IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________ ELOUISE PEPION COBELL, et al., ) Plaintiffs, v. ) ) ) ) ) GALE A. NORTON, Secretary of the ) Interior, et al., ) ) ) Defendants. _________________________________) NOTICE OF FILING Defendants give notice of the filing of the attached Notice #4 by the Department of the Interior regarding the Court's Order of September 29, 2004 (DKT 2708), as clarified by the Court's Orders of October 1, 2004 (DKT 2713), October 22, 2004 (DKT 2743), and November 17, 2004 (DKT 2763), and in recent status conferences. Dated: November 29, 2004 Case No. 1:96CV01285 (Judge Lamberth) Respectfully submitted, ROBERT D. McCALLUM, JR. Associate Attorney General PETER D. KEISLER Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director /s/ Sandra P. Spooner SANDRA P. SPOONER Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 2 CERTIFICATE OF SERVICE I hereby certify that, on November 29, 2004 the foregoing Notice of Filing 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 1 NOTICE #4 Agents, Representatives, Employees, Officers and Counsel vfthe US. Department of the Tnterior Involved with Indian Trust Matters THIS NOTICE Sl.lPPI,EhEhTS THREE PRIOR NOTICES ISSI JED SEPTE-WER 30, 2004, OC'l'OBER 4,20@4, AhQ OCTOBER 8,2004 An individual is a member of the plaintiff class if he or she was, as of February 4, 1997, 1 '4'0: Date: Ynvcmher 22, 2004 Re- Communication with Members o f Flaintif~Class in Cobell I*. Nortort Since September 29, 2004, thc Court in the Cobcii v. ,Vorton class action litigatron has approved the lext nf a notice and walver form and clarificd thc process by which the Department is to proceed w t h c.ornmutucations with rnembcrs of the pfainttff class' related to thc saie, exchange, transfer or cunvcrsion of Indian trust lands 1. Oral conmunication with members of the plaintiff class about the sale, exchange, transfer or convcrsion oflndian trust land and about any othcr matters in the ordinary course afbusiness, is not prohbited, whether in pcrsnn or by telephone. Oral or wntten communication with members of the plaintiff class about the Cobell case or matters being litigated in ?hat case, is still prohibited 2. Written communication with rnembcrs of the plantiff class about the sale, cxchange, transfer or convcrsiori of Indian t r u s t land mus? include thc court-approved Notice aid Waver form attached as Attachment 1, the cover lettcr attached as Attachment 2, and the Confimiation of Consultatinn attached as Attachment 3 If transactions arc orcumng face-to-face which include wrrtteri conununications, it is perfectly acceptable to hand these Attachments to someone in person. These attachments are not required in the transmissions of checks, notifications of electronic fundq transfers, atid quarterly 1Lbl account statcrncnts 3. The Notice and Waivcr (Attachment I) informs the Indian tnist land owner ofhis or her right to consult with tbe class counsel rn the Cobdl iitrgatioti, prior to proceeding with any fivther communication or the transaction, or to waive that right. The names, electronic mail addresses, and phone nunibers of class counsel are in the Noticc and Waiver. a present or former beneficiary of Individual Indian Money accounts. . 4. The Confirmation of Consultation (Attachmcnt 3) i s for the p u q ~ ~ s c of documenting that the lndian trust land owner consulted with class counsel, if he or she chooses to do so. 5 , Aftcr providing Attachments t , 2 , and 3 to the Indian trust land owner, the Department shall not engage in any further written communication with that individual about the sale, exchange, transfcr or conversion of his or hcr land, until one of the following events (A or B) (1) The form must be signed by thl: lndian t r u s t landowner or his or her guardian. ( 3 ) Purported wawers which are not on thc attached Xotice and Waiver funn or occurs: A. Thc Indian trust landowner or guardian signs and snhinits to the Department thc Notice aud Waiver (Attachment 1 ) funn, or an earlicr versiori of this form previously distributed by the Dcpartrnent of the Interior, in accordance with the following requuements. (2) Earlier versions of this form prcviously distnbutcd by thc Department of the Intcriur will be accepted, so long as llic signature 'is verified in accordance with parapaph S.A.(4) below. on an earlicr version of the form are not acceptable. The court has required that waiver be accomplished on a coiut-approved form. It'the lndian trust land owncr drafts his or her own waiver, it wdl not be accepted unless it is identical to the form etiached to this ,guidance. (4) The sigriahire of the hdian trust landowner or guardian on t h e Notice and Waivct form must be verified by the Departmcnl by requmng the signatory to produce identification. or by rcquinng that the signature be witnessed Jf Gic latter method of verification i s uscd, the witness to the signature must also sign the form on ttie line providcd, indicating that the witness is attesting to the authenticity of the signature of the hdiw trust landowner or guardian. If verification of the signature by eithcr of these methods is not feasible, plcaqc contact Janct A Goodwin (202-208-3962) or Kaniah Konkoly-Thege (202 208-5 134) of thc Office of the Solicitor for addhonaf guidance. The signatures on forms signed before Novembcr 17, 2004 need not be verified in accordance with this paragraph, since that rcquirement was not ordered by UIC court until that date. ( 5 ) Although the Notice and Waiver states that it must be returned vd.hin 10 days of the date it was provided to the M a n trust land owner, it must be accepted by the Department if returned at any timc. (6) Thc orignal signed Notice and Waiver must be filed at thc Bureau of Itid;lan Affairs field oflicc. A copy must be faxed to Kaniah Konkoly-Thcgc irt the Office of the Solicitor at fax number 202-219-0559; and a copy must also he included with the transaction documents submitted to the Office ofSpccia1 Trustee for processing. 3 c . B. 'Ihe Indian trust landowner, guardian, or legal reprcscntative signs and suhmits to the Depatment the Confirmation of Consultation (Attachrncnt 3) fonn, in accordance with the f n I lo w i n g rcquir ements : (1) A signed copy of the Attachment 3 form being provided w~th this guidance is sufficient, However, i f the Indian trust landowner, guardian, or legal representative submits a written statcmcnt confirming consultation with class counsel that is differently worded but substantively the same as the sample provided, that written statement will also be sufficient. Verification of h e signatures o l the lndian trust land ohmer or the guardian on the Confirniation nf Consultation statement is required, as described in paragraph S.A.(4) abovc. h signature of a legal representative must bc idcntificd as such and must bc vcrified as desciibed in paragraph 5.A.(4) above. (2) A properly-completed Canfirmation of Consultation will he acccpted by the Department at any timc. (3) The original signed Confirmation of Consultation must Se filed a: the Biireau of Indian Affairs field office, A copy of the signed Confirmation o f Consultation must bc faxed to Kaniab Konkoly-Thege in the Officc or the Solicitor at fax number 202-2 19-0559, and a copy must also be included ibith the transaction documents siihmitted to the Office of the Special Trustce f i r processing. 6 . IJpon receipt of a properly signed Notice and Waiver (Attachment 1) or a properly signed Confirmation of Consultation (Attachment 3) thc Department may continue with wlltten communications with Indian trust land owners about the sale, exchange, transfer, or convcrsion of their land, If the Indian trust land owner has submitted a signed Sotice and Waiver (Attachment 1) in accordance with paragraph 5.A abnve, the Dcparlrncnt is required to include the Notice (Attachment 4) with all subsequent written communications to the Indian trust land owner about the sale, exchange, transfer or conversion of his or her land. If the Indian trust land owner has submitted a signed Confirmatiou o f Consiiltation (.4ltachment 3) in accordance with paragraph 5. B above, the Department is required to include a Notice and Waiver form (Attachment 1) with ail subsequent written communications to the Indian trust laud owncr about the sale, exchangc, transfcr or conversion ofhis or her land. If the Indian trust land owner submits a properly signed Notice and Waiver at any tme, the Departmcnl need enclose only the Notice (Attachment 4) with subsequent wettcn cornrnunicatiuns. 7. Although i t is important to continue to be as accommodating as possible to those YOU serve, avoid giving advice or interpreting the content n f the notjcc or waiver Refer questions about it to class counsel. You may ailow the Indian trust land owner to use a Department telephone to cdl class counsel. 3 . 8. If thc Indian trust land uwncr wishes to proceed with written communications with the Depart~ntnt about the sale, exchange, transfer or conversion of lus or her land, but refuses or is unable for some reason to provide a signed Notice and Waiver form or a signed Confirmation of Consultation form to the Department, please contact Janet A. Goodwin (202-208-3!XZ> or Kaniah Konkoly-Thege (202-208-5 134) in the Office of tlic: Solicitor for further guidance. 9 There arc no restrictions on written communications between the Department, its agents, representatives, employees, officers, and counsel and members of thc plaintiff class regarding transactions in any of the foiIowing categnnes: (1) Encumbrances, leasing, lease sales, pcmiiltrng, nghts-of-w ay, and timber salcs of or on individually-owned Indian trust land, (2) The investment o f trust finds in il;tl accounts; (3) Estate plannmg, will drafting and the probate of or relating to Indian ti-ust assets: (4) The surve)?ng ot appraisal of trust assets; ( 5 ) Title to trust lands; (6) Ownel ship of tnist fiinds or Iands; or (7) Physical impro\w~ient or alternation of trust w e t s 10. These procedures must be followed with regard to each particular land bnsaction. In other words, a waiver or a confirmation n f coltsuitation signed by the hdian tnist land owner 1s effcctive only with regard to a particular traqsactitrn coiicenng his or h c ~ trust land. Attachment 1 ' Noticc and Waiver Attachment 2. cover letter Attachment 3: Confirmation of Consultation Attachmen1 4: Notice 4 SIGNATURE CONSTTT‘IJTES U’AIVEK - -.-.__ Notice and Waiver Please be. aware that thc lndian trust land owner to whom this notice is directed may be a membcr of a class action lawsuit, Cobell v. Kurton, No 1 :96CVo1285 @,D.C.) (Judge Lamberth). Nothing in this notice or any letter, documcnt, or other commiinication to which this notice may be attached will eliminate or adversely affect any rights that thc tnhau trust land owner who rcccived this notice may have if he or she is a class member in the Cobell litigation. The Indian trust Imd owncr who receivcd this notice will not eliminate or adversely affect any rights that hc or she may have as a class member by entering :nto any transaction or communication with iiny other person or organization, including the Department of the Interior OT the Bureau ofln&an Affairs, d a t e d to the salc, exchange, transfer, or convcrsion of Indiiui trust land. As a potential class member, thc Indian trust Iand owner who rcccived tIis notice has thc right tn consult with the class counsel in the Cohcll litigation pnor to any proceeding with any further communication or tTansactiun. For further information you may contact thc lawyers for the class members: Dennis M. Gingold, Esq., 607 14th Street, N.W., 9th Floor, Washmgton, L>C 20005, phonc: (202) 824-1448, fax: (202) 3 18-2372, email: dermismgtS1Pold~aol.com, ur Keith Harper, Esq., Native A R I C ~ ~ C ~ ~ hghts Fund, 171 2 N Street N.W., Washington, DC 20036-2976, phone, (202) 785-4166, fax: (202) 822-0068, email: harper@arf.org. You may also access further idormation at the plaintiffs’ website, www.indianlrust.com, The lndian tnist land owncr who received this notice may also choose to waive his or her right to consult with ctass counsel. If the Indian trust land owner who received this notice wishes to do so, lie or she must s i g n and retum this notice to the Departmerit ofthe hterior office From which you received it withir, ten (1 0) days. Waiver of the right to consult with class counsel will not eliminate or adversely affect any rights that the Tndian trust land owner who receivcd this notice may havc as a class nicmbcr in the Cobell litigation. I, Lhc unrlcrsigned, hereby waive my right to consult with class counsel in the Cobcll litigation before confinuing with communications or transactirins incoIxhg or resulting in the salc, cxchange, trarsfer, or conversion of Indian trust land. Pnnt Name Signature Witness . Attachment 1 to I 1 /22‘04 guidance - I Date Attac.liment 2 to 11/22/04 p k h c e November 22,2004 Cover Lcttcr near Sir or Madam: Y 011 are receiving the enclosed notice because you have been identified as a potential member of a class action lawsuit, Cobell Y. Xortort, Civ. 1 :9GC\’01285 P.D.C.). The Dismct Judge in Cobell has issued Orders governing thc Department of the htenor’s communications with class rncmbcrs related to thc sale, exchange, transfer, or conversion of Indian trust land. Enclosed please find a copy of the Notice and Waiver required by the Court. Sincerely, Director, B3rueau (1 f Tndian affairs L1.S Dtpartment of the htctior Attachment 3 to 1 1 /22/U4 guidance . Confirmation of Consultation As apotcntral member of tlic plairitiff class In Cobcll v. Norton, No. 1:96CVo1285 (D.D.C.) (Judge Lamberth), I have consuIted with class counsel and wish to proceed with further comnwnicahns with the Deprtment of the Interior and with transactlons involving or resulting tn the sale, exchange, transfcr, or conversion of my intcrcsls in hidiaii tn~st land. Class counsel inchides: Denrus M Gingold, Esq,, 607 1 4 ~ Street, N.W., 9" Floor, Washington DC 20005, phone; (202) 824- 1448, fax (202) 31 8-2372, ernails dcnnis~n~old(ij)la-ol corn Keith Harper, Esq., Native American Rights Fund, 171 2 N Strcct h' W , Washngton, nc 20036-2976, phone: (202) 785-4 166, fax: (202) 822-0063, emarl' hqer@narf. or Print Name Signaturc Date ALPdchmcnt 4 to 11/22/04 guidance Kotice Ptease be aware that thc Tndian trust land owner to whom this notice is directcd may be B member of a class action lawsuit, Cobell v. Norton, No. 1:96CVo1285 (D.D.C.) (Judge Lamberth). Nothing in this noticc or any letter, document, or other conmunication to which this notice may be attached will eliminate or adversely affect iiny rights ttiat the Indian trust land owner who received this noticc may have i f he vr she is a class member in thc Cohell litigation. The Indian trust land owner who received tius notice will not eliminate or adversely affect any nghts that he or she may have as a class manber by entering into any transaction or communication with any other person or organization, including the Department of the Tnterio: or the Bureau of Indian Affairs, related to the sale, exchange, transfer, or conversion of Xndian tnist land As a potential class member, the Indian trust land owner who received this noticc has the right to consuIt with the cIass counsel in thc CohelI litigation prior to any proceeding with any furtlicr conmunication or transaction. For further information you may contact the lawyers for the class members: Dennis M. Gingold, Esq., 607 14th Street, N.W., 9th Floor, Washington, DC 20005, phone: (202) 824-1448, fax: (202) 318-2372, email: dennisnieinaold~aol.~om, or Keith Harper, Esq,, Native American kghts Fund, 1 7 12 N Street N W., Washington, DC 20076-2976, phonc: (202) 785-4166, lax: (202) 822-0068, ernail: harper@narf.org. You may also acccss further information ot the plaintiffs’ websitc, wwv.indiantrust.com.