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 A. NORTON, Secretary of the Interior, 
et al., ) 
Defendants. 
)
) 
__________________________________________) 
DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' 
“REPORT” REGARDING THE ERWIN SCHEDULING MATTER 
On November 15, 2004, plaintiffs filed a combined “Report on the Status of the Evidence 
Concerning Defendants’ and the Department of Justice’s Misrepresentations to this Court on 
December 13 and December 17, 2003[sic] and Request for Attorney’s Fees with Respect 
Thereto." As explained in further detail in the accompanying Memorandum of Points and 
Authorities, defendants move that plaintiffs’ “Report” and its exhibits be struck from the record 
because (1) the “Report” was never authorized by this Court or by any provision of the Federal 
Rules of Civil Procedure, and (2) it is entirely improper under Young v. United States ex rel. 
Vuitton et Fils, S.A., 481 U.S. 787, 807 (1987); Cobell v. Norton, 334 F.3d 1128, 1142 (D.C. Cir. 
2003); and this Court’s September 2, 2004 Memorandum and Order at 4-6.1 
In the alternative, defendants request that the Court grant them 30 days from the date of 
its ruling upon this Motion to file a substantive response to the “Report.” 
In accordance with the Local Rules of the Court, defendants’ counsel conferred with 
counsel for plaintiffs concerning this Motion. Plaintiffs’ counsel informed us that they oppose 
the Motion to Strike, and they have not taken a position regarding the alternative request for 30 
days to respond to the Report. 
1Defendants move only that the “Report” and its exhibits be struck from the record, not the 
plaintiffs’ request for attorneys’ fees. Defendants intend to file their response and objections to 
the fee request on or before December 14, 2004, in accordance with the Court’s February 5, 2003 
Order at 30.
A proposed order accompanies this Motion and the Memorandum of Points and 
Authorities. 
DATED: 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
MICHAEL F. HERTZ 
Director 
/s/ Tracy L. Hilmer 
Dodge Wells 
D.C. Bar No. 425194 
Tracy L. Hilmer 
D.C. Bar No. 421219 
Attorneys 
Commercial Litigation Branch 
Civil Division 
P.O. Box 261 
Ben Franklin Station 
Washington, D.C. 20044 
(202) 307-0474 
November 29, 2004 
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CERTIFICATE OF SERVICE 
I hereby certify that, on November 29, 2004 the foregoing Defendants' Motion to Strike 
Plaintiffs' "Report" Regarding the Erwin Scheduling Matter 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 A. NORTON, Secretary of the Interior, 
et al., ) 
Defendants. 
)
) 
__________________________________________) 
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES 
IN SUPPORT OF THEIR MOTION TO STRIKE PLAINTIFFS' 
“REPORT” REGARDING THE ERWIN SCHEDULING MATTER 
Plaintiffs have filed a combined “Report on the Status of the Evidence Concerning 
Defendants’ and the Department of Justice’s Misrepresentations to this Court on December 13 
and December 17, 2003[sic] and Request for Attorney’s Fees with Respect Thereto." Defendants 
move to strike the “Report” portion of the filing and the exhibits to the “Report.”1 Plaintiffs’ 
“Report” was never authorized by this Court and is entirely improper under Young v. United 
States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 807 (1987); Cobell v. Norton, 334 F.3d 1128, 
1142 (D.C. Cir. 2003); this Court’s September 2, 2004 Memorandum and Order at 4-6; and the 
Federal Rules of Civil Procedure. 
Background 
In early December 2002, plaintiffs sought to take the deposition of Donna Erwin, who 
was then the Acting Special Trustee, as part of the preparation for Trial 1.5. The government 
sought to defer Ms. Erwin’s deposition, and that of Bert Edwards, until after January 6, 2003, the 
date the Court had assigned for the government to file its historical accounting plan. As grounds 
for the motion, the government argued that Ms. Erwin was intensely involved in the creation of 
the plans and had certain personal obligations in late December 2002 that would make it overly 
1Accompanying the “Report” is a claim for an astonishing $162,761.52 in attorney’s fees. We do 
not move to strike the fee request, but rather intend to address it separately on or before 
December 14, 2004, in accordance with the Court’s February 5, 2003 order at 30.
burdensome for her to be deposed before January 6, 2003. The Court held a hearing on the 
matter on December 13, 2002. A misunderstanding between government counsel and Donna 
Erwin and her staff resulted in inaccurate information concerning Ms. Erwin’s plans to be in 
Washington, DC prior to January 6, 2003 being given to the Court at the December 13 hearing. 
As a result, the Court ordered Ms. Erwin to submit to deposition the week following the 
December 13 hearing in Albuquerque, New Mexico, where she resided. Following a subsequent 
hearing before the Court on December 17, 2002 at which government counsel attempted to 
explain the misunderstanding regarding Ms. Erwin’s schedule, Ms. Erwin was deposed by 
plaintiffs in Washington, DC on December 20, 2002. Ms. Erwin was not called to appear in 
person as a witness by either side at Trial 1.5. 
Plaintiffs had agreed to conclude Ms. Erwin’s December 20, 2002 deposition by 4:30 pm 
so that Ms. Erwin could make her flight back to Albuquerque. Dec. 20, 2002 Erwin Dep. at 4 
(Exhibit A). Shortly before 4:30, after having apparently concluded their questioning of Ms. 
Erwin regarding Trial 1.5 issues, plaintiffs’ counsel asked Ms. Erwin regarding the December 13 
and 17, 2002 hearings: “And you believe your attorneys have been fully truthful with the Court?” 
Id. at 284. Government counsel asserted a privilege and, after a conference with Ms. Erwin, 
directed her not to answer the question. Plaintiffs filed a motion to compel Ms. Erwin to answer 
the question. The Court granted the motion. The Court also awarded plaintiffs sanctions for 
reasonable attorney’s fees and costs incurred in presenting the motion to compel and in redeposing 
Ms. Erwin upon the matter she had been directed not to answer. Cobell v. Norton, 213 
F.R.D. 16, 32-33 (D.D.C. 2003). The Court did not in that order or subsequently authorize or 
direct the plaintiffs or anyone else to file a “report” regarding the Erwin scheduling matter. 
Ms. Erwin retained personal counsel and submitted to re-deposition on February 12 and 
13, 2003. She was re-deposed again on October 14, 2004, pursuant to the Court’s September 2, 
2004 Memorandum and Order at p. 7 (“Sept. 2, 2004 Order”). 
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Argument 
In filing this “Report,” absent an order of the Court, plaintiffs have assumed the mantle of 
a special master or a special prosecutor – positions they, as interested parties in this litigation, are 
legally ineligible to hold. Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 807 
(1987) (plaintiff’s counsel was ineligible to serve as special prosecutor of alleged criminal 
contempt); Jenkins v. Sterlacci, 849 F.2d 627, 630-32 & n.1 (D.C. Cir. 1988) (ethical restrictions 
of 28 U.S.C. § 455 apply to a special master), cited with approval in Cobell v. Norton, 334 F.3d 
1128, 1144 (D.C. Cir. 2003). Plaintiffs do not expressly specify the purpose of the document, 
but the opening sentences of the “Report” level charges of unethical and even criminal conduct 
by various government attorneys and officials. “Report” at 2. Thus, it is apparent that plaintiffs’ 
unstated purpose in submitting this “Report” is to instigate some sort of criminal or disciplinary 
proceeding against the named attorneys and officials. Plaintiffs do not state under what authority 
they purport to submit their “findings”, but no order of this Court and no rule of procedure has 
authorized them to undertake the role of investigator or prosecutor. 
The Court did not appoint plaintiffs to serve in such a role. Indeed, the Court refused to 
permit the plaintiffs to depose the government’s counsel in connection with the Erwin scheduling 
issue in part because it found: “Any deposition of defendants’ trial counsel would appear to be 
directed only at uncovering facts useful for the prosecution of criminal contempt. Plaintiffs are 
ineligible to undertake such an investigation.” Sept. 2, 2004 Order at 4-5. The Court’s 
September 2, 2004 ruling was therefore consistent both with Young and with the Court of 
Appeals’ holding that district courts are not empowered to appoint agents to function in "an 
investigative, quasi-inquisitorial, quasi-prosecutorial role that is unknown to our adversarial legal 
system." Cobell v. Norton, 334 F.3d at 1142. Plaintiffs’ counsel, however, have clearly decided 
to ignore the holdings of the Court of Appeals and this Court in their continuing unsavory effort 
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to accumulate attorneys’ fees and tarnish the reputations of defendants and their counsel.2 
Submission of the "Report" violates the principles set forth by the Supreme Court in Young, and 
by the Court of Appeals and this Court in this very case. Indeed, the bias that is evident in 
plaintiffs’ “Report” perfectly illustrates the reason why the Supreme Court refused to allow a 
party in a civil case to serve as a special prosecutor regarding alleged misconduct of its 
adversary. 
Further, even if plaintiffs were not ineligible to pursue criminal sanctions, the “Report” is 
procedurally defective. It is not a motion or any other type of pleading recognized by the Federal 
Rules of Civil Procedure. The “Report” is entirely improper and should therefore be struck from 
the record. 
If, despite the authorities cited above, the Court determines that it will entertain plaintiffs’ 
“Report” on the merits, defendants respectfully request 30 days from the Court’s ruling upon this 
motion to strike for responses to be filed to the “Report.” Such time would be necessary to make 
a substantive response because the “Report” is not only lengthy, but also based upon a biased and 
incomplete selection of portions of the depositions and documents pertaining to the Erwin 
scheduling issue. 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
MICHAEL F. HERTZ 
Director 
2Although plaintiffs’ accuse their opposing counsel of “once more flouting their ethical 
obligations”, Report at 2, it must be noted that referrals of the government’s current defense 
counsel to the Disciplinary Committee of the Bar of the District Court for other matters related to 
this litigation have resulted in findings that no further proceedings were warranted. 
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/s/ Tracy L. Hilmer 
Dodge Wells 
D.C. Bar No. 425194 
Tracy L. Hilmer 
D.C. Bar No. 421219 
Attorneys 
Commercial Litigation Branch 
Civil Division 
P.O. Box 261 
Ben Franklin Station 
Washington, D.C. 20044 
(202) 307-0474 
November 29, 2004 DATED: 
-5-
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
F 
ELOUISE PEPION COBELL, et al., 11 
I1 
Plaintiffs, 11 
\/NO. 1: %CV01285 RCL V . 
/I 
BRUCE BABBITT, Secretary of the I( 
Interior, et al. , 
I/ 
/I 
I/ 
I/ 
Defendants . /I 
~- _____il 
DEPOSITION OF: 
Washington, D. C . 
December 20, 2002 
DONNIl ERWIN I 
called f o r examination by counsel for t h e plaintiffs, 
pursuant to notice of sLibpoerlaI in the law offices of 
Kilpatrick and Stockton, 507 Fourteenth Street, N.W., 
at 10:30 a.m., when were p r e s e n t on behalf of the 
respective parties: 
NEAL R. GROSS 
1 
EHIBIT A 
Defendants' Memorandum 1 Points and 
Authorities in Support of Tk r Motion to 
Strike Plaintiffs' "Report" F prding the 
Erwin Scheduling h tter 
(202) 234-4433 
COURT REPORTERS AND TRANSCRIBERS 
1323 RHODE ISLAND AVE N W 
WASHINGTON. D C 20005-3701 www.nea1rgross.com 1 
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P-R-0-C-E-I-D-I-N-G-S 
Whereupon, 
DONNA ERWIN 
testified as follows: 
that right? 
THE WITNESS: Yes. 
our best to accommodate k-cu. 
things on the record? 
MR. BROWN: S u r e . 
4 
(10:35 a.m.) 
was called as a witness by counsel for the plaintiffs 
and, having been first duly sworn, was examined and 
MR. BROWN: Good morning, Ms. Erwin. My 
name is Mark Brown. I am cne of the attorneys for the 
plaintiffs. I apologize f o r our late start here. You 
need to catch a plane aRd be o u t of here at 4 : 3 0 . Is 
MR, BROWN: A l l riglit. We die going to do 
MS. SPOONER: We really- appreciate that. 
Can I have a moment to put a couple of 
MS. SPOONER: F i r s t is to thank you for 
agreeing to start earlier, although I know that wasn't 
the detail there, and for agreeing to 1-et Ms. Erwin 
NEAL R. GROSS 
COURT REPORTERS AND TRANSCRIBERS 
1323 RHODE ISLAND AVE., N.W. 
WASHINGTON, D.C. 20005-3701 (202) 234-4433 www.nealrgross.com 1 
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284 
THE WITNESS: Yes. 
By MR. BROWN: 
And you believe your attorneys have been 
MS. SPOONER: I'm going to object on that 
MR. BROWN: It can't possibly be. 
MR. KIEFFER: It's her belief she has 
M S . SPOONER: Yes, except that we've had 
We're dealing with a MR. GINGOLD : 
Q 
fully truthful with the Court? 
on the grounds that it's protected by the attorney- 
client privilege. 
about her attorneys. It's not whether her attorney 
said - - 
a number of discussions about that and I don't 
believe, as with Ms. Skobell, when Mr. Gingold made 
objections that she can properly separate her 
discussions with her attorneys from her beliefs. 
finding by the Court that Ms. Erwin deliberately 
deceived the Court. That's a finding of fraud with no 
exceptions to privilege to the extent it exists 
applies here in the - - 
I'm Absolutely not. MS. SPOONER: 
NEAL R. GROSS 
(202) 234-4433 www.nealrgross.com 
COURT REPORTERS AND TRANSCRIBERS 
1323 RHODE ISLAND AVE., N.W. 
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THE WITNESS: NO. 
discussing with someone. 
personal counsel? 
counsel. I am in the process. 
have the opportunity to do that. 
now 4:37 by my clock. 
so I want to finish that line of questions. 
break. It's now 4:38 by my clock. 
answer any further questions? 
MS. SPOONER: 
questioning do you have? 
MR. BROWN: We're going to find out. 
2 8 9 
MR. BROWN: Who is your personal counsel? 
THE WITNESS: I am just in the process of 
MR. BROWN: So you have not obtained 
THE WITNESS: I've not obtained personal 
MR. BROWN: Okay. Ms. Erwin, don't you 
MS. SPOONER: Ms. Erwin has to go. It's 
MR. BROWN: Well, we've taken that break, 
MS. SPOONER: We were 5 minutes on that 
MR. BROWN: Are you instructing her not to 
What other lines of 
MS. SPOONER: No, given those certain 
NEAL R. GROSS 
(202) 234-4433 
COURT REPORTERS AND TRANSCRIBERS 
1323 RHODE ISLAND AVE., N.W. 
WASHINGTON, D.C. 200053701 w.nealrgross.com matter of: 
held on: 
:LdP&-- 
No'tary Public/Reporter in and for 
CERTIFICATE 
This is to certify that the foregoing proceedings in the 
The Deposition (;f 
DONNA ERWIN 
December 20, 2002, 
at the location of: 607 - 14th Street, NW, 
Washington , DC , 
were duly recorded and accurately transcribed under my 
direction; further, that said proceedings are a true and 
accurate record of the testimony given by said witness; and 
that I am neither counsel for, related to, nor employed by 
any of the parties to this action in which this deposition 
was taken; and further that I am not a relative nor an 
employee of any of the parties nor counsel employed by the 
parties, and I am not financially or otherwise interested in 
the outcome of the action. 
the District of Columbia. 
My commission expires 
297 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 
Upon consideration of Defendants' Motion to Strike Plaintiffs' "Report on the Status of 
the Evidence Concerning Defendants' and the Department of Justice’s Misrepresentations to this 
Court on December 13 and December 17, 2003[sic]” (filed Nov. 15, 2004), and the entire record 
in this case, it is this _________ day of _________, 2004, hereby 
ORDERED that Defendants’ Motion be, and hereby is GRANTED; and it is 
FURTHER ORDERED that Plaintiffs' "Report on the Status of the Evidence Concerning 
Defendants' and the Department of Justice’s Misrepresentations to this Court on December 13 
and December 17, 2003[sic]” (filed Nov. 15, 2004) and the exhibits thereto be struck from the 
record in this case. 
SO ORDERED 
___________________________________ 
Hon. Royce C. Lamberth 
UNITED STATES DISTRICT JUDGE 
United States District Court for the 
District of Columbia 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 Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Paul 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