<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. l:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
et al	)
	)
Defendants.	)
INTERIOR DEFENDANTS' MOTION TO STRIKE PORTIONS OF
THE SEVENTH REPORT OF THE COURT MONITOR
THAT REFER TO GOVERNMENT EMPLOYEES AS "CONTEMNORS"
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") hereby respectfully move this Court to strike those portions of the Seventh Report
of the Court Monitor that refer to government employees as "contemnors." Counsel for the
Interior Defendants have conferred with counsel for Plaintiffs about this motion; counsel for
Plaintiffs stated that Plaintiffs oppose this motion.
	In the Seventh Report of the Court Monitor ("Seventh Report"), filed May 2, 2002, the
Court Monitor repeatedly refers to government employees against whom the Plaintiffs have
sought contempt sanctions as "contemnors." See. e.g. Seventh Report at 24 ("This Court has
questioned both the Secretary and the Deputy Secretary on their statements concerning the
present contemnors that consist mainly of DOI attorneys and officials."); j4, at 26 ("A specific
example of that tone deafness is the further testimony of the Deputy Secretary concerning the
role played by one of the attorney conteninors in the decision-making process on the
reorganization.")' id at 27-28 ("[A particular Interior attorney] was.., a contemnor central to
<< COB0000002 >>
the core of the Court Monitor's First and Second Reports... ."); iL at 54 ("The Secretary and
Deputy Secretary have testified that they continue to rely upon at least one of these
conte~ors... to provide them with the 'history' of trust reform and statutory and legal
precedent."). In a May 7, 2002 letter, the Department of Justice advised the Court Monitor that
the references in the Seventh Report to government employees as "contemnors" were "wholly
improper." $~ Letter from Sandra P. Spooner, Deputy Director, Department of Justice, to
Joseph S. Kieffer, III, Court Monitor (May 7, 2002) (Exhibit 1). The letter noted that, although
Plaintiffs have sought contempt sanctions against certain individuals, the employees have
vigorously denied any misconduct and "[t]he statements in [the Seventh Report] that they are, in
fact, contemnors not only unjustly damages their reputations, but also suggests a prejudgment of
this issue that is entirely inappropriate." Id.
	In a letter dated May 13, 2002, the Court Monitor responded that "[t]he Seventh Report
will stand as it is written." See Letter from Joseph S. Kieffer, m, Court Monitor, to Sandra P.
Spooner, Deputy Director, Department of Justice (May 13, 2002) (Exhibit 2). The Court
Monitor stated that "the overall thrust of the Seventh Report's comments about [these
individuals] was that they had not been found liable for any civil or criminal penalties as of the
date of the Report." Id. To support this contention, the Court Monitor quoted the following
statement, which appears on page 79 of the Seventh Report: "Nearly 40 former or current senior
managers, attorneys, and employees of the DOI, BIA, Solicitor's Office, and DOJ are before this
Court on allegations of contempt. j4~ at 3 (emphasis in letter).
	In their Response to the Seventh Report, Interior Defendants strongly objected to the
Court Monitor's use of the term "contemnor" to describe government employees who have not
-2-
<< COB0000003 >>
been held in contempt. ~ Department Of The Interior's Response To The Seventh Report Of
The Court Monitor at 41-45 (filed May 16, 2002). Interior Defendants observed that these
employees have not been held in contempt and that the Court Monitor's offensive reference to
them as "contemnors" "unjustly dam age[s] [their] reputations.., and suggest[s] a prejudgment
of this issue that the Court should not countenance." Id. at 42. Interior Defendants
acknowledged the Court Monitor's May 13, 2002 letter in their Response, but explained that the
repeated references to these individuals as "contemnors" throughout the Seventh Report was not
redeemed by a statement elsewhere in the report that they were "before this Court on allegations
of contempt." See id. at 42 n.16. The Interior Defendants requested that "the Court immediately
direct the Court Monitor to remove from his Report all references to government employees as
'contemnors,' and all passages that presume to prejudge these individuals." Id. at 45.
	A "contemnor" is "[a] person who is guilty of contempt before an instrumentality of
government, such as a court or legislature." Black's Law Dictionary 312 (7th ed. 1999). None of
the employees the Court Monitor describes as "contemnors" has been found guilty of contempt.
A statement elsewhere in the Seventh Report referring to "allegations" of contempt does not
excuse or justify the repeated use of the term "contemnor" to describe these individuals. Because
the Court Monitor's use of the term "contemnor" in the Seventh Report is not only incorrect, but
also highly improper and defamatory, and because the Seventh Report is a public document (one
that has already been published on the Internet, see http:/fwww.indiantrust.comidocuments/
2002.05.02 SeventhReport CourtMonitor.pdf), Interior Defendants now renew their request in
the form of a motion to strike.
.3-
<< COB0000004 >>
	Interior Defendants hereby respectfully request that the Court enter an order to strike from
the Seventh Report the term "contemnor" wherever it is used to describe or refer to any person
who has not been held in contempt.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
	S	P. SPOONER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
CYNTHIA L. ALEXANDER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
-4-
<< COB0000005 >>
IN THE UMTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. I:96CV01285
	)	(Judge Lamberth)
GALE NORTON, Secretary of the Interior et ~L,	)
	)
Defendants.	)
ORDER
	Upon consideration of Interior Defendants' Motion To Strike Portions Of The Seventh
Report Of The Court Monitor That Refer To Government Employees As "Contemnors," any
opposition filed, and the materials and record herein, it is ordered that the Interior Defendants'
motion is GRANTED; and
	IT IS ORDERED that the term "contemnor" shall be stricken from the Seventh Report of
the Court Monitor wherever it is used to describe or refer to any person who has not been held in
contempt; and
	IT IS FURTHER ORDERED that the Court Monitor is directed to substitute for the copy
of the Seventh Report in the record of this case a revised copy from which the term "contemnor"
has been deleted wherever it is used to describe or refer to any person who has not been held in
contempt.
SO ORDERED this _____ day of	, 2002.
ROYCE C. LAMBERTH
United States District Judge
<< COB0000006 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, N.W.
Ninth Floor
Washington, D.C. 20004
Fax (202) 318-2372
Keith Harper, 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
Joseph S. Kieffer, III
Court Monitor
420 - 7th Street, N.W.
Apartment 705
Washington, D.C. 20004
<< COB0000007 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on May 23, 2002 I served the Foregoing Interior
Defendants' Motion to Strike Portions of the Seventh Report of the Court Monitor That Refer to
Government Employees as "Contemnors ", by facsimile in accordance with their written request
of October31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
l7l2NStreet,NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
(202) 822-0068	Washington, D.C. 20004
	(202) 318-2372
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
By fax and U.S. Mail upon;
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
By Hand Delivery upon:
Joseph S. Kieffer, Ill
Court Monitor
420 - 7k" Street, N.W.
Apartment 705
Washington, D.C. 20004
/
Kevin P. Kiigston