1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, . Docket Number: CA 96-1285
et al, .
.
Plaintiffs, .
.
v. . Washington, D.C.
. October 30, 2001
SECRETARY OF INTERIOR, . 10:00 a.m.
et al, .
.
Defendants. .
.
. . . . . . . . . . . . . . .
TRANSCRIPT OF STATUS CALL
BEFORE THE HONORABLE ROYCE C. LAMBERTH
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff: DENNIS GINGOLD, ESQUIRE
(202) 661-6380
MARK BROWN, ESQUIRE
(202) 661-6382
KEITH HARPER, ESQUIRE
Native American Rights Fund
1712 N. Street, N.W.
Washington, D. C. 20036
(202) 822-0068
ELLIOTT LEVITAS, ESQUIRE
For the Defendant: MARK E. NAGLE, ESQUIRE
Chief, Civil Division
SCOTT HARRIS, ESQUIRE
CRAIG LAWRENCE, ESQUIRE
United States Attorney's Office
555 4th Street, N.W.
Washington, D. C. 20001
(202) 514-7151
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
2
J. CHRISTOPHER KOHN, ESQUIRE
JOHN T. STEMPLEWICZ, ESQUIRE
U.S. Department of Justice
Box 875
Ben Franklin Station
Washington, D. C. 20044
(202) 514-7450
BRIAN FERRELL, ESQUIRE
(202) 691-3715
WILLIAM MYERS, ESQUIRE
Department of the Interior
MEGAN HILLS, ESQUIRE
Department of Treasury
Court Reporter: SUSAN PAGE TYNER, CVR-CM
Official Court Reporter
Room 6824, U.S. Courthouse
Washington, D.C. 20001
(202) 371-2230
Proceedings reported by stenomask, transcript produced from
dictation.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
3
1 P R O C E E D I N G
2 THE COURTROOM CLERK: This Honorable Court is now
3 in session. Please be seated and come to order.
4 Good morning, Your Honor.
5 THE COURT: Good morning.
6 THE COURTROOM CLERK: This is Civil Case 96-1285,
7 Elouise Pepion Cobell, et al, versus Secretary of Interior,
8 et al.
9 Would counsel please come to the podium for the
10 record and give your names and the parties you represent
11 beginning with the plaintiffs.
12 MR. GINGOLD: Good morning, Your Honor. Dennis
13 Gingold for the plaintiffs.
14 MR. BROWN: Mark Brown for the plaintiffs.
15 MR. HARPER: Keith Harper for the plaintiffs.
16 MR. LEVITAS: Elliott Levitas for the plaintiffs.
17 MR. NAGLE: Good morning, Your Honor. Mark Nagle,
18 Assistant United States Attorney.
19 Your Honor, the United States Attorney's Office is
20 appearing in this matter on behalf of defendants and others
21 named in the plaintiffs' motions for order to show cause
22 filed in August of 2000, and in April, May, August and
23 October of 2001 insofar as any sanctions sought in those
24 motions would run against those named in their official
25 capacities.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
4
1 MR. HARRIS: Good morning, Your Honor. Scott
2 Harris from the United States Attorney's Office on behalf of
3 the same clients as Mr. Nagle articulated.
4 MR. LAWRENCE: Good morning, Your Honor. Craig
5 Lawrence, also from the U.S. Attorney's Office on behalf of
6 those same defendants.
7 MR. KOHN: Good morning, Your Honor. My name is
8 Chris Kohn. I am with the Civil Division of the Department
9 of Justice. We will be representing the defendants with
10 respect to the other aspects of this case. We have referred
11 to them as the merits aspect of the case.
12 Thank you, Your Honor.
13 THE COURT: So the Civil Division for the
14 Department of Justice is now going to take over the defense
15 of the primary action?
16 MR. KOHN: That is correct, Your Honor.
17 MR. STEMPLEWICZ: Good morning, Your Honor. John
18 Stemplewicz from the Civil Division of the Department of
19 Justice for the defendants.
20 THE COURT: My condolences.
21 MR. FERRELL: Good morning, Your Honor. Brian
22 Ferrell representing the Secretary of the Treasury.
23 MR. MYERS: Your Honor, I am Bill Myers, Solicitor,
24 Department of the Interior.
25 MS. HILLS: Good morning, Your Honor. I am Megan
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
5
1 Hills. I am the Associate Deputy Counsel on behalf of the
2 Department of Treasury.
3 THE COURT: Okay. Are there counsel for any
4 individually named non-parties to this case who are here?
5 MR. ZUCKERMAN: Good morning, Your Honor. It is a
6 pleasure to be here. My name is Roger Zuckerman, and along
7 with my partner, Leslie Kiernan, we represent Robert Lamb,
8 who is one of the individuals named in the plaintiffs' motion
9 for order to show cause.
10 Thank you.
11 MS. JACKSON: Good morning, Your Honor. Amy
12 Jackson on behalf of Edith Blackwell.
13 MS. KEMLER: Good morning, Your Honor. Lisa Kemler
14 on behalf of Deborah Maddock, and I have a notice of
15 appearance to pass up.
16 THE COURT: Lisa Kemler?
17 MS. KEMLER: Kemler, K-e-m-l-e-r.
18 THE COURT: Okay.
19 MR. LUSKIN: Good morning, Your Honor. Robert
20 Luskin for Bruce Babbitt, John Leshy and Edward Cohen. We
21 have only just been retained Your Honor and we will file a
22 notice of appearance today.
23 THE COURT: Okay. I am sorry, Babbitt, Cohen and
24 who?
25 MR. LUSKIN: Leshy. And I represent Secretary
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
6
1 Babbitt, obviously, solely for the purpose of these
2 collateral matters.
3 THE COURT: Right.
4 MS. ROGERS: Good morning, Your Honor. Marti
5 Rogers. I represent Mr. Elliott, Timothy S. Elliott from the
6 Department of the Interior, and I entered an appearance in
7 September.
8 THE COURT: Right.
9 MR. BRAUMWICH: Good morning, Your Honor. My name
10 is Michael Braumwich. I represent Sharon Blackwell. We have
11 just been retained, and we will be entering a notice of
12 appearance shortly.
13 THE COURT: Okay.
14 MS. VOLKER: Good morning, Your Honor. My name is
15 Kathleen Volker. I represent James Douglas, and I am
16 prepared to enter my appearance this morning.
17 THE COURT: Okay.
18 MR. BRIGGS: Good morning, Your Honor. My name is
19 Bill Briggs. I will be entering my appearance on behalf of
20 Phil Brooks from the Department of Justice.
21 THE COURT: Okay.
22 MR. LONDON: Good morning, Your Honor. I am Mark
23 London with my partner, Christopher Meed. We represent
24 Kenneth Rossman.
25 MR. GOODSTEIN: Good morning, Your Honor. Michael
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
7
1 Goodstein on behalf of Tom Clark.
2 MS. ZIMMITTI: Good morning, Your Honor. Laura
3 Zimmitti on behalf of Phil Brooks.
4 THE COURT: I didn't get your last name.
5 MS. ZIMMITTI: Zimmitti, Z-i-m-m-i-t-t-i.
6 THE COURT: For Phil Brooks as well?
7 MS. ZIMMITTI: Yes, Your Honor.
8 THE COURT: All right.
9 MS. VAN GELDER: May it please the court, Barbara
10 Van Gelder on behalf of James Eicher, DOJ.
11 THE COURT: For James who?
12 MS. VAN GELDER: Eicher, E-i-c-h-e-r.
13 THE COURT: Eicher, okay.
14 MR. DUNCAN: Good morning, Judge Lamberth. Russell
15 Duncan representing David Shulton from the Department of
16 Justice.
17 MS. FLEMING: Good morning, Your Honor. I am
18 Elizabeth Fleming. I am representing Michael Rosetti of the
19 Department of the Interior, and I do want to notify the court
20 that I don't have a formal representation agreement with Mr.
21 Rosetti at this moment. I expect to have one by the close of
22 the day.
23 THE COURT: And your name was Glenning?
24 MS. FLEMING: Elizabeth Fleming.
25 THE COURT: Fleming, I am sorry.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
8
1 MS. FLEMING: Yes, Your Honor.
2 THE COURT: F-l-e-m-i-n-g.
3 MS. FLEMING: Yes, Your Honor.
4 MR. NATHANS: Good morning, Your Honor. Larry
5 Nathans representing David Shewey from the Department of
6 Justice.
7 MR. BOSS: Good morning, Your Honor. Barry Boss.
8 I have also not formally been retained at this point, but I
9 expect to be so very shortly.
10 THE COURT: Okay.
11 MR. BYERS: Good morning, Your Honor. Stephen
12 Byers, Crowell & Moring. We represent Dominique Nessi.
13 THE COURT: Okay. Any other counsel present for
14 any of the individual non-parties?
15 (No response.)
16 THE COURT: Does counsel for the government know
17 the status of representation of any of the others in terms of
18 -- are others still seeking counsel, or are others present,
19 or what do we know about that?
20 MR. NAGLE: Your Honor, our information is that
21 there are other requests that are at various stages of being
22 formulated or presented. We don't have any more concrete
23 information for the court at this time.
24 THE COURT: Okay. Is there any other non-party
25 individual who wants to be heard at this hearing?
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
9
1 (No response.)
2 THE COURT: All right. The main reason I set the
3 hearing was first to deal with any requests to extend time,
4 since I am not inclined to grant any, and to address that
5 matter, and also to address where we are with representation
6 of various named parties.
7 So let me have the plaintiffs proceed first. You
8 can go ahead.
9 MR. GINGOLD: Your Honor, you may not recall who I
10 am, but I am Dennis Gingold, and I am lead counsel for the
11 plaintiff.
12 We have been before you now for five and a half
13 years. For a year and a half now, we have motions for orders
14 to show cause outstanding. There have been recommendations
15 by the special master for contempt.
16 First with regard to Mona Enfeld with regard to the
17 retaliation, in violation of an anti-retaliation order that
18 was drafted by the government and moved by the government.
19 We have violations of an anti-reprisal order that
20 was entered by the special mater in order to address the
21 palpable fare that he found held by Department of the
22 Interior employees regarding their ability to speak
23 freely with this court and the judicial officers of this
24 court.
25 Recently, as recently as this Sunday, the special
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
10
1 master filed a supplement to his recommendation on contempt
2 with regard to Secretary Norton, and with regard to others,
3 and recommended criminal contempt proceedings be brought, and
4 further confirmed the potential culpability of the Justice
5 Department lawyers and other lawyers in this case.
6 During the course of this five and a half years,
7 Your Honor, we have had three Secretaries held in contempt,
8 and and Assistant Secretary held in contempt. Nothing has
9 changed.
10 From the day this case was filed you have been
11 lied to, you have been misled, and our clients have been
12 abused. During the course of this period of time, with a
13 class of approximately 500,000 trust beneficiaries, many
14 people have died, and they are never going to see their trust
15 benefits.
16 The failure of this government to do anything that
17 it has promised is historical with regard to the trust
18 beneficiaries, Your Honor. In our opinion it is
19 unprecedented with regard to the court.
20 We have never seen any situation where so much has
21 been misstated, where this court has been so misled, where
22 this court, in fact, has been treated like trust
23 beneficiaries who are Indians.
24 We believe that this has to stop. We believe that
25 the integrity of this litigation has been compromised. We
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
11
1 believe that it can be rehabilitated, and we believe that it
2 is time to move forward.
3 Three years ago, Your Honor, we were in this
4 courtroom, on November 23rd and November 24th, 1998, to
5 discuss a number of issues including the setting of a trial
6 date.
7 During the course of that two days, things
8 changed, and contempt became more significant when it
9 became evident that representations that had been made to you
10 were false with regard to production of documents under
11 paragraph 19 of the first order of production of November
12 27th, 1996.
13 Since that time there has been -- and by the way,
14 since that time, November 23rd, 1998, based on the evidence
15 that was presented and the findings of Special Master
16 Ballerin, documents began to be destructed -- destroyed at
17 the Department of the Treasury.
18 We had a contempt trial in January of 1999. In the
19 pretrial conference it was revealed that the then special
20 trustee was forced to resign because he was interfered by the
21 Secretary, and others, in his job. Joe Christi was stripped
22 of his responsibilities. John Miller was stripped of his
23 responsibilities.
24 During that time, documents were being destroyed at
25 the Department of the Treasury. After Your Honor had a
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
12
1 trial, and the defendants were held in contempt, and the
2 lawyers moved to remove their names from the order to show
3 cause, documents continued to be destroyed.
4 Some time in May the Justice Department was
5 informed that, by the way, we destroyed documents from the
6 time of the November 23rd, 1998 hearing through the contempt
7 trial of Secretary Reuben.
8 A special master was appointed through this court's
9 orders in February of 1999. Since that time the special
10 master has been obstructed.
11 As a special trustee, Mr. Homan was obstructed, but
12 this time more vigorously, through frivolous motions that
13 were filed, through failure to comply with directives of the
14 special master, through motions to disqualify the special
15 master.
16 Now it is obviously lied because of the almost
17 abject failure to do the job that they claimed they were
18 doing, and to do what they represented to this court that
19 they would absolutely do.
20 You may recall during the trial in the summer of
21 1999, Your Honor, that there was a discussion on July 14th of
22 1999 where Mr. Holt was cross examining Mr. Lamb, and there
23 was a plaintiffs' exhibit that was being discussed which had
24 paraphrased, Ben Franklin, where it said, we must hang
25 together or we will hang separately.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
13
1 This court itself participated in the examination
2 of Mr. Lamb and asked him what it meant, and at one point
3 this court pointed out that it was maybe a prediction on the
4 part of Mr. Lamb or Mr. Cohen, whoever was the author of that
5 statement, and Mr. Lamb disagreed.
6 He claimed that it wasn't a prediction. He was
7 pointing out that at that point in time if they don't hang
8 together, and they didn't complete trust reform, there would
9 be shame on the Department of the Interior as this court
10 might recall.
11 Your Honor, there is shame on the Department of the
12 Interior. There is shame on the Department of Justice, and
13 there is shame on the Department of the Treasury.
14 Paragraph nineteen documents have not been
15 produced. As a matter of fact, documents continue to be
16 destroyed. Documents continue to be lost. Projects that are
17 represented to be completed were either no projects at all,
18 which were just more of the fraud perpetrated on this court,
19 or there were projects that were absurd projects. One
20 project could be, we will convene a meeting to discuss the
21 subject. Meeting ended, project completed.
22 Deployment of the trust has been redefined to
23 satisfy the needs and requirements of avoiding this court's
24 oversight. Deployment is not implementing trust reform.
25 Deployment isn't a system like TAAMS working.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
14
1 Deployment is now stating that the system is a
2 system of record, that the system of record is now the system
3 that will be relied upon. But Your Honor, it isn't the
4 system of record.
5 The data hasn't been cleaned up. The data is
6 insecure. Things are worse today than it was on June 10th,
7 1996. But we have learned in the course of this five and a
8 half years, Your Honor, is there is nothing that defendants
9 have said that is true.
10 Whether they have to perpetrate this fraud on this
11 court, or they perpetrate it on the Court of Appeals, as Mr.
12 Nessi pointed out in his February 23rd, 2001 memorandum,
13 discussing the implosion of trust reform, what has been going
14 on in this court is posturing before this court.
15 We don't think that a trustee has the right to
16 posture before this court. We don't think that a trustee has
17 the right to abuse trust beneficiaries, to lose their assets,
18 to put their assets at risk, to destroy their documents, and
19 claim the destruction of documents is necessary for the
20 security of the documents, Your Honor.
21 We have seen in this case documents altered,
22 altered at the instruction of attorneys. We have seen in
23 this case actions taken by government officials, not in
24 conformity with what this court required with regard to
25 truthful representations in quarterly reports and
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
15
1 otherwise, but to conceal from this court the abject failure
2 to do what this court ordered them to do, and they promised
3 to do.
4 We have seen orders regularly violated, orders that
5 were not only consented to by the defendants, but were
6 drafted by the defendants' counsel in opposition by
7 plaintiffs because they weren't strong enough. They still
8 violate those orders, Your Honor.
9 We have now gone through several sets of lawyers in
10 this case. Each time the situation becomes worse. I can
11 recall --
12 THE COURT: And each set of lawyers comes in and
13 moves to enlarge time.
14 MR. GINGOLD: Enlarge time, delay, delay, delay,
15 delay. Never an end in sight.
16 The reason is, Your Honor, nobody has been held
17 personally accountable. It is not their money. They get
18 their pay checks. It is not their pension that is being
19 lost.
20 During the course of the investigation of the
21 problems associated with part of the system, the electronic
22 system, the question was asked by the special master of the
23 government's experts: "Would you put your pension money in
24 this system?" And the answer was, "No."
25 Why is it good enough for the trust beneficiaries,
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
16
1 Your Honor, and it is not good enough for the lawyers in this
2 case? Why is it good enough for the trust beneficiaries and
3 not good enough for the Secretary of the Interior? There is
4 something wrong here.
5 This court was affirmed unanimously, to the
6 surprise of the government, and not only affirmed, but it was
7 restated, the malfeasance practice by the defendants in this
8 case.
9 That February 23rd decision hasn't affected
10 anything. The malfeasance continues. More bull is presented
11 to this court.
12 Our clients cannot afford more delays. Your Honor
13 at one point during a discussion with counsel in open court
14 pointed out that he was not going to wait until the next
15 administration to try phase two.
16 Your Honor, in many respects they have run. They
17 have delayed this through an administration. They are going
18 to try to delay it through another administration. Nobody is
19 held accountable. Nobody wants to be held accountable, and
20 nobody has the courage to stand up and say, stop, it is
21 enough.
22 Mr. Kiefer has pointed that out in four brilliant
23 reports that he has filed. We have found that particular
24 action taken in the last six months, combined with what the
25 special master has done, to be the most significant period of
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
17
1 time in this case.
2 Everything that the plaintiff has been saying for
3 five and a half years has been confirmed by Mr. Kiefer and
4 Mr. Ballerin. On one hand it is nice to be confirmed. On
5 the other hand, Your Honor, this is a pathetic situation we
6 are in today.
7 Ms. Cobell has travelled 2,500 miles to get here
8 for this hearing, under very difficult circumstances, and
9 none of the defendants could even take their limousine up
10 Pennsylvania Avenue, driven for them, for five minutes, to
11 take this case seriously.
12 This is the same problem that this court pointed
13 out during the contempt trial. They don't listen to you,
14 Your Honor, and they don't listen to the plaintiffs.
15 There is not doubt that this is going to get
16 messier, because there is no doubt that the government is
17 acting in accordance with standard procedures. You have
18 John Marshall award winners here, Your Honor, who
19 participated in this. The highest award given by the
20 Department of Justice.
21 We hope that we are not going to have to see a
22 repeat of this, but we expect we are going to. We noticed
23 yesterday, as a matter of fact, the Environment of Natural
24 Resources division is actually advertising in Legal Times for
25 an experienced class action litigator to handle this case.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
18
1 How many more lawyers are we going to see?
2 Now that we have this -- and by the way, Your
3 Honor, we don't have 39 people who are subject to potential
4 contempt here. We probably have upwards of fifty, because
5 in the motions that have been outstanding since August,
6 there are individuals who were not included in the last
7 motion.
8 Treasury issues haven't even been addressed from
9 the document destruction that went on that was not fairly
10 described by Mr. Tyler in the Tyler report, and that was
11 exposed by the special master in his report -- in his two
12 reports with regard to Treasury.
13 What action has been taken against the people
14 responsible for destruction, Your Honor? Nothing. What
15 action has been taken with regard to the lawyers who have
16 covered up the destruction, Your Honor? Nothing.
17 We are here, and we will be here another five and a
18 half years from now unless we move this case forward, and we
19 believe that there are complicated issues with regard to
20 contempt.
21 We believe that there are issues that may be
22 necessary for certain individuals in a personal capacity to
23 have a week or two, perhaps. We don't believe that the
24 government, as a defendant in this case, and we don't believe
25 individuals in their official capacity need any more time.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
19
1 They are the ones who have done this. They know what they
2 have done, Your Honor.
3 Our papers have been filed in this court for so
4 long that they are starting to grow mold. We have had a
5 motion to reopen and sanctions pending with regard to what we
6 claimed on November 30th of 2000 was a fraud perpetrated on
7 this court. It has been proven that that is the case.
8 We need to move forward. It is critical that we
9 move forward. It is critical that we are able to move
10 forward with regard to the receiver and with regard to the
11 phase two issues immediately.
12 We believe that we can go to trial still with
13 regard to January 8th on the phase two issues, Your Honor.
14 We believe that the receiver can proceed at the same point in
15 time.
16 We are not as many lawyers as our opposition. You
17 see we are a handful. Your Honor, we will be prepared to
18 move forward. They can bring in another thirty, or forty, or
19 fifty lawyers. It doesn't make any difference. We will work
20 24 hours a day if we have to to move forward. Our clients
21 are entitled to it, and we are asking you to do it, Your
22 Honor.
23 We know that this court has a short time frame
24 because of other responsibilities, so we are attempting to
25 prioritized what we need to do.
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
20
1 There are contempt issues that have been fully
2 briefed. The Mona Enfeld contempt issue has been fully
3 briefed. There is no reason for either Civil or the United
4 States Attorney's Office to have much input into that. It
5 has been done.
6 Mr. Kiefer's reports, but for reports four and
7 five, and I think that the comments are due for report four
8 today, five which is what we characterize as a supplement I
9 think is due on Thursday -- those are the only comment
10 periods that still remaining outstanding with regard to Mr.
11 Kiefer's reports.
12 The other three have been -- the time period has
13 expired. And in this circuit, you have no right to reserve
14 comments when there isn't an order. This is akin to the
15 Magistrate situation where whether or not there is a
16 different review standard from that of the special master,
17 there is not a different standard with regard to the time
18 period.
19 They did not seek leave of this court, they did not
20 file their comments, so neither Civil nor the United States
21 Attorney's Office has any need for further time in that
22 regard, either.
23 Now we believe that discrete contempt can move
24 forward. We believe that the contempt that is a part of the
25 motion that we filed with regard to the Kiefer one report,
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
21
1 which deals with the accounting, the Federal Register
2 process, the -- what we consider to be, and we believe what
3 Mr. Kiefer has confirmed to be something that was a bogus
4 process that did nothing but harm our clients. We believe
5 that they can move forward simultaneously, Your Honor, as
6 well.
7 We think that there is plenty of room to get a
8 lot of work done, and a very short period of time.
9 Virtually every single issue in this case has been briefed to
10 death.
11 The fact that there are new lawyers coming in in my
12 opinion, Your Honor, is irrelevant. It is the same team of
13 lawyers. It is the same Justice Department. It is the same
14 client. It is self-inflicted, and this court has pointed out
15 many times, when the harm is self-inflicted, there is no
16 relief that anyone is entitled to.
17 Lastly, Your Honor, what has come across in the
18 five years of this litigation is clear that the government --
19 the executive branch does not believe it is a real trustee;
20 does not believe that the best interests of the trust
21 beneficiaries are important.
22 Self-interest, power in control over programs,
23 budget issues, concealment -- that is what has been going on
24 in this case.
25 Why is the government fighting still, Your Honor?
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
22
1 After the Circuit's decision, and your decision, why is the
2 government insisting that they really don't have a trust
3 responsibility?
4 Why have they asked Congress for 614 million
5 dollars in funds to reform a trust if they haven't reformed
6 the trust? Why do they spend tens of millions of dollars
7 defending the position that they don't have to do this, that
8 this court can't tell them what to do, that nobody can tell
9 them what to do? It is because they don't believe that this
10 is a trust, Your Honor.
11 All of this is relevant to what we come down to
12 today. Unless this court does something sooner than later,
13 more assets are going to be lost; more documents are going to
14 be destroyed; more lies are going to be present to this
15 court; more orders are going to be violated; and more of our
16 clients are going to die.
17 It is time, Your Honor. Let's go forward.
18 THE COURT: Mr. Nagle.
19 MR. NAGLE: Your Honor, the United States
20 Attorney's Office, those of us here this morning from the
21 United States Attorney's Office have, in a period of time
22 measured in days, come to be involved in this matter for the
23 purposes I articulated at the outset of this hearing this
24 morning.
25 In the course of our familiarizing ourselves with
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
23
1 the history of this case --
2 THE COURT: And why was that? Nobody took all of
3 these contempt motions seriously until a few days ago?
4 MR. NAGLE: Your Honor, these contempt motions
5 cannot be taken in any way other than with the utmost
6 gravity, and it is the recognition of those of us now charged
7 with responding to the most recently filed motions for orders
8 to show cause by the plaintiffs, it is our recognition that
9 this court has and will continue to hold government officials
10 and their attorneys accountable that gives rise to our
11 request for additional time --
12 THE COURT: Is that some sudden revelation that I
13 do that?
14 MR. NAGLE: No, Your Honor. No, it isn't.
15 THE COURT: Haven't I done that always, in all of
16 my cases?
17 MR. NAGLE: Yes you have, Your Honor, and we have
18 never doubted it. We find ourselves, however, looking at a
19 case that, as this court well knows, and as the plaintiffs'
20 counsel just articulated for the court, has covered a long
21 course of events for a period of five years, or perhaps even
22 a little more than five years.
23 And I heard in plaintiffs' counsel's remarks just
24 now a theme that is echoed in their papers, and a theme that
25 emerges from this court's published opinions and unpublished
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
24
1 interlocutory orders.
2 As we review it, we see this theme time and again,
3 a concern about accountability, a concern about accuracy, a
4 concern about completeness of statements made in this court
5 and actions taken outside this court, and the manner in which
6 those actions are later described to Your Honor and the
7 plaintiffs and their representatives.
8 We are undertaking to respond to their most
9 recently filed motions for order to show cause with a deep
10 recognition and an absolutely unwavering respect for this
11 court's intention to insure that those persons in government,
12 now and previously, are accountable for what they say and
13 what they do.
14 We recognize that we, as we undertake this
15 representation, Your Honor, are no less in that
16 position, and that is what gives rise to our request for more
17 time.
18 It does no one any good for responses to be
19 presented to this court that are based on anything less than
20 a thorough inquiry, an exhausting review of relevant
21 documents, a questioning process that gets into hard
22 questions and difficult issues, and Your Honor, it is simply
23 irresponsible for a group of lawyers to come into a case and
24 pretend that they are capable of doing something in less than
25 at time frame that they, in their best professional judgment,
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1 believe is responsibly necessary to carry out the task, and
2 that is why we are asking for this time.
3 I heard plaintiffs' counsel a moment ago
4 acknowledge, Your Honor, that there are complicated issues
5 regarding the contempt requests that they have pending before
6 this court, and we are certainly not going to disagree with
7 that characterization.
8 Our goal, Your Honor, is to move as promptly as we
9 responsibly can consistent with our professional obligations
10 under the Rules of this court and the Rules of Professional
11 Conduct of the bar organizations to which we belong, and the
12 standards of the Department of Justice.
13 I heard everything that the plaintiffs' said. We
14 have reviewed, obviously, this court's order holding to
15 former cabinet officers, now former cabinet officers in
16 contempt, and I want to assure the court that we are viewing
17 all of these matters with the utmost possible gravity.
18 But it is that gravity, Your Honor, and it is the
19 need to ensure the accuracy and the completeness of what is
20 presented to this court that gives rise to that request for
21 additional time.
22 We have tried to calibrate that request, Your
23 Honor, as I said a moment ago, as carefully as we can,
24 consistent with what we believe to be the time responsibly
25 necessary to carry out our professional obligations and to
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1 insure that the record before this court is as complete and
2 as accurate as the human mind can make it.
3 That is why Your Honor received from the United
4 States Attorney's Office yesterday our request to expand the
5 deadline for responding to the plaintiffs' motion filed
6 October -- I believe it was October 19th to December 19th.
7 THE COURT: All right. Anything else you want to
8 say?
9 MR. NAGLE: Only this, Your Honor. There are, as
10 the court obviously recognizes from the number of attorneys
11 that have appeared here this morning, there are issues of
12 coordination.
13 I do not say that to invoke some bureaucratic
14 talisman. I say it again, Your Honor, with a keen
15 recognition of the professional obligations that the lawyers
16 now coming into this case are going to have to meet.
17 We have tried to articulate today as clearly as we
18 can exactly what the role of the United States Attorney's
19 Office will be, and now the Civil Division of the Department
20 of Justice.
21 We have tried to articulate that with the brightest
22 lines we can as the case currently stands before us. As we
23 go forward, Your Honor, I would just ask the court to
24 recognize that the manner in which we are going to assure the
25 court of accountability and accuracy and completeness will
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27
1 necessarily entail communication and coordination not only
2 among a fairly sizable number of persons presently in
3 government, and now no longer in government service, but also
4 among a sizeable number of attorneys.
5 It is our goal, Your Honor, and it is a part of the
6 reason for asking for additional time to insure that that
7 coordination gets the most accurate and complete possible
8 presentations before this court.
9 I don't have anything further unless you have
10 additional questions for us at this time.
11 THE COURT: Well, I take it you are not in the case
12 long enough to even begin to address why I was not told that
13 TAAMS was failing before I ruled in December of 1999 after
14 the testimony was that everything was on track, and then they
15 had a meeting over at the Department of the Interior and
16 actually had an agenda item, as my court monitor pointed out
17 to me for the first time.
18 I learned a few months ago they had an agenda item,
19 do we tell Judge Lamberth about this? And the Chief of Staff
20 to the Secretary decided no, we don't tell the Judge about
21 this.
22 The court monitor did not talk to Secretary
23 Babbitt, so he doesn't know whether Secretary Babbitt told
24 the Chief of Staff, no, don't tell Judge Lamberth about it.
25 But that fact alone is so contemptuous of this court that I
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1 don't understand what it is that you think you are going to
2 do at this contempt trial?
3 The very idea that you have a meeting, you have an
4 agenda, you discuss, do we tell the court something? That
5 alone would be enough to tell any lawyer, yeah, you had
6 better tell the court.
7 And yet they decide that we won't let Judge
8 Lamberth know about this? We will let him issue his ruling,
9 and then they can see in all the subsequent reports that
10 TAAMS was consistently failing?
11 What facts do you need to be able to get to be able
12 to argue that? I think you had better throw yourself on the
13 mercy of the court and come down here and have your trial
14 rather than to try to make up new facts, hadn't you?
15 MR. NAGLE: There will be absolutely no making up
16 of facts in any respect, Your Honor, and I am not, as I think
17 the court's predicate to your question to me just now
18 anticipated, I am not standing here this morning on October
19 30th prepared to respond fully to all of the questions you
20 have.
21 But in making that statement, Your Honor, I want to
22 reassure the court that we recognize the gravity of what you
23 have said just now, and the gravity of the statements in the
24 special monitor reports, the court monitor reports, excuse
25 me, on that particular point.
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1 I will just return to my theme and reiterate, Your
2 Honor, accuracy and completeness is our -- is our objective
3 and our obligation here, and that is why we are asking for
4 this time.
5 THE COURT: Well, let's take the second issue.
6 The court monitor reported to me that Secretary Babbitt
7 decided that he would just ignore my order and not do the
8 historical accounting. He would just pick out a statistical
9 sample.
10 He did this in a decision memo. He never told me
11 about it, but he did it, and then Secretary Norton comes in,
12 and the very first action she took touching this case was a
13 few days after the Court of Appeals affirmed me, she
14 reaffirmed Secretary Babbitt's decision to totally ignore my
15 order and not do the historical accounting, just do the
16 statistical sampling, in absolute violation of my order.
17 What is there left to try regarding Secretary
18 Norton? Her first faction was so clearly contemptuous, I
19 don't understand what it is that we are going to try. Do
20 you?
21 I mean the facts as admitted, since there is no
22 objection to those facts reported in the court monitor's
23 report, clearly show it, don't they?
24 MR. NAGLE: I believe, Your Honor, that the
25 question of the statistical sampling has to be for purposes
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1 of the possible imposition of the sanction of contempt
2 against present or former government officials, has to be
3 assessed in light of what this court ruled and what the Court
4 of Appeals said, and I respectfully submit, Your Honor, that
5 when the question is contempt, as distinct from resolution of
6 merits phases of the case, the wording of this court's
7 orders, the articulation of this court's orders reiterated in
8 the Court of Appeals decision is a very important part of the
9 picture.
10 Before we get to a determination by this court that
11 contempt should be imposed, did this court's order, or the
12 Court of Appeals' opinion arising from this court's order,
13 clearly reject altogether any possibility of some sort of
14 statistical methodology?
15 Was that so clearly rejected in sufficiently
16 unambiguous and unequivocal terms, Your Honor, to warrant the
17 imposition of a contempt sanction for the actions and
18 statements of present and former Interior secretaries that
19 you have just referred to, and that is an issue, Your Honor,
20 that --
21 THE COURT: It never dawned on them to come back
22 and ask the court? It never crossed their minds?
23 MR. NAGLE: I don't know that, Your Honor, this
24 morning.
25 THE COURT: That might go to whether or not they
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31
1 are in contempt. I mean I am not ruling today whether they
2 are in contempt, but I think that there are really serious
3 questions presented here. When the court order on its face
4 said what it said, when you just look at what Secretary
5 Norton signed, I don't know how facially she is going to
6 explain that to me.
7 MR. NAGLE: We will endeavor, Your Honor, to
8 provide the accurate, complete response that I referred to in
9 my earlier remarks, and I will again reassure the court that
10 the gravety with which Your Honor views that question, and
11 the others framed by the plaintiffs' motions, is not under
12 estimated by anyone.
13 THE COURT: Why would Secretary Norton then send me
14 this latest report with all of the game playing that went on
15 with the latest report about the people at the Interior won't
16 certify it, so the Justice attorney takes an oral
17 certification from various sub-project managers, because
18 there is no project manager for trust reform, so they have to
19 go to all of the sub-project managers.
20 What was she doing? What was she thinking? I
21 don't understand it. Why would she allow that kind of a
22 report to be presented to the court on her behalf by a
23 Justice trial lawyer that allegedly calls all the sub-project
24 managers, and then the court monitor goes out and talks to
25 two of them and says they never even talked to the Justice
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
32
1 trial lawyers, so they couldn't have orally certified it?
2 What was the Secretary thinking? Did she think about it at
3 all?
4 MR. NAGLE: Those are the inquiries we are
5 undertaking to make, Your Honor.
6 THE COURT: All right.
7 MR. NAGLE: Thank you.
8 THE COURT: Mr. Kohn, do you want to speak on your
9 issues?
10 MR. KOHN: May it please the court, much of what I
11 have to say is similar to what Mr. Nagle had to say. We take
12 very seriously the responsibilities that we have as officers
13 of the court.
14 THE COURT: Well, the new team of lawyers always
15 takes it seriously. If you weren't the third team of lawyers
16 I might take you seriously.
17 MR. KOHN: Your Honor, we have a responsibility to
18 be accurate, and to be --
19 THE COURT: I know. Every team of lawyers that has
20 come in here from Justice has told me that, and every team
21 has miserably failed so far. I hope you don't fall in that
22 category.
23 MR. KOHN: Well, Your Honor, without sufficient
24 time to do the inquiry into the difficult facts, the
25 difficult legal issues, and the history of this case, it
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33
1 would be very difficult to fulfill that responsibility, and
2 that is precisely why we have asked for the enlargement of
3 time, to permit ourselves an opportunity to become
4 knowledgeable and to fulfill that opportunity.
5 In addition, with respect to the motion for the
6 appointment of a receivor, I think that there are very
7 difficult legal issues, separation of powers issues, as well
8 as factual issues, which we have not had an opportunity to
9 research and to investigagte, and that is why we have,
10 respectfully, requested an enlargement of time so that we can
11 go about that as promptly as we possibly can and respond to
12 the court responsibly.
13 THE COURT: All right, thank you Mr. Kohn.
14 MR. KOHN: Thank you, Your Honor.
15 THE COURT: Do any other individual non-parties
16 want to speak?
17 (No response.)
18 THE COURT: All right, Mr. Gingold.
19 MR. GINGOLD: When does the government want to go
20 to trial, Your Honor? Never? We heard in your chambers
21 government counsel telling you maybe in fifty years they
22 will be able to go to trial with regard to the failure to
23 issues.
24 We saw Mr. Kiefer's report, that date of clean-up,
25 which is; another one of the great lies that has been
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
34
1 perpitrated, that some areas might finish their clean-up in
2 forty years. Some areas might finish their clean-up in
3 twenty years. Some areas might finish in ten years. When
4 are they going to go or be ready to go to trial, Your
5 Honor?
6 This court pointed out quite clearly that they were
7 not going to delay trial on phase two issues. It was futile
8 to delay.
9 Your Honor, every bit of information that is
10 discsovered -- not easily discovered, Your Honor,
11 demonstrates that they have no reliable data base, that all
12 the information in their system cannot be attested to, that
13 no expert could testify based on that information.
14 Plaintiffs have been required to spend millions of dollars
15 preparing for this because we have been saying, and saying
16 the same thing.
17 They do not have reliable information. They have
18 been destroying the information. They have been corrupting
19 the information. Let's go forward and establish the account
20 balances.
21 Mr. Kiefer's report relative to the statistical
22 sampling charade is critical towards going forward. There is
23 no reason that there can't be a separate trial with regard to
24 contempt on that particular issue. We filed a separate
25 motion for that, Your Honor. That is clearly discrete.
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35
1 Based on the reports of the special master and the
2 court monitor, Your Honor, our colleagues on this side of the
3 room can spend the rest of their lives trying to get truthful
4 information.
5 There is no evidence that they are ever going to
6 get it, and we think that enough, is enough, is enough, and
7 moveover, Your Honor, there are going to be more motions for
8 orders to show cause being filed, including with regard to
9 the Treasury Department, because paragraph nineteen still is
10 not satisfied.
11 Indeed, Your Honor, unless something is done with
12 regard to these issues in the immediate future, there is
13 another order that was violated with regard to Treasury's
14 propsal to present the information regarding its satisfaction
15 of paragraph nineteen where it recommended, and the court --
16 or the special master accepted that discovery with regard to
17 plaintiffs would be limited to interrogatories, that we were
18 sgiven specific time periods within which to provide
19 interrogatories, within which they are to respond, and within
20 which we would file our opposition to the motion to purge
21 contempt.
22 Your Honor, in the period of time that was
23 established they have requested and we have consented to that
24 was set in an order. We provided the interrogatories, and
25 they didn't respond to the interrogatories. Not one answer
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
36
1 to an interrogatory, Your Honor.
2 Paragraph nineteen, the fact that the Treasury
3 Secretary and Interior Secretary have been in contempt of
4 that for years doesn't make any difference does it, Your
5 Honor?
6 Nobody is doing anything here. This has got to
7 stop.
8 Now we also went through -- by the way, we were
9 restricted with regard to our discovery, with regard to
10 paragraph nineteen. That was during the period of time that
11 there was in effect a stay on discovery. We agreed to that
12 limited basis.
13 Everybody knows in order to get a reasonable
14 response of interrogatories, which are frequently manipulated
15 -- the answers to which are frequently manipulated by
16 counsel, that they be prompt -- Your Honor, those
17 interrogatories were filed in July. They were supposed to be
18 responded to within two weeks. This is October 30th. There
19 is no response.
20 I might also say, Your Honor, we do have discrete
21 contempt issues. We believe contempt trials could go
22 forward. We believe the last one, the defendants, if they
23 want to take an extra week or two to respond. We believe the
24 others should be set and go forward immediately.
25 It was done very similarly with regard to the first
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1 contempt trial, Your Honor. That trial was, I think, a
2 revelation to this court with sregard to the various
3 failures. And may I also say, Your Honor, we heard very
4 similar mea culpas from the Justice Department lawyers who
5 came in on that team.
6 We heard the same situation. We are not going to
7 do what our colleagues have done. This time we are going to
8 do it right. This time we are going to tell you the truth,
9 Your Honor.
10 With all due respect, Your Honor, plaintiffs do not
11 believe what the government has to say. We believe it is
12 critical that this court step in and do that as quickly as
13 possible.
14 We believe that the contempt trial that is
15 necessary with regard to setting phase two, which is the
16 January date which we requested, can also go through
17 discretely and handled properly.
18 And, Your Honor, to the extent that any extra time
19 is given to the defendants, plaintiffs would like to take
20 discovery. If they are going to make inquiries into the
21 state of mind of the Secretary of the Interior, or the
22 Assistant Secretary, or the former Secretary, plaintiffs
23 would like to take depositions supervised by the special
24 master.
25 To the extent that they want to delay, Your Honor,
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
38
1 plaintiffs should be entitled to take discovery. We are not
2 dealing with sordinary decisions here. We are not dealing
3 with a Secretary who is entitled to deference.
4 They have been stripped of their Chevron deference,
5 Your Honor, because this is a fiduciary matter. Therefore,
6 Your Honor, while we don't believe any extra time is
7 necessary, because you are going to get the same answers
8 whether or not they take two weeks, whether or not they take
9 another five and a half years.
10 If you give them another couple of weeks, or you
11 give them whatever time they are seeking for some of the
12 issues, Your Honor, plaintiffs would seek to take
13 depositions, depositions including the Secretary and her
14 lawyers.
15 So therefore we urge you to deny their requests for
16 enlargement of time.
17 Your Honor, we still haven't received their motion.
18 We got a call this morning from the secretary for Mr. Harris,
19 that they would fax it to us this morning, and when we left
20 our offices we still have not received it, so we haven't even
21 seen their motion yet, Your Honor.
22 This is not the first time plaintiffs don't receive
23 service. This is not the first time plaintiffs don't get
24 what is represented. This is not a good way to start, Your
25 Honor, when they are argueing a motion for enlargement that
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39
1 has never even been served on plaintiffs.
2 But nevertheless, this is business as usual. We
3 implore this court to take every action necessary to insure
4 that the trust responsibilities owed by the United States to
5 individual Indian trust beneficiaries are discharged, that a
6 receiver be appointed, that the special master's powers be
7 reinforced so instruction by individuals such as Mr. Rothman
8 doesn't continue.
9 Mr. Rothman, if you recall, came in here when Joe
10 Christi was ridden out of town on a rail because he told this
11 court the truth, that documents weren't being produced under
12 instructions from counsel.
13 Now Mr. Rothman has been in place for over two
14 yeras. Documents haven't been produced, and documents
15 haven't been preserved.
16 Where are we? We are nowhere, Your Honor, and it
17 is time to take action. Thank you very much.
18 MR. NAGLE: Your Honor, may I be heard?
19 THE COURT: Yes.
20 MR. NAGLE: Just very briefly on two very discrete
21 points raised by the last remarks of plaintiffs' counsel.
22 Thank you, Your Honor.
23 My colleague, Mr. Harris, informs me that he did
24 attempt, and perhaps there was some transmission problem to
25 facsimile transmit our motion for enlargement to plaintiffs'
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40
1 counsel. Obviously, we will get a copy in his hands as soon
2 as that is technilogically feasible today.
3 With respect to the suggestion on taking discsovery
4 associated with the contempt issues, Your Honor, we would
5 respectfully submit that the most orderly and efficient way
6 to proceed would be to permit us to file the responses to
7 plaintiffs' motions for show cause orders, and obviously give
8 the plaintiffs an opportunity to reply to those.
9 We would submit that the filing of our response and
10 their reply will sharpen the issues for the court, and on
11 that basis their request for discovery could then be
12 considered.
13 Then if there is a need for discovery, the contours
14 of that discovery, and the person or persons from whom that
15 discovery would be obtained, could best be assessed at that
16 point.
17 That is all I have, Your Honor. Thank you.
18 THE COURT: Well, I probably agree with that
19 notion, because I think just authorizing discovey now would
20 just create an objection to virtually every question asked.
21 So it doesn't advance the ball very much.
22 The defendants' motion to enlarge time is granted
23 in part and denied in part. It is granted until November
24 15th, and denied in all other respects.
25 I will look at any reply filed shortly tehreafter.
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41
1 I would think counsel should keep the date of December the
2 1st available for further proceedings herein, which I will
3 specify after I get the response of the government, and I
4 will specify what those other procedures will be.
5 We may start at least if I review and decide on the
6 Enfeld matter before that day, and maybe one of the others
7 that is already ripe before that day, but I think we can get
8 the proceedings started on December 1st.
9 MR. NAGLE: Your Honor, there is one other matter.
10 MR. GINGOLD: One question. December 1st is the
11 weekend.
12 THE COURT: Oh, all right. I thought it was a
13 Friday.
14 MR. GINGOLD: We would be willing to do it on
15 Saturday.
16 THE COURT: I understand. I understand. I would
17 have in mind then November 30th.
18 Go ahead, Mr. Nagle.
19 MR. NAGLE: Thank you, Your Honor.
20 It is purely a scheduling matter. You have granted
21 our motion to November 15th. Our predecessors had requested
22 an extension of time to November 10th in connection with the
23 motion filed by the plaintiffs in August of 2001.
24 For the sake of streamlining the briefing process,
25 Your Honor, if the two responses could be submitted to the
SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
42
1 court, and we will hand serve plaintiffs on the 15th, I think
2 that that would certainly make things more efficient from our
3 side and move this process forward more quickly.
4 THE COURT: That is only as to the August motion.
5 MR. NAGLE: There was a motion -- a motion for
6 extension of time previously submitted in connection --
7 THE COURT: Which I never granted.
8 MR. NAGLE: I beg your pardon, Your Honor?
9 THE COURT: Which I never granted.
10 MR. NAGLE: Well, that is correct, Your Honor. We
11 could not discern a ruling in the record.
12 THE COURT: Right.
13 MR. NAGLE: If that could likewise be made --
14 THE COURT: Well, if I had time to have this
15 status, if I hadn't been pulled off by the FISA court, it
16 would have been denied, but in light of my own time problems
17 I will grant it until August 15th -- I mean until November
18 15th as well.
19 MR. NAGLE: Thank you very much, Your Honor.
20 THE COURT: All right, anyone else have anything
21 else you want to say today?
22 (No response.)
23 THE COURT: I will schedule further proceedings
24 after I see what the government files on November 15th. I
25 hope the government in that filing will tell me who is in
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43
1 charge of trust reform for the government, because it is sure
2 not obvious to me that anybody is in charge. If it is
3 allegedly the Secretary, she sure doesn't act like it.
4 (Whereupon, the proceedings in the above-styled matter
5 were adjourned.)
6 - - - - -
7 CERTIFICATE OF COURT REPORTER
8 I hereby certify that the foregoing is a correct
9 transcript in the proceedings in the above-styled matter.
10
11 _____________________________
12 SUSAN PAGE TYNER, CVR-CM
13 OFFICIAL COURT REPORTER
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