffs' 
interim attorney fee motion. 
2/ At the request of Plaintiffs, the Court provided an "opt-in" opportunity for IIM account holders 
"who prior to the filing of the Complaint herein had filed actions on their own behalf alleging 
claims included in the Complaint." Order of February 4, 1997 at 3. These account holders could 
"elect to join the Class by filing notice of such election with the Court and serving the same upon 
counsel for the parties." Id. Defendants are unaware of any such IIM account holders electing to 
join the class. Perhaps this is because they never received notice of their opportunity to do so. If 
Plaintiffs' oft-expressed view that this litigation includes virtually all matters related to the IIM 
trust were correct, the subset of IIM account holders who are not part of the class because they 
never elected to opt-in would include virtually any IIM account holder who ever filed suit against 
3
Motion why, after nearly eight years of silence on all of the significant events in this case, a 
"mid-litigation, informational notice," Motion at 15 n.11, is urgently needed now. Other than the 
attorney fee motion, it is difficult to conceive of any recent event in the litigation of which the 
absent class members might desire to be informed or which would require any action by the 
absent class members to protect their rights in this case. 
As revealed in the Motion and Proposed Notice, Plaintiffs do not really seek to 
communicate with the class members and give them a somewhat tardy mid-litigation update on 
the status of the case and the right to consult with class counsel. Rather, they seek to gain 
additional, previously unrequested substantive relief in the case under the guise of a notice to the 
class members. 
Plaintiffs now seek to have the Court recognize a novel new trust duty – the duty to notify 
beneficiaries that a trustee has breached its trust duties (even where the issue of breach is still in 
dispute). They then seek to have the Court find Defendants in breach of this new trust duty. 
Finally, they seek, as a remedy, to require Defendants to send the Proposed Notice informing the 
class members of this supposed breach. 
Plaintiffs do not rely primarily on Rule 23(d) as support for the Court's authority to grant 
them this new substantive relief. They start by vaguely asserting that the American Indian Trust 
Reform Act of 1994 somehow gives the Court the power to order such relief, but they do not 
include any supporting argument – other than to sprinkle the bold feature from their word 
processor on various words, seemingly at random, in the portion of the statute reproduced in their 
Motion. See Motion at 10 n.5. Perhaps recognizing the paucity of statutory authority, Plaintiffs 
Interior prior to June 10, 1996, when the Complaint was filed. 
4
rely mainly on the "inherent" authority of the Court, "sitting as a chancellor in equity," Motion at 
7, to grant them the requested substantive relief. See Motion at 7-11. 
What Plaintiffs ignore is that the substantive relief they request now in their Motion is 
inextricably intertwined with the relief requested, and granted, in the Phase 1.5 trial. The Court 
described at considerable length in its September 25, 2003 Phase 1.5 opinion the various trust 
duties that it believed were applicable to the Defendants. The Court also provided for the 
appointment of a "Judicial Monitor" with oversight powers similar to those of the "special 
property advisor" appointed in Republic of the Phillipines v. New York Land Co., 852 F.2d 33 
(2d Cir. 1988), the principal case cited in the Motion as authority for the Court to use its powers 
as a chancellor in equity to grant Plaintiffs their requested substantive relief.3 Nowhere, 
however, did the Court address, much less identify, the duty to notify beneficiaries of supposed 
breaches of trust obligations in its September 25, 2003 opinion or structural injunction. Nowhere 
in the Court's structural injunction did the Court order Defendants "to notify Beneficiaries of 
their rights and remedies and the inaccuracy and unreliability of the information routinely 
distributed to Beneficiaries." Motion at 4. 
The time for Plaintiffs to request the notification duty they now seek was during the 
Phase 1.5 trial. Plaintiffs said nothing in the plans they submitted for Phase 1.5 and never 
mentioned such a duty during the lengthy Phase 1.5 proceedings. After the Court's September 
25, 2003 opinion and structural injunction were issued, they elected not to appeal the absence of 
any such trust obligation on Defendants. Plaintiffs cannot now ask the Court to find such an 
3/ As discussed in Defendants' briefs on appeal, Defendants do not concede that the Court has the 
authority in this case to establish a Judicial Monitor or a special property advisor or a receiver 
over a co-equal branch of the government. 
5
obligation, find Defendants in breach of such an obligation, and order a notice sent, all without a 
trial. 
The parties are vigorously disputing the nature of this Court's jurisdiction and authority to 
use the type of inherent equitable powers available to a "chancellor" in equity in the current 
appeals of the Phase 1.5 structural injunction and the IT preliminary injunction. The nature of 
applicable fiduciary duties and the consequences for breach of such duties are also on appeal. It 
is thus inappropriate for the Court to order a notice now of the type requested by Plaintiffs. The 
Court either has no power to order dissemination of the Proposed Notice because it involves 
matters on appeal – in which case the Court is deprived of jurisdiction – or, even if the Court 
retains jurisdiction, it would be imprudent to send a notice now to class members regarding trust 
obligations when any such information may prove misleading or confusing depending upon how 
the Court of Appeals rules. 
The Content of the Proposed Notice Is Inappropriate B. 
Plaintiffs have not identified a valid purpose for dissemination of their Proposed Notice 
to absent class members now. If the Court concludes, however, that notice should be sent, much 
of the language in the Proposed Notice is improper. Plaintiffs included strikingly similar 
language in their proposed language for the land sales notice. See Cobell v. Norton, No 96-1285, 
2004 WL 2377222, at *14-15 (D.D.C. Oct. 22, 2004). The Court rejected this language because 
"several of the assertions in the plaintiffs' proposed notice are disputed matters currently pending 
before the Court of Appeals." Id. at *16. 
As discussed above, notice to Rule 23(b)(2) class members at this stage of the litigation is 
unnecessary, but if any notice is sent its content should be limited to those elements included in 
6
the Court's October 22, 2004 Memorandum Opinion and Order.4 Thus any notice should only 
inform class members "of the existence of this litigation, of their potential class membership, and 
of their right to consult with class counsel . . . ." Cobell, 2004 WL 2377222 at *16. 
The Subclass of Recipients of the Proposed Notice Is Inappropriate C. 
In their Motion, Plaintiffs claim that their Proposed Notice is needed now to prevent 
irreparable harm and "to protect class members' rights." Motion at 9. The "rights" that Plaintiffs 
claim are at risk of being violated if class members do not receive the Proposed Notice are the 
"rights" of IIM beneficiaries to have accurate trust information before they "make critical 
decisions about their trust property based on information provided by the Department of 
Interior."5 Motion at 1. Surprisingly, however, the examples provided by Plaintiffs in their 
Motion of the types of "critical decisions" that the beneficiaries should not have to make without 
notice are precisely the types of decisions that Plaintiffs already conceded during the land sales 
notice dispute were ones for which notice was not needed. Indeed, consistent with Plaintiffs' 
concessions, the Court found that – unlike sales transactions – prior notice was unnecessary for 
communications regarding: 
1. Encumbrances, leasing, lease sales, permitting, rights-of-way, and timber sales 
of or on individually-owned Indian trust land; 2. The investment of trust funds in 
IIM accounts; 3. Estate planning, will drafting and the probate of or relating to 
Indian trust assets; 4. The surveying or appraisal of trust assets; 5. Title to trust 
4/ Defendants vigorously dispute the description of the IIM trust duties contained in the Proposed 
Notice, including any description which inaccurately states that the duties of the various 
Defendants are co-extensive. 
5/ Plaintiffs are not seeking to protect the rights of the class members as litigants in this litigation, 
but rather are seeking to protect their rights in other circumstances (i.e., the right to make 
informed decisions in these other situations). 
7
lands; 6. Ownership of trust funds or lands; or 7. Physical improvement or 
alteration of trust assets. 
Cobell, 2004 WL 2377222, at *26. 
In their Motion, however, Plaintiffs now claim that lease decisions, timber sales 
decisions, rights-of-way and easement decisions, decisions about whether to improve and alter 
land, and estate planning decisions are the very types of decisions where class members' rights 
are at risk absent prior notice. See Motion at 1. Moreover, under the scheme suggested by 
Plaintiffs in their Motion, the Proposed Notice would not be sent to all class members as a 
separate notice, but rather would only be included in all routine written communications between 
Defendants and the class members. See Motion at 2; proposed order attached to the Motion at 1.6 
In the Court's December 23, 2002 Memorandum Opinion and Order, these communications – 
ones that would take place even if the litigation did not exist – are described as ordinary course 
of business communications. See Cobell v. Norton, 212 F.R.D. 14, 22 (D.D.C. 2002). As 
discussed in that opinion and in the Court's September 29, 2004 Memorandum Opinion and 
Order regarding land sales, ordinary course of business communications by definition are 
communications where the rights of absent class members are not at risk. 
Indeed, any written communication where the rights of a class member are at risk of 
being extinguished is already prohibited under the December 23, 2002 Order. Therefore, if the 
purpose of the Proposed Notice is to protect the rights of class members, and the only class 
6/ Including the Proposed Notice in "all" communications between Interior and the IIM 
beneficiaries without regard to the subject matter of the communication – as proposed by 
Plaintiffs in their Motion – would lead to the absurd result in which the Proposed Notice would 
be attached to communications regarding health care, education, and other topics that are 
obviously unrelated to the subject matter of this case. 
8
members who would receive the Proposed Notice are those who are at risk of having their rights 
terminated, under the existing orders of the Court, the only class members who would receive the 
Proposed Notice are those who are receiving written communications regarding land sales or 
those who are receiving a statement of historical accounting, because these are the only situations 
identified thus far by the Court in which class member rights are at risk during communications 
with Defendants. But because the Court has already approved the form of notice to be included 
in these situations, there are no currently identified written communications where Plaintiffs' 
Proposed Notice would be included. To be sure, as the Court mentioned at the October 6, 2004 
status hearing, there may be other types of communications where the Court will find that class 
members' rights are at risk, but Plaintiffs were supposed to bring them to the attention of the 
Court at the October 19, 2004 hearing. See Tr., Oct. 6, 2004 at 33:15-35:17. They did not 
identify any such circumstances on October 19, 2004 – indeed they conceded that all of the 
situations identified by the government (the so-called "items 2-8") were not covered by the 
December 23, 2002 Order – and have yet to bring any others to the attention of the Court. The 
types of communications discussed in their Motion have been explicitly recognized by the Court 
to be ones for which prior notice is not needed. 
9
D. Administrative Expenses Associated with the Proposed Notice and the 
Burden of Sending It Out Should Be Borne by Plaintiffs 
As Plaintiffs concede, the default rule is that the Representative Plaintiffs – or class 
counsel – should bear the cost and burden of sending out notice to the absent class members. 
See Motion at 13; see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178-79 (1974); 
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); Dellums v. Powell, 566 F.2d 167, 174 
n.4 (D.C. Cir. 1977). "As in all litigation, the plaintiff is obligated to pay litigation costs. Added 
costs, especially of notice to the class, are associated with the bringing of class actions in contrast 
to individual ones." 2 Alba Conte & Herbert B. Newberg, Newberg on Class Actions, § 5:26, at 
449 (4th ed. 2002). "As a practical matter, counsel for the class most frequently advances all 
costs of class litigation on a contingency basis, so that the primary risks and exposure to larger 
litigation expenses will fall on the shoulders of class counsel, subject to potential reimbursement 
from a fee award if the litigation succeeds." Id. 
Plaintiffs go to considerable lengths in their Motion to establish the unremarkable 
proposition that the Court retains discretion to shift all, or part, of the costs and burden of 
sending out notices under certain circumstances where such notices are needed to protect class 
member rights. See Motion at 12-21. Indeed, in each of the cases discussed by Plaintiffs, a 
notice was deemed necessary to protect the litigation rights of class members. For example, in 
Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999), the certified class consisted of aliens 
who had qualified for a suspension of deportation, but the final adjudication had not yet occurred. 
167 F.3d at 1233, supplemented by Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001). A 
preliminary injunction was entered against the government, staying the deportation of all class 
10
members who could be ordered deported after being denied suspension of deportation. 167 F.3d 
at 1233. The district court found that if the class members did not receive notice of their rights 
under the preliminary injunction they could be erroneously deported, which would terminate their 
rights as class members. Id. at 1236. Under those circumstances, and where there was no real 
burden to the government because it could easily attach the notice to any order sent to a class 
member denying his or her deportation suspension application, the Ninth Circuit concluded that 
it was not error to order the defendants to bear the costs of sending out the notice. 
The other two cases cited by Plaintiffs, Kansas Hospital Association v. Whiteman, 167 
F.R.D. 144 (D. Kan. 1996), and Peoples v. Wendover Funding, Inc., 179 F.R.D. 492 (D. Md. 
1998), also involved required notices. Peoples involved a required opt-out notice for a Rule 
23(b)(3) class certification. 179 F.R.D. at 502. Kansas Hospital involved a required Rule 23(e) 
notice of dismissal. 167 F.R.D. at 146. 
Here, as discussed above, notice is unnecessary.7 If, for whatever reason, Plaintiffs still 
want to send out a notice to the absent class members – and the content of such a notice is 
limited to appropriate language approved by the Court – Defendants do not object. Because 
notice is unnecessary, however, Plaintiffs should bear the costs and the burden of sending it. 
See, e.g., Arey v. Providence Hosp., 55 F.R.D. 62, 71 (D.D.C. 1972). 
7/ To the extent that Plaintiffs' counsel have properly represented the class, they should have 
already kept class members informed about the case and their rights as class members. They 
have made various appearances at conventions, put information on their website, hired a press 
agent, and taken other actions to inform absent class members about their rights. 
11
II. IF NOTICE IS SENT OUT NOW IT SHOULD INCLUDE THE NOTICE OF 
PLAINTIFFS' ATTORNEY FEE REQUEST REQUIRED BY RULE 23(h) 
On August 17, 2004, Plaintiffs filed their EAJA Petition for Interim Fees Through the 
Phase 1.0 Proceeding, seeking an award of $14,528,467.21. Under Rule 23(h)(1), notice of this 
fee request, together with an opportunity to object, must be directed to class members "in a 
reasonable manner." Fed. R. Civ. P. 23(h)(1). According to the Advisory Committee, "[b]ecause 
members of the class have an interest in the arrangements for payment of class counsel whether 
that payment comes from the class fund or is made directly by another party, notice is required in 
all instances." Fed. R. Civ. P. 23(h)(1) Advisory Committee Note (emphasis added). 
If the Court exercises its discretion under Rule 23(d) and authorizes Plaintiffs to send out 
a notice at this time, any such notice should include the Rule 23(h)(1) attorney fee notification. 
Because the Rule 23(h)(1) notice was triggered by Plaintiffs' action (i.e. the filing of their interim 
attorney fee request), Plaintiffs should also bear the costs and burden of sending out this notice. 
12
For these reasons, Plaintiffs’ Motion should be denied. 
Dated: November 10, 2004 
CONCLUSION 
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 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
13
CERTIFICATE OF SERVICE 
I hereby certify that, on November 10, 2004 the foregoing Defendants' Opposition to 
Plaintiffs' Motion to Require Defendants to Give Their Beneficiaries Notice of Defendants' 
Continuing Inability or Refusal To Discharge Their Fiduciary Duties was served by Electronic 
Case Filing, and on the following who is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
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 NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on Plaintiffs' Motion to Require Defendants to Give 
Their Beneficiaries Notice of Defendants' Continuing Inability or Refusal to Discharge Their 
Fiduciary Duties [2746]. Upon consideration of the Motion, the responses thereto, and the 
record in this case, it is hereby 
ORDERED that Plaintiffs' Motion is DENIED. 
SO ORDERED. 
Date: _________ 
ROYCE C. LAMBERTH 
United States District Judge
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530