IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
__________________________________________ 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. Case No. 1:96CV01285 (RCL) 
(Judge Lamberth) 
)
)
)
)
) 
GALE A. NORTON, Secretary of the Interior, et al.,) 
Defendants. 
)
) 
__________________________________________) 
DEFENDANTS’ NOTICE REGARDING PLAINTIFFS' EMERGENCY NOTICE 
REGARDING THE FAILURE TO DISTRIBUTE TRUST CHECKS 
On October 19, 2004, Plaintiffs filed their Emergency Notice Regarding The Failure To 
Distribute Trust Checks ("Emergency Notice"), accusing the Department of the Interior of 
withholding a trust check from Francelia Phillips, in alleged retaliation for the Court's September 
29, 2004 Order. Had Plaintiffs' counsel conferred with Defendants' counsel in an attempt to 
resolve the issue prior to filing their Emergency Notice, they would have learned that Ms. 
Phillips's check was handled routinely, in the ordinary course of business, and according to 
Interior procedures. 
In response to Plaintiffs' Emergency Notice, and to rebut Plaintiffs' insistence that 
retaliation against Ms. Phillips is "uncontested fact,"1 Defendants file the attached Declaration of 
Michael Hackett, Superintendent with the Bureau of Indian Affairs at the Winnebego Agency in 
1 See Plaintiffs' Emergency Notice Regarding Ongoing Retaliation In Violation Of The 
Court's Orders (filed November 15, 2004) at 1. Nebraska ("Hackett Declaration"). (Exhibit 1).2 The Hackett Declaration proves that Ms. 
Phillips' trust check was processed in the ordinary course of business and that the processing time 
was unrelated to the Court's September 29, 2004 Order. It conclusively establishes that Interior 
did not retaliate against Ms. Phillips and that the allegations in Plaintiffs' Emergency Notice are 
without merit. If, however, the Court decides to make findings of fact concerning Plaintiffs' 
allegations, Defendants' respectfully request that the Court first conduct an evidentiary hearing. 
Respectfully submitted, 
Dated: November 18, 2004 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SANDRA P. SPOONER 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
/s/ Timothy E. Curley 
TIMOTHY E. CURLEY 
D.C. Bar No. 470450 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
2 Exhibit 1 is a redacted version of the Hackett Declaration. Defendants have 
concurrently filed a motion requesting an order to file the complete, un-redacted Hackett 
Declaration under seal. 
- 2 -
CERTIFICATE OF SERVICE 
I hereby certify that, on November 18, 2004 the foregoing Defendants' Notice Regarding 
Plaintiffs' Emergency Notice Regarding the Failure to Distribute Trust Checks 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
11/18/2004 17:05 FAX 2022190559 
NOV-18-2004 
- . - - - - --. 03:31PM - - _- FROM-Bureau o f Indian A f f a i r s 
ELOUISE PEPION COBELL, et d., 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF, COL'Uk3IA 
Plaintiffs 
1 
1 
1 
Defendants. 
I 
GALE NORTON, Secretary 
of the Interior, et al., 
1. 
2. 
3. 
4. 
v, 
I, Michael Haclcett, pursuant to 28 U.S.C. 8 1746 do declan: as follows: 
1 
1 
DECLARATION OF MICl-WI, KACI#:'IT 
T am the Superintendent with f i e Bureau of Indian M k i ~ s at the Winnabago Agency in 
this capaciq, I oversee dl Agency adminjslxative prograhs, including realty opmtions 
002 DO I 
T-567 P. 002/004 F-508 402-878-2943 
U U A LI--*v"u"Y 19.1 L' u;; .' ;I I: k 
No. 1, :96CV01235 
(Judge La.mh&h) 
1, 
1 
1 
I 
1 
and allotment payout procedures. 
The Branch of Administration of the Winnebago Agency receives lwst checks nu ! I C [ I R ~ ~ 
of landowners. Ms. Fmncefia Phillips iS among nummous beiieficinrics fnr whrr. v- 
receive payment checks. Ms. Phillips' clieck is generded undcs the Cc~nservalion 
Reserve Program, which is a program under the Unitcd States Depmlment of Agr.iccitlr.d:: 
(USDA) that distributes payments to place land in cni~serving uses 
These mst checks BIG made out to the BLUE~U orrndian iAi%U-s and only refcrencc 
allotment numbers. Frequently, thc rckrcmxd numbers~gamated by the USDA BTC= 
incorrect. It iS impossible to determine from the fme ofithe check which beneficiaijes arc 
involved 
Upmreceipt, these checks a-e date stmped and encoded into our system by a11 
Authorized Collector. Ma the Authorized Collcctor lo'gs in each :.hcclr ~IYJ umiy'!W 
schedule ofreceipt for each separae check the migjml checlcs are placcd into R sclb fni 
security Teasons and copies are given to the Branch of &ly, wlierc Qic checks nrc 
reconcilcd against the lease contract information to determine lo which nllotlnent ench 
x. 1 
Nebradca. My duties d responsibihties include planning, organizing, Ri;afIing, 
budgeting and directing a variety of programs and services, including realty sewices. hi 
EXHIBIT 1 
Defendants' Notice Regarding Plaintiffs' 
Emergency Notice Regarding the Failure to 
Distribute Trust Checks 11/18/2004 1 7 : 0 5 FAX 2022190559 
NOV-18-2004 03:31PM FROM-Bureau o f I n d i a n A f f a i r s 
5. 
6. 
7. 
8. 
9. 
10. 
11. 
12, 
13. 
14. 
DO I #003 
T-5E7 P.003/004 F-508 402-878-2943 
'41 l - i ! . ' ' r ' 7 1," 1 . ---- ----I-- "1" 
check belongs. 
The roconciliation process may f z h swcla2 days depending on the number af cheeks, the 
level of hctionation for each dotment and whether the USDA numbers a x coi'l"eci- T r 
the date-stamphg process or the process of lease/allotmmr reconcili9i:j.oa is noi. 
completed bythe close ofbwiness, the checks are placed into a!~Gr!rf re r ? ~ ! 11!"!! :.:li;! 
the next business day for security reasons. 
Once the checks have beenreconciled, a bill far collection,^ (wvlich is a docu:~rir[ !,i%~!t 
includes the f01Iowhg: 1) a Special Deposit iisunber, 2) a lease number, 3) a deposit 
number and 4) the amoun~ of rent) is submittad to the Authorized Collector aiid the 
checks and bills for colledoq are fbmarded to the Great Plains Regiaiml Region 
Authorized Collection Officer- 
Tbe collections officer receives and deposis the checks- Once a e checks clem The bauk, 
Aberdean OTFM isSires a CT number, which is a Deposit Ticket Number. Once 1 he 
Winnebago Agency Branch of Redty receives that number, the OECC is authorized LO 
begin the payment process to the interest holders. 
Upon iss-e of that CT number, die Branch of Redty performs n unity check2 which i~: 
a verification of ownmhip to make srm cach payee is receiviq thc propcr pay!ncnt *The 
Branch of Realty then generates the payout files and f ~ 0 n v f l l . d ~ to OTFM for pitynent. 
On October 12,2004, the E d of Administratioii received I 62 checks for Ihc 
Ccmmodity Credii Corporation Comervatioi;l Rcseive Pmgmm lotaliiig $24 0,0G7.?fl bv 
Autbrized Collector via the United Stales mail. 
On that day, the Aufhorized Collector date stamped each dieck ancl ctimplotcd :I <cf:cv1111c 
of receipt showing t h e date ofthe cbck, ?3e voucher associated with en.& chcclc, ~ m i c nf 
the remitter, bill nimber and the amount for each scpmta ch&. 
On October 13,2004, in the late afteruoon, the Branch oPRealty received copics o i t l s c 
checks, The checks were then reconciled by the Branch ofRealty s t a f f against .thr h c r 
contract to detembe which check belonged to whicli aUotment, 
On October 14,2004, the Branch of Redly began gcnorating a Bill of Collection for each 
allotment with lease number, rental ambunt and Special Deposit number, The Branch of 
Redty took ~NM (2) days to process these I62 checks. 
On October 15,2004, the checks with biIls for co1.lection were forwarded tn the 
Authorized ColIectjon Officer for the Oreat Plains I3egiolza.l Office. 11/19/2004 1 7 : 0 5 FAX 2022190559 DO I 
402-878-2943 
FROkBureau o f Indian A f f a i r s I I U A 
My Oflice verified that MS, FranceLia Phillips' payment was on a specific allowcut o f 
NOV-18-2004 03:31PM 
Branch o f Realty began the payout process by execirtiug the unity check on each 
allotment to vaiijl that the ownership is correct. Upon receipt ofthe CT number, the 
Branch of Rcdty gciieratcd the payout film and they were hwarded to OTFM lor 
payment on October 19,2004. 
holders on the allotment, 
15. 
. 17. 
. - - _ .__" 
whichher &are is - Ln addition to Ms. Phillips, fllere FU'C m~ol;hcr. I!itc!'cq! 
AU of the payments associated With h e gronp of checks thzt came in OP October 12, 2004 
were handled in the same expedifious manner 2s is policy at this Agency. TIte mtire 
process took seven days. At no time was a priaiity placed upon any givon iudividual, nor 
were any delays introduced into the process. Ms. Phjllips' check was treated in LEe S R ! ~ 
manner as evay 0th- check. No retdiation ngninst Mi. Plyillips acci.urcd. 
All 162 checks were placed into a locked safe after thc close o.f business fm nur.l!!.i!\~ 
reasons. At no time was any one check singled out and placed inh R lodced snfr !ndr~!?, 
it would be impossible to determine whose check belonged to whom. withoa rccrJiic!'ling 
the allotment number witkt the lease contract. 
19. On the morning o f October 18,2004, MB. PWIips contacted OUT Realty Office regarding 
the stam ofher payment The call was received by arealty clexk who infoimed Ms, 
Phillips that the payment was in process and would b t t o the accauut holders by tho end 
of the wesk. 
To the beat knowledge of me'& the Agency Realty StafF Ms. Pldlips h a not 
complained ofprior CRP payments being late, nor has she complained ab:Jt!I pqi'E?'!';hIS 
generated tiom hm other allatments. 
18. 
20. 
3