Case 1:96-cv-01285-JR Document 3578 Filed 09/04/2008 Page 1 of 2 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

ELOUISE PEPION COBELL, et al., : 

:  
Plaintiffs,  : :  
v.  : :  Civil Action No. 96-1285 (JR)  
DIRK KEMPTHORNE, Secretary ofthe Interior, et al.,  : : :  
Defendants.  : 


MEMORANDUM 

The government may well be correct in its submission 
that a partial final judgment under Rule 54(b), requiring the 
payment of $455.6 million to the plaintiff class but without 
determining the proper allocation of the funds, or establishing a 
distribution plan, or ruling on attorney fees, might be found not 
to be appealable. It is indisputable, however, that my decision 
to award a $455.6 million judgment "involves controlling 
question[s] of law as to which there is substantial ground for 
difference of opinion" and that "an immediate appeal . . . may 
materially advance the ultimate termination of the litigation." 
Of particular importance to the plaintiffs are the two principal 
rulings that drive the dollar amount of the award: that I had no 
jurisdiction in equity to order disgorgement of the “benefit to 
the government” that plaintiffs think was derived from the 
withholding of trust funds, see dkt. # 3573 at 51-58; and that 
the facts of this case did not support application of the "super­
Case 1:96-cv-01285-JR Document 3578 Filed 09/04/2008 Page 2 of 2 
strong presumption" that plaintiffs invoked, see id. at 58-67. A 
third driver of the dollar amount of the award, which may or may 
not be accessible to the Court of Appeals on an interlocutory 
review, was the parties' differing treatment of Osage headright 
funds, see id. at 20-21. And, of course, the government may wish 
to appeal, or cross-appeal, on the threshold question of whether 
I had jurisdiction to award monetary relief against the 
government at all, see id. at 42-51. The order that accompanies 
this memorandum certifies my decision to award $455.6 million to 
the plaintiff class for interlocutory appeal under 28 U.S.C. 
§ 1292(b). Proceedings relating to the issues presented by the 
government [dkt. #3577 at 4 n.3, 14-15] need not be stayed unless 
the Court of Appeals or a judge thereof shall so order.

 JAMES ROBERTSON 
United States District Judge 

- 2 ­
Case 1:96-cv-01285-JR Document 3579 Filed 09/04/2008 Page 1 of 1 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

ELOUISE PEPION COBELL, et al.,  : :  
Plaintiffs,  : :  
v.  : :  Civil Action No. 96-1285 (JR)  
DIRK KEMPTHORNE, Secretary ofthe Interior, et al.,  : : :  
Defendants.  : 


ORDER 

Pursuant to the findings of fact and conclusions of law 
set forth in memorandum opinions of this Court dated January 30, 
2008 [dkt. # 3505] and August 7, 2008 [dkt. # 3573], it is 
ORDERED and DECREED that the plaintiff class recover from the 
defendants Four Hundred Fifty Five Million Six Hundred Thousand 
Dollars ($455,600,000). Because this order involves controlling 
questions of law as to which there is substantial ground for 
difference of opinion, and because an immediate appeal may 
materially advance the ultimate termination of this litigation, 
it is CERTIFIED for immediate interlocutory appeal pursuant to 28 

U.S.C. § 1292(b).

 JAMES ROBERTSON 
United States District Judge