Page 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE COBELL, et al., . . Plaintiffs, . . Civil Action No. 96-1285 v. . . Washington, D.C. SECRETARY OF THE INTERIOR, . Wednesday, October 6, 2004 et al., . 3:00 p.m. . Defendants. . . . . . . . . . . . . . . . . . TRANSCRIPT OF STATUS CALL BEFORE THE HONORABLE ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: DENNIS GINGOLD, ESQUIRE AUKAMP & GINGOLD 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 202-662-6775 KEITH HARPER, ESQUIRE NATIVE AMERICAN RIGHTS FUND 1712 N Street, N.W. Washington, D.C. 20036 202-785-4166 For the Defendants: SANDRA SPOONER, ESQUIRE UNITED STATES ATTORNEY'S OFFICE Civil Division 555 - 4th Street, N.W. Washington, D.C. 20001 Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 2 APPEARANCES CONTINUED: For the Defendants: JOHN T. STEMPLEWICZ, ESQUIRE CYNTHIA L. ALEXANDER, ESQUIRE JOHN WARSHAWSKY, ESQUIRE U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION COMMERCIAL LITIGATION BRANCH 1100 L Street, N.W. Washington, D.C. 20005 202-307-1104 202-616-2237 202-307-0010 Court Reporter: BRYAN A. WAYNE, RPR, CRR Official Court Reporter U.S. Courthouse, Room 4808-B 333 Constitution Avenue, N.W. Washington, D.C. 20001 202-216-0313 Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 3 1 P R O C E E D I N G S 2 THE DEPUTY CLERK: In the matter of Elouise Cobell, et 3 al, versus Secretary of Interior, et al. Civil action 96-1285. 4 For the plaintiffs Mr. Gingold and Mr. Harper. For the 5 defendants Ms. Spooner, Ms. Alexander, Mr. Stemplewicz, and 6 Mr. Warshawsky. 7 MR. GINGOLD: Good afternoon, Your Honor, and thank 8 you very much for scheduling this status conference. We do not 9 like to burden this Court. We know how busy this Court is. 10 Nevertheless, as a result of the October 1st status conference 11 we thought many issues had been resolved. We believed the Court 12 was very clear and representations were clearly made to this 13 Court. 14 Over the last 24 hours, we've provided this Court with 15 five affidavits: Two from Mr. Remple and three, including a 16 tribal court judge, which specifically provide evidence that the 17 information provided to this court in representations made to 18 this Court made by the government are false. Specifically, we 19 have been informed that checks have not gone out with regard to 20 leasing activities. Specifically, Your Honor, I myself -- 21 Mr. Harper and I were at the Navaho reservation on Monday. We 22 left on Sunday, we came back late yesterday, and the reason we 23 filed the notice when we did is because that was as soon as we 24 could do anything on a return from the Navaho reservation. 25 I myself had 87 telephone calls with regard to the Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 4 1 fact that trust beneficiaries were turned away from agency 2 offices on Monday and Tuesday. In fact, I had calls this 3 morning where information was still being refused to trust 4 beneficiaries with regard to leasing activities, probate 5 activities, balances and accounts, disbursement of funds, holds 6 placed on the accounts, and virtually everything surrounding the 7 trust. 8 The statements that have been represented to us by 9 trust beneficiaries are that the Interior Department was 10 required to do this because of this Court's order and that they 11 will not -- that Interior officials will not discuss these 12 issues. So, in fact, shortly before coming over here I had a 13 conversation myself with a trust beneficiary who I asked again 14 to call the agency office before I left to make sure the 15 information that I'm giving to you is accurate. She did, and 16 she told me that her agency office explicitly told her that 17 they'd had a meeting about what this Court ordered on October 1. 18 They had the meeting yesterday afternoon, and during the course 19 of their meeting and conference call, their position remained 20 the same: They cannot talk to her about her trust account. They 21 cannot talk to her about her land. 22 One other individual with whom I spoke shortly before 23 coming over here is an individual who wanted to get a copy of 24 her deed. Land had been given to her through a gift conveyance 25 by her relatives. She had a title status report. The title Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 5 1 status report was provided to her in early September. All she 2 wanted was a copy of her deed. She needed information because 3 she was seeking a mortgage. She couldn't get the information; 4 they wouldn't talk to her. 5 I talked to a banker Wisconsin who is trying to 6 provide mortgage financing to a trust beneficiary on another 7 matter. He needed the documentation with regard to the trust 8 assets. He was unable to get that information. I talked to him 9 as recently as this morning. 10 So, Your Honor, not withstanding the representations 11 made to this Court, the problems remain the same. 12 Mr. Harper, if the Court permits, has had several 13 conversations with tribes and trust beneficiaries beyond mine. 14 Among us, we've probably had 200 or more telephone calls from 15 trust beneficiaries just on the fourth and fifth of October. 16 The evidence is pretty clear what's going on, Your Honor, and 17 let me provide something to this Court that was, as we 18 understand it, taken down from the Anadarko Agency door 19 yesterday. 20 For the record, this is a notice that was on the 21 agency door. It was consistent with the notice or information 22 that was on a recording when a trust beneficiary called the 23 Anadarko Agency. It is a bold notice, language, and it says: 24 "Due to the September 29, 2004, Cobell Court order, we cannot 25 discuss any trust transactions or matters at this time with Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 6 1 members of the plaintiff class, as determined by the Federal 2 Court. All realty and soil and moisture offices are closed for 3 business until further notice." 4 And then it goes on, Your Honor, to identify that 5 trust beneficiaries are to call one of three plaintiffs' 6 lawyers, and it says business related to nontrust matters will 7 continue, and the date is October 1, 2004, Anadarko Agency and, 8 Your Honor, it was on the door yesterday. And, in fact, trust 9 beneficiaries went to Anadarko to try and talk to the people. 10 They couldn't talk to anyone and, in fact, the agency was 11 closed. 12 So, Your Honor, we are not speculating here. This is 13 real, and we believe it's in defiance of what this court has 14 clearly stated. 15 One other point which I think worth noting, in 16 addition to the various other matters, it was our understanding 17 that we had a discussion on Friday concerning transactions that 18 had been agreed to, and transactions had been negotiated and 19 agreed to and otherwise were ready to go forward, and it was our 20 understanding those transactions could continue to go forward. 21 It is our understanding that although those transactions 22 continued to be in suspense, that no further business would be 23 done, and we don't have any idea when and how and what 24 information is provided in that regard. 25 But, in reality, the trustee has now repudiated the Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 7 1 trust. The trustee is refusing to discuss any information with 2 regard to the trust beneficiaries. It is absolutely false that 3 checks have not been withheld. It is absolutely false that 4 disbursements have not been withheld, and we have trust 5 beneficiaries who are in desperate need of relief. We don't 6 know when this is ever going to end, Your Honor, but we've been 7 through this before. We've been through the check situation 8 when the IT systems were ordered to be off the Internet, and 9 Justice Department lawyers stood up in front of you and told you 10 flat out the only checks that weren't going out were checks for 11 MMS, and the argument was MMS had further difficulties because 12 of being off the system. 13 The reality, Your Honor, at that point in time, it 14 wasn't because of that; it's because of with MMS they had 15 converted to a new computer system that had less capacity then, 16 believe it or not, the Legacy System. In addition, Tex Hall 17 testified in response to specific questions that MMS checks that 18 were not going out, there were grazing checks and ranching 19 checks, and he specifically testified to that under oath. 20 Your Honor has never been provided with candid, 21 accurate, or complete information by the government, and every 22 single time they stand up in front of you, they deceive you. 23 Your Honor, with your leave, I would like to have 24 Mr. Harper explain some of the further discussions which 25 identify and help explain the scope of this problem. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 8 1 THE COURT: All right. Thank you. 2 MR. HARPER: Thank you, Your Honor. And, again, thank 3 you for allowing us to come before you today and present these 4 issues. 5 I think, from the affidavits and what Mr. Gingold has 6 presented to you, you understand the scope of this and how it 7 affects individual Indian trust beneficiaries. I just wanted to 8 also bring to your attention that, repeatedly, government 9 officials have not had meetings with tribes as well, on things 10 like education, on things like healthcare. Tribal leadership 11 has traveled many miles to get to places and then told at the 12 door that they need to just go home, that they will not have 13 those discussions. How possibly those things can be related to 14 any order, whether clarified or not, is beyond me. 15 I think we all know what's going on here, and I think 16 you identified it on Friday, Your Honor, and that is, this is 17 retaliation. There has been a disinformation campaign by the 18 government for a long time going out in Indian country, and now 19 this is part of that. They are not -- when they want to act 20 fast, as when they initially got the first order that they said 21 needed clarification, they went out there immediately and said 22 don't talk to anybody. Call your counsel. And we were 23 inundated with phone calls. Why didn't they act fast after 24 Friday when you clarified the order? They didn't. Your Honor, 25 I think that that makes it absolutely clear what the intent, Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 9 1 what the motives are here, with the defendants. 2 I have received no less than 10 phone calls or e-mails 3 from tribes. Now, some of them are willing to go on the record, 4 others are not because they are concerned about retaliation, 5 further retaliation. They have dealt with Interior many times 6 before. They have business before Interior on many issues, and 7 they don't want to have that retaliation. But Fort Peck, Fort 8 Belknap, many of the three affiliated tribes. Tex Hall's tribe, 9 they've all had these problems trying to get business done that 10 are wholly unrelated to this issue. 11 So this is having a wide spread effect. There is a 12 virtual panic out there because nobody knows when this is going 13 to stop, and that's part of the reason we're having these 14 issues. They from every state that you could possibly imagine, 15 and it's continuing presently. 16 We just think this cynical maneuver has to stop, and 17 it has to stop immediately. Again, when the government is able 18 to -- when something is working in favor of their disinformation 19 campaign, they're able to get out there immediately to Indian 20 Country, and now somehow they're having difficulties getting the 21 word on the ground, or maybe they're not doing anything at all. 22 We have had no word from Indian country that any of this is 23 stopping. Now, the only indication is that they have taken, 24 because of what we filed last night, today no longer is the 25 answering machine in Anadarko saying -- turning away all trust Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 10 1 beneficiaries. 2 Many of these other things continue as we speak. 3 We've had trust beneficiaries call today numerous times, and 4 they're continuing to have these problems. So we ask if you 5 could take some type of immediate action to ensure that there is 6 no continuing retaliation that's causing irreparable harm and 7 widespread panic out in Indian country. Thank you. 8 THE COURT: Ms. Spooner? 9 MS. SPOONER: Your Honor, good afternoon. 10 In many ways, I think it's not surprising that it 11 would take a certain amount of time for an agency of more than 12 70,000 -- I think it's something like 77,000 people -- to get 13 all of the instructions. However, interior began immediately 14 after the conference on Friday, and worked over the weekend to 15 draft instructions. Those instructions were reviewed and 16 obtained legal clearance on Monday, were provided to NBC 17 Washington for distribution. They were distributed in large 18 part on Monday. 19 THE COURT: What is NBC Washington? 20 MS. SPOONER: National Business Center, Your Honor. 21 There was testimony about that during the -- 22 THE COURT: Can I have a copy? 23 MS. SPOONER: Of what went -- yes, Your Honor. But I 24 think I have only one. 25 THE COURT: Okay. I'll have a copy made. The reason Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 11 1 I had my clerk call at 11:30 this morning was I thought if I had 2 whatever you all are doing -- I understand it takes time, but I 3 thought if I had whatever you all were doing, I might not have 4 to have a hearing today, but since I didn't have anything from 5 you, I had to schedule a hearing. 6 MR. GINGOLD: Your Honor, may we also have a copy 7 because we've not been provided with one? 8 THE COURT: Okay. 9 MS. SPOONER: For some offices, they didn't receive 10 notice until Tuesday. As you know, there are four agencies 11 within the Department of the Interior who still have no access 12 to e-mail as a result of the IT security issue. And so some of 13 those offices were notified by fax, eventually by Intranet. And 14 so it did take a couple of days to get all the information out 15 there. 16 Interior has also had conference calls with senior 17 management in the regions. Senior management within Interior 18 and senior management within the regions yesterday and today. 19 By now, Interior has contacted all of the regions, had personal 20 phone conversations with all the regions, and with the 80, 8-0, 21 agencies, all in an attempt to provide the Court's instructions 22 to them and to provide guidance. 23 To the extent that the Court elects to give credence 24 to the testimony of the plaintiffs' counsel here today, we would 25 simply request the opportunity to provide -- to inquire into Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 12 1 what they're talking about. As you know, most of the 2 information they've given us is not something that we can 3 actually inquire into to the extent the information does give us 4 actual sources so that we can inquire. Interior has done that 5 and rectified problems that have been pointed out to us. But 6 when the plaintiffs simply refer to somebody as LP or QR, 7 obviously, it's not a problem that we can resolve unless we know 8 about it. Thank you, Your Honor. 9 THE COURT: Let me -- Well, let's get copies of what 10 went out, and then I may have some questions. 11 MS. SPOONER: Thank you, Your Honor. 12 THE COURT: Why don't you wait and look at what they 13 sent out too before you respond further. 14 MR. GINGOLD: Okay. 15 THE COURT: While we're waiting on that, I take it 16 nothing has changed from the conversation we had on Friday in 17 terms of -- I answered all the questions I think that you 18 raised, and clarified everything that I thought could be 19 clarified at that stage, and nothing's really changed from that, 20 right? 21 MS. SPOONER: I brought up the specific items that we 22 had some concerns about, and one additional item has come up. I 23 have no personal understanding of how this program works, 24 Your Honor, but I understand that Interior, when requested, will 25 provide Native Americans with assistance in writing their wills. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 13 1 As you know, wills can dispose of property, and so it would help 2 us if we had some clarification to the Court as to whether 3 Interior should stop providing this assistance pursuant to the 4 Court's order, or if that can continue. 5 THE COURT: Okay. 6 MS. SPOONER: May I have a moment, Your Honor? 7 THE COURT: Yes. 8 (Deputy clerk returns with copies of document.) 9 MS. SPOONER: Thank you, Your Honor. 10 THE COURT: Do you know when this went out? 11 MS. SPOONER: Your Honor, it initially went out on 12 Monday. Some offices, however, especially those who are not 13 able to receive e-mail, would not have received it until 14 Tuesday. 15 THE COURT: Okay. 16 MS. SPOONER: And I can't be certain that every single 17 office actually received it or who received it, but it went out 18 to all employees through NBC, which is the agency within 19 Interior with the facility to do that, and that was done on 20 Monday. 21 THE COURT: So insofar as you're aware, if in fact FP 22 was told today by a BIA official that no checks would be going 23 out as a result of the Court's order, and no lease payments 24 would be processed until this is taken care of, that BIA 25 official is acting contrary to this Monday memo? Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 14 1 MS. SPOONER: If that were the case, Your Honor, that 2 would be true. 3 THE COURT: So the BIA official would be acting 4 incorrectly? 5 MS. SPOONER: That's correct, Your Honor, if that 6 happened. And we would very much like to have the opportunity 7 to find out if it did. 8 THE COURT: Right. And then if she was told this 9 morning that the gag order was still in effect, and her trust 10 check would not be transmitted this morning, that would be 11 incorrect information? 12 MS. SPOONER: I think so, Your Honor, but this is what 13 needs to be clarified. Of course, the information you've been 14 given by counsel for plaintiffs does not in many instances 15 distinguish between communications that do in fact involve the 16 sale of land and those that do not. It if it was a check that 17 didn't go through the routine procedures and involve the sale of 18 land, there might have been a problem. I can't be certain of 19 that. 20 THE COURT: Well, this one said she called to inquire 21 when her lease payment would be paid to her. 22 MS. SPOONER: Then if it purely about a lease 23 payment-- 24 THE COURT: Then that would be incorrect? 25 MS. SPOONER: That would be incorrect, yes. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 15 1 THE COURT: And that's what you told me Friday -- 2 MS. SPOONER: And contrary to the instructions. 3 THE COURT: -- and that's still your position? 4 MS. SPOONER: We ask you, Your Honor, to clarify that 5 it did not -- that your order does not impact leases, and we 6 understood -- we don't have the transcript yet, but we 7 understood Your Honor to say that that was correct, that it did 8 not impact leases. 9 THE COURT: Right. Now, the order you sent out Monday 10 does not say anywhere, though, that no checks may be withheld? 11 It doesn't expressly address checks at all. Am I correct? 12 MS. SPOONER: I don't know, Your Honor. I don't 13 remember seeing it there. The checks, as you know, are -- 14 THE COURT: Did you get your copy back? 15 MS. SPOONER: Yes. The checks, as you know, are 16 mailed centrally from OST, so it's not something that the 17 regions would be mailing directly. But if the Court would like 18 for us -- 19 THE COURT: According to the plaintiffs' information, 20 people are being told as of this morning the check can't be 21 mailed because I ordered it couldn't be, which would not be 22 true. 23 MS. SPOONER: If that happened, it would be contrary 24 to the Secretary's instructions. If the Court wishes us to send 25 out a specific instruction, "do not withhold checks," the Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 16 1 problem is that, as I indicated, the checks are mailed centrally 2 through OST and OTFM, as the Court received testimony regarding 3 that in the 1.5 trial. 4 THE COURT: So they are not in fact being withheld 5 even if someone is told that? 6 MS. SPOONER: I -- that's correct, Your Honor. They 7 are not being withheld. I heard the Secretary issue 8 instructions that they would not be withheld. I was personally 9 in the room when she did that. 10 THE COURT: Okay. Thank you, Ms. Spooner. 11 MS. SPOONER: Thank you, Your Honor. 12 MR. GINGOLD: Your Honor, a few points before I 13 discuss the notice that is represented to have gone out. 14 The notice that was tacked to the door on the Anadarko 15 Agency that we provided this Court was on that door until close 16 of business yesterday afternoon. At the point in time that the 17 defendants wanted to make sure that the world stopped for the 18 trust beneficiaries, everything was done immediately. Whenever 19 it is convenient, and whenever it is to harm the trust 20 beneficiaries, there is nothing that stops the Interior 21 Department from taking action. Whenever it's to protect the 22 trust beneficiaries, there is always a delay at best. And 23 that's what we have here again, Your Honor. 24 Another thing is, it was categorically stated to you 25 on Friday that the checks were not withheld, that those Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 17 1 discussions in the e-mail and memoranda of Swimmer and Erwin 2 were effective musings, that there was nothing to it. It's 3 interesting how those musings are communicated effectively to 4 the field, but the direct instructions are not. 5 I'd also like to point out, no, we're not just dealing 6 with checks, Your Honor, we're dealing with disbursements and 7 withdrawals from trust accounts that go beyond checks. Again, 8 if there's a hold on an account and a person wants to talk to 9 the agency about the hold, so the funds that are either not 10 held, or the funds that are held that shouldn't,be, can be 11 withdrawn, the agency isn't talking to the trust beneficiary 12 about that either. 13 Now, Ms. Spooner raises the issue that they can't 14 probe, I guess, the validity of what plaintiffs represent with 15 regard to these problems, but Your Honor, the evidence in the 16 record is very clear that retaliation is routine and a standard 17 practice. The Special Master explicitly found, and it was not 18 ever refuted or challenged, that there is a palpable fear of 19 retaliation and retribution within the Department of Interior 20 for anything truthfully provided to this Court. 21 Now, what we have here, Your Honor, is, to the extent 22 there's a need to probe this, we would prefer that the Court 23 does it in camera so our clients, trust beneficiaries, who are 24 at the mercy of the BIA in the field, are not punished or the 25 subject of retribution. In the alternative -- Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 18 1 THE COURT: But how does that allow the defendants to 2 contest the basic information? 3 MR. GINGOLD: Perhaps, Your Honor, we need an 4 anti-retaliation order for our clients. We do have it for the 5 government officials. We don't have that covered to our 6 clients. And, Your Honor, if that's the case, we would 7 appreciate that, and then we will go forward. And as long as we 8 have anti-retaliation order that's effective and can be enforced 9 with all the power this court has -- 10 THE COURT: Well, I did one for -- what was her 11 name -- the person who didn't want the function moved New Mexico 12 to -- 13 MR. GINGOLD: Mona Infield? 14 THE COURT: Mona Infield. I did a specific order 15 protecting her, didn't I? 16 MR. GINGOLD: No, you did not. She was a government 17 witness. She's a Department of the Interior employee that 18 provided testimony. She was covered by the anti-retaliation 19 order. There was a separate one, Your Honor, entered for a 20 Solicitor's Office attorney -- no, there wasn't either. It was 21 part of this as well. There are two orders, to my recollection, 22 Your Honor. There's an anti-retaliation order entered by this 23 Court and there's an anti-reprisal order that was entered by -- 24 that was entered by the Special Master because of the fear that 25 Interior Departments had in talking to him about problems. But, Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 19 1 Your Honor, the order that had been entered is May 21, 1999, and 2 it talks about -- and let me read the last paragraph: 3 "It is hereby ordered that the Department of the Interior, 4 together with all of its supervisory officials, are hereby 5 enjoined from take any retaliatory action or, making any threats 6 of such action for providing testimony or information of this 7 action against: 8 "1. One, any person who has been identified as a 9 potential witness in this case on plaintiffs' list of witnesses 10 expected to testify on 'fixing the system.' In response to May 11 4, 1998 scheduling order filed October 19, 1998. 12 "2. Any person who is called upon through legal 13 process, e.g., Notice of Deposition, subpoena, et cetera, to 14 give testimony or provide other information in this litigation 15 or; 16 "3. Any person individually identified by plaintiffs 17 in writing to defendants as a potential witness in this action." 18 Your Honor, none of our clients are currently 19 identified within that. If you would like us -- 20 THE COURT: But you could, under that third paragraph, 21 identify these people who could come forward and give affidavits 22 so they could look into the facts. 23 MR. GINGOLD: Absolutely, Your Honor. 24 THE COURT: And they may be protected under that order 25 that I've already done. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 20 1 MR. GINGOLD: And, again, that order was designed 2 originally to protect witnesses with regard to trial one, and as 3 long as it's understood that this covers -- 4 THE COURT: Well, you can look at the and order see if 5 it needs to be modified or amended, but on its face it doesn't 6 seem like it would need to be. I'll look at the order again as 7 well, but it seems like it would cover it if you identify the 8 people, and then you have retaliation order in place to protect 9 them. You can provide their names and affidavits to the 10 defendants, and then they can quit shadow boxing and get the 11 true facts. 12 MR. GINGOLD: That's right, and when we have the true 13 facts, the Court can take appropriate action. 14 THE COURT: Right. 15 MR. GINGOLD: Now, Your Honor, let me also point out, 16 and it's been part of the record of this case for more than 17 eight years, the Interior Department doesn't have a compliance 18 system in place to enforce anything. As a matter of fact, what 19 they have had had, and made reference to in various affidavits 20 and in testimony in court and in deposition, is that if 21 instructions are issued, they assume the instructions are being 22 complied with. 23 Your Honor, that assumption has been rebutted 24 repeatedly. So one of the other problems that exist is whether 25 or not the National Business Center -- Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 21 1 THE COURT: They have an Inspector General, and he has 2 done reports in this case that have been pretty interesting. 3 MR. GINGOLD: Yes, they've been pretty interesting, 4 but as this Court has noted, not complete because they did not, 5 as a matter of fact, finish investigating the issues with regard 6 to the e-mail destruction, and that is one of the reasons this 7 Court referred to the Special Master 37 contempt orders, because 8 of the failure to do a complete investigation. So while the 9 Inspector General has had some interesting language with regard 10 to bunker mentality and things of that sort, he never went to 11 the end of the investigation to establish anything beyond those 12 conclusions, and never reached any conclusions as a matter of 13 law because of the absence. Your Honor, we're dealing with 14 statements that are made to you, explicit statements: Checks 15 were not withheld. Funds were not withheld from our clients. 16 We have information to the contrary. We don't before the 17 Inspector General -- 18 THE COURT: Well, let's start with, give me the 19 information in a form that they can respond to. Let them 20 respond, and then we'll see where we are. If you prove your 21 case that that's what's happening, then, obviously, I'm going to 22 take some action. 23 MR. GINGOLD: Thank you, Your Honor. 24 THE COURT: But you have to give them an opportunity 25 to contest it, and I presume the only way to do that is with Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 22 1 some sort of nonretaliation order. 2 MR. GINGOLD: We feel it's absolutely essential, 3 especially since we need to be able to enforce something to 4 protect these people based on the history of this case. 5 Now, Your Honor, we were not provided a copy of what 6 the defendants represent -- or the Justice Department represents 7 the defendant sent out to the field, apparently on Monday and 8 Tuesday by e-mail and fax, and, by the way, fax machines work 9 instantly so we don't understand why it takes another 24 hours 10 to do that. 11 But I would like to point out a couple of questions 12 that we have anyway. First, with regard to paragraph number 13 four of the notice that we have been provided. Again, a notice 14 that has been represented as being distributed to all agencies 15 and area offices I suppose, and realty offices on Monday and 16 Tuesday. 17 Paragraph four states specifically, "Communications 18 with class members regarding the implementation [e.g., accepting 19 payment, deed transfer, et cetera,] of a sale, exchange, 20 transfer, conversion of [individual Indian trust], and that had 21 been agreed to by all parties and approved by the Bureau of 22 Indian Affairs prior to August 31, 2004, order are not 23 prohibited by the order." 24 There is another sentence in the paragraph that's not 25 relevant to my question. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 23 1 Your Honor, I don't recall having any discussion or 2 this Court making any statement that that which has been 3 accepted and agreed to by the parties is covered by this unless 4 it's approved by the Bureau of Indian Affairs. We have ample 5 evidence in this litigation that the Bureau of Indian Affairs 6 sometimes can take years before it takes any action. The fact 7 that the parties agreed to it, and the fact they've executed 8 the documents related to it, and in some cases even funds have 9 been escrowed with regard to it, was not conditioned upon 10 approval by the BIA. As a matter of fact, we're not only aware 11 of years for transactions to be approved with regard to land, 12 and we've seen that with regard to Anadarko -- for example, Your 13 Honor, when -- at least as far back as 1999, an original 14 consent was given for the sale of land, and it was only part of 15 this Auction Number 69 that was to be held this September that 16 that was actually going to be held. So, Your Honor, we do not 17 believe it's appropriate to condition an exclusion based on 18 approval of -- 19 THE COURT: I thought that Ms. Spooner asked me 20 whether this meant to stop things that had already been 21 approved, where the only question was mailing out the check, or 22 mailing out the deed or whatever it was, where everything was 23 already basically done, and it was just a matter of mailing it 24 out. I thought I answered that that's not a problem. 25 MR. GINGOLD: Your Honor, we don't have the benefit Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 24 1 the transcript right now -- 2 THE COURT: I understand, but I thought that's what 3 happened. So I don't think this is inconsistent with what I 4 thought happened. Whether that should be the final result, 5 obviously is a problem with the Court answering questions like 6 that off the top of the head at a hearing. But in the interim, 7 I don't have any great quarrel with thinking that things that 8 were already finally approved and done, and it's just a 9 ministerial act of writing the check or whatever, was not 10 intending to interfere with in saying there should be this check 11 on the rights of the trustee -- the holder -- the beneficiary to 12 consult with counsel. It's really too late to consult with 13 counsel if they've already agreed to the sale and the sale has 14 been approved and all that sort of stuff. I'm not purporting to 15 go back and try to set aside any of these sales or anything. 16 MR. GINGOLD: Your Honor, we didn't suggest that. In 17 fact, we suggested that if these sales had been agreed to by the 18 parties -- 19 THE COURT: Well, that's what it says, agreed to by 20 the parties and approved by BIA prior to my order. 21 MR. GINGOLD: That's right, but we are sensitive to 22 the in fact that, again, unless this an action that would harm 23 the beneficiaries, the BIA is not going to move quickly. And, 24 Your Honor, let me point something out. This is not a recent 25 problem with the BIA with regard to approval issues. As a Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 25 1 matter of fact, when Mr. Harper and I were on Navaho 2 reservation, we were talking to a trust beneficiary whose 3 parents' estate went into probate in 1946, and last year the 4 probate was just completed. We are dealing with real serious 5 problems, and we would like to see -- and that's what we raised 6 with this Court on Friday, to the best of my knowledge, and, 7 again, I will confirm that once we see the transcript, that if 8 the parties had agreed to it, those transactions should be able 9 to go through without further interference, and we did not 10 suggest that any transaction should be set aside. There's a 11 reason for that. These transactions that we discussed were 12 negotiated transactions. The parties understood they were 13 getting whatever value they understood. The purpose of what we 14 did in the TRO was to ensure that the trust beneficiaries had 15 adequate information to make an informed decision. 16 THE COURT: Right. 17 MR. GINGOLD: The fact that they would have the 18 adequate information to have an agreement without the BIA who -- 19 I'm not sure what assistance they provide because there's no 20 evidence in this record of more than eight years that they've 21 provided any assistance -- shouldn't affect the ability of the 22 parties to go forward if the transaction was agreed to. So, 23 Your Honor, we would like that language to be stricken, if 24 possible, because there are a number of people who have had 25 transactions, at least based on what I've been told on the Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 26 1 telephone, agreed to for some time that have not been approved. 2 Long before, Your Honor, we filed a motion -- 3 THE COURT: Well, if they haven't been approved, this 4 language doesn't apply, if they haven't been approved. 5 MR. GINGOLD: No. My understanding is, the 6 transaction can't go forward unless there was an approval, even 7 if it was agreed to prior to even the filing of a TRO. If the 8 parties agree to a transaction, that transaction cannot go 9 forward based on this language, at least as I understand it, 10 unless the BIA approves it. Even if, for example, in January 11 the transaction was approved, or last January the transaction 12 was agreed to by the parties, whether or not the BIA has taken 13 any action. There's no reason to delay -- 14 THE COURT: It says agreed to by the parties and 15 approved by BIA prior to my August 31st order. 16 MR. GINGOLD: Yes, but my point is, many transactions 17 have been agreed to but there's never been an approval by the 18 BIA. Why should -- 19 THE COURT: I understand. If they haven't been 20 approved by BIA prior to my August 31st order, then the notice 21 is going go to them, and this isn't saying to the contrary. 22 MR. GINGOLD: No, but what I'm suggesting, Your Honor, 23 is, for those trust beneficiaries who agreed to a transaction, 24 whether it was six weeks ago or six years ago, and the BIA 25 hasn't taken action to approve it, that transaction should be Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 27 1 able to go forward. 2 THE COURT: After the notice. 3 MR. GINGOLD: Well, Your Honor, if they understood 4 what they were negotiating, the purpose of the notice isn't 5 necessary. 6 THE COURT: The purpose of the notice is to ensure 7 from this point forward that those who have not been approved 8 get the notice. 9 MR. GINGOLD: Right, even after they've agreed to the 10 transaction. 11 THE COURT: Even though they agreed to the 12 transaction, yes. 13 MR. GINGOLD: Your Honor, there -- 14 THE COURT: I'm treating everybody exactly the same 15 there. 16 MR. GINGOLD: Okay, then we -- 17 THE COURT: The only ones I'm not treating the same 18 are those where it had already been approved by BIA, and then 19 that's really the final sale, and I'm not setting aside any 20 sales. 21 MR. GINGOLD: And I would assume, then, that under 22 those circumstances, approval will not be unduly withheld or 23 denied, correct, at this point in time for those that have been 24 agreed to? 25 THE COURT: Well, they can't approve any more until Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 28 1 they get the notice. 2 MR. GINGOLD: I know, but once the notice -- 3 THE COURT: Once the notice goes out -- I haven't 4 interfered with anything once the notice goes out once the 5 notice goes -- 6 MR. GINGOLD: So we can go forward? 7 THE COURT: All I've done is say notice. The person 8 can waive counsel, or can meet with counsel and then say, "I 9 want to go forward," whatever they want to say. 10 MR. GINGOLD: And we can provide this Court, for 11 example, with individuals who wanted to go forward without the 12 need for notice, correct? 13 THE COURT: Sure. 14 MR. GINGOLD: Okay, and that could be expedited? 15 THE COURT: Sure. 16 MR. GINGOLD: Terrific. 17 THE COURT: They can waive the right to notice, I 18 presume. All I said in the order was, waive right to consult 19 with counsel, but I don't know of any reason somebody who 20 specifically wants to come in and say, "I not only waive my 21 right to consult with class counsel, I waive my right to any 22 notice, "can do that, too, as far as I know. 23 MR. GINGOLD: Your Honor, many of the individuals with 24 whom I've spoken, and which Mr. Harper has spoken -- 25 THE COURT: Would like to do that. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 29 1 MR. GINGOLD: Well, actually, have had counsel. 2 We're talking about -- Your Honor, there were transactions that 3 are million dollar transactions. 4 THE COURT: Okay. 5 MR. GINGOLD: They've had counsel. These are 6 sophisticated individuals. 7 THE COURT: Right. 8 MR. GINGOLD: So they've actually had counsel and they 9 -- 10 THE COURT: They can waive everything. 11 MR. GINGOLD: Terrific. 12 I would also like to point to paragraph number eight. 13 What we have here is the government's definition of what this 14 class is, and as this Court knows, that's not what we've 15 described as our case, and the government really -- it's usually 16 up to the plaintiff to describe the case, it's not up to the 17 defendants. As we have said and we have learned in eight years 18 of this -- more than eight years of this litigation, there are 19 individuals who are trust beneficiaries because they own 20 interest in lands that have never had an account, although they 21 should have had an account. The former Special Trustee, Mr. 22 Homan, explicitly testified that all trust beneficiary should 23 have an account. So the fact that they do not have an account, 24 or they formerly had an account, shouldn't determine whether or 25 not they're covered by this. If they are trust beneficiaries Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 30 1 and they are beneficial owners of trust assets, Your Honor, that 2 is who the members of this class are. 3 THE COURT: Well, is there a roster somewhere that the 4 employee receiving this would know that? I suggest there's not. 5 MR. GINGOLD: Your Honor, there's no roster -- 6 THE COURT: So for the employee receiving this, why 7 isn't this good enough to tell them what to do? 8 MR. GINGOLD: Well, for example -- as we have been 9 told frequently by the government, one of our named plaintiffs, 10 Mr. Molson, doesn't have an account but he has trust land. He 11 is clearly a trust beneficiary, and he would be excluded. 12 THE COURT: At our October 19th hearing you can give 13 me some specific language if you want to try to modify that. 14 MR. GINGOLD: Okay. 15 THE COURT: You have to look at this from the point of 16 view of the employee that's getting this notice and how they're 17 going to identify those people. 18 MR. GINGOLD: So it's basically a convenience issue at 19 this point in time? 20 THE COURT: It's a practical issue of saying class 21 members are present former employees of IM accounts, and anybody 22 who claims to be a beneficiary or something or other. I mean, 23 how does that identify anybody for the employee who gets this 24 notice? It doesn't do a thing toward -- 25 MR. GINGOLD: Well, that's actually practically easy, Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 31 1 Your Honor. For example, Tom Molson is identified as an owner 2 of trust land, but he doesn't have an account. 3 THE COURT: Identified by Interior? 4 MR. GINGOLD: Beg your pardon? 5 THE COURT: Identified by Interior? 6 MR. GINGOLD: Yes, he is. 7 THE COURT: In what record? How does the employee 8 figure that out? That's what I'm talking about. 9 MR. GINGOLD: Well, if the realty office -- 10 THE COURT: This is the notice going to the employees. 11 MR. GINGOLD: But, Your Honor, we're dealing with land 12 sales. If the realty office has him identified as a trust 13 beneficiary, whether he has an account -- 14 THE COURT: Okay. Okay. So there's some -- 15 MR. GINGOLD: And by the way, you also have -- 16 THE COURT: So there's some language that would easily 17 cure that, you think? 18 MR. GINGOLD: That's correct, and, also, Your Honor, 19 although we are all aware of the problems with regard to LRIS 20 and IRMS, individuals are identified with regard to ownership in 21 those particular systems that do not -- are not identified as 22 having an account. For example, and let me just point this out, 23 and this Court went through a fairly lengthy examination of 24 Donna Erwin during trial one in this regard. The question was, 25 what happens when accounts are closed, when accounts are off the Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 32 1 system? 2 Because Donna Erwin testified that if there is no 3 activity -- transaction activity on an account for an 18-month 4 period, the practice was to close the account. And you 5 explicitly asked Donna Erwin, "What happens when you close the 6 account?" 7 And Donna Erwin responded, "The information is off the 8 system and lost. 9 And this court responded, "Lost forever?" 10 And Ms. Erwin said, "Forever." 11 That was the explicit dialogue. So, Your Honor, it is 12 a little more complicated than that because we've had at least 13 evidence of significantly in excess of a hundred thousand 14 accounts closed since this litigation was filed. Whether or not 15 these people own interest in land -- because if the -- if the 16 transactions were not recorded on the Interior systems, whether 17 or not they were recorded on compacting or contracting tribe 18 systems, those are accounts -- these people wouldn't be covered 19 based on the language. So that's an additional problem, 20 Your Honor. But there is information -- the land record 21 information should identify that independent of the transaction 22 information. 23 Now, if this Court would like us to provide 24 clarification, we will certainly do that. 25 THE COURT: Any suggestions you want of how the notice Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 33 1 should be modified or changed, you can make before that October 2 19th hearing so they can respond. 3 MR. GINGOLD: And, Your Honor, we also believe it 4 would be very helpful if in addition to a notice that goes out 5 that says don't withhold checks, that a notice goes out, again, 6 very simply, to people who can understand simply, this applies 7 to land sale transactions. The operative paragraph, based on 8 what this Court has said, is paragraph four. That's the key 9 paragraph in this entire notice. So, therefore, everything 10 else, all communications in the ordinary course of business, 11 whether you're dealing with probate, ownership records, 12 confirmation, information necessary for mortgages, everything 13 else is okay. That's what we've been talking about here. It 14 seems to me, based on the -- 15 THE COURT: I'm not going that far. I haven't said 16 everything else is okay. 17 MR. GINGOLD: All right. 18 THE COURT: All I said in the august 31st order was, 19 this is what I'm doing on land sales. 20 MR. GINGOLD: No, no. I'm saying -- 21 THE COURT: The government then raised two through 22 eight, other items, and that's what I said I'm going to hear 23 more about all those other items October 19. 24 MR. GINGOLD: No, but all my point was, in that 25 interim period of time, there's no restriction on communication Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 34 1 with regard to those other items. 2 THE COURT: I haven't said that. 3 MR. GINGOLD: Oh. There is. 4 THE COURT: No, I haven't said either way. I said I 5 don't know enough about them to express a view. If they are 6 covered by the December 2002 order, they're covered by it. I 7 don't enough about them. You and the government know more about 8 what all those other programs are than I do. I don't know 9 anything. 10 MR. GINGOLD: No, but for example, Your Honor 11 explicitly pointed out leases. Leases were not covered. For 12 example, there are things that are -- 13 THE COURT: Right. 14 MR. GINGOLD: -- easy to identify. 15 THE COURT: Right. 16 MR. GINGOLD: It would seem to me, to avoid further 17 confusion of -- 18 THE COURT: But their number one here only says -- the 19 order says, sale, exchange, transfer, conversion. I mean, I 20 don't know how they could make it more clear. You're saying 21 they don't need all of this? 22 MR. GINGOLD: No. All I'm saying is, you made it very 23 clear in your original and order and that didn't stop it. What 24 we have here is just a limitation with regard to the sale, 25 exchange, transfer, or conversion of individual Indian trust Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 35 1 land. That's all we're talking about right now with regard to 2 the communications. 3 THE COURT: Well, we don't have just that. We still 4 have the 2002 order which, as far as I know, they never sent to 5 anybody. I don't remember any evidence that that was sent to 6 all employees like this one was. 7 MR. GINGOLD: We have no idea either, Your Honor. 8 THE COURT: But if it was sent, you know, it was two 9 years ago, and the likelihood anybody has it at hand is probably 10 not all that great. 11 MR. GINGOLD: And there are new employees that come 12 in, too, so who knows. 13 THE COURT: I mean, I think if you've got specific 14 changes you want to make in this, we ought to take it up at that 15 October 19th hearing, and you out to -- 16 MR. GINGOLD: We will do so, Your Honor. 17 THE COURT: -- give them the language. 18 MR. GINGOLD: And, Your Honor -- 19 THE COURT: Something specific in the meantime that 20 you think needs to be done about checks -- because her 21 representation is there is no delay in the issuance of checks 22 because they're issued centrally. The misinformation that's 23 given to people, that the checks might be withheld is that, 24 misinformation, and she explicitly conceded today that that's -- 25 if an employee said that to this IF, or TF, or whoever that one Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 36 1 was, that's incorrect. Is there something more the Court needs 2 to do about that now? 3 MR. GINGOLD: Well, Your Honor, right now you said -- 4 THE COURT: And to do it, don't I need an affidavit 5 from TF so that they can find out the facts? 6 MR. GINGOLD: Yes, and we also need an 7 anti-retaliation coverage as well. 8 THE COURT: Right. 9 MR. GINGOLD: And we will provide that language. 10 THE COURT: Okay. Okay. All right, then, the only 11 last question she raised with me is this question about 12 continuing to write wills. What's the plaintiffs' position 13 about that? 14 MR. GINGOLD: Your Honor, we believe that the wills 15 continue. People are in circumstances which require wills to be 16 written. It becomes extremely complicated when people die 17 intestate. Wills should be able to go forward. Otherwise, 18 there will be serious problems. 19 THE COURT: Okay. Any other things that you want to 20 raise today? 21 MR. GINGOLD: No, Your Honor. 22 THE COURT: Ms. Spooner? 23 MS. SPOONER: Just a few points, Your Honor. I'm sure 24 that counsel for plaintiffs did not mean to state to the Court 25 that, even though I think I heard it from both of them, that the Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 37 1 timing of the Interior sending instructions to the field was 2 different with respect to this latest order than it was with the 3 first one, the record will show that the next business day 4 instructions went out on both, and that instructions continued 5 to go out in the following days. So it's simply not true that 6 the Department of the Interior is using different procedures or 7 different timing to send out the Court's orders. 8 Secondly, Your Honor, we would oppose having an in 9 camera proceeding. 10 THE COURT: I took care of that because I told him get 11 an anti-retaliation order and give you the evidence so you can 12 look at it. I don't want to do anything in camera either. 13 MS. SPOONER: I think it's very important, Your Honor, 14 that the plaintiffs have an opportunity to know what's going on 15 here. In fact, we would ask that the transcript of that 16 proceeding be put on plaintiffs' Web site so that the plaintiffs 17 will know. There are a number of pleadings that -- for 18 instance, their equal access to Justice Act claim was not put on 19 their Web site. So it is important, I think, for the Court and 20 for the parties that the plaintiffs be kept informed of what's 21 going on in the Court here today and in subsequent proceedings. 22 With respect to an anti-retaliation order, Your Honor, 23 it's very clear that the evidence, if you can call it that, that 24 the plaintiffs have submitted today does not establish any 25 retaliation. The issuance of an anti-retaliation order is Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 38 1 entirely unnecessary. 2 THE COURT: Well, I think the '99 order is already out 3 there, which I think covers any witness here. 4 MS. SPOONER: Well, if that's the case, Your Honor, 5 that would be fine. 6 THE COURT: I'll look at it again, but I know that -- 7 I think that's what I was thinking of in terms of the Mona 8 Infield situation that I was applying, and I know that was 9 sometime after trial one when the whole Mona Infield thing 10 arose. Is my recollection, although I would admit the years are 11 blending together now, but -- 12 MS. SPOONER: We would urge the Court to take evidence 13 before it concluded that there was any retaliation going on here 14 rather than simply the statements, often second and third hand, 15 from plaintiffs' counsel. 16 THE COURT: Well, I don't think that that order needs 17 to be modified but, I'll pull it out and look at it again. 18 MS. SPOONER: Thank you, Your Honor. 19 THE COURT: But I think it would cover the situation. 20 MS. SPOONER: With respect to the testimony of Donna 21 Erwin, plaintiffs' counsel has not accurately characterized it. 22 We have briefed it to the Court very recently. So to the extent 23 the court wishes to consider that testimony in the Court's 24 questioning of Ms. Erwin, it is fully briefed, with citations to 25 the record. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 39 1 THE COURT: What's it briefed in connection with? 2 MS. SPOONER: With respect to these matters, 3 Your Honor, the request for a temporary restraining order and 4 the Court's entry of -- 5 THE COURT: Before the August 31 order? 6 MS. SPOONER: I think so, Your Honor. I will check 7 that to be certain. 8 THE COURT: Okay. 9 MS. SPOONER: And finally, the Court was -- 10 THE COURT: Because I remember what he said being in a 11 footnote somewhere, but I don't remember the response. 12 MS. SPOONER: That's correct, Your Honor. We did 13 respond to it. 14 Finally, the Court was concerned that perhaps Interior 15 employees were not fully informed of the Court's 2002 order, the 16 original class -- 17 THE COURT: I don't know that, no. 18 MS. SPOONER: Well, one of the things I want to draw 19 the Court's attention to is the fact that the instructions that 20 went out this week not only gave the individuals information and 21 the text of the Court's most recent order, but also repeated -- 22 THE COURT: I saw it repeated some parts of that 2002 23 order, yes. Yes, I did see that on page two and the top of page 24 three; right. 25 MS. SPOONER: Right, Your Honor. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 40 1 THE COURT: Right. I just didn't know if anything had 2 been done in 2002, but I see this in here. And this repeats 3 that thing about routine communications, yes, which I think is 4 important. 5 MS. SPOONER: It is important, Your Honor. Thank you. 6 I've been handed, Your Honor, defendant's supplemental 7 memorandum in opposition of plaintiffs' motion for a temporary 8 restraining order and for preliminary injunction. 9 THE COURT: So that's September 15? 10 MS. SPOONER: Yes, and the Donna Erwin testimony is 11 discussed at page 21. 12 THE COURT: Okay. 13 MS. SPOONER: Thank you very much, Your Honor. 14 THE COURT: Okay. I mean, I understand, Ms. Spooner. 15 I was upset with you the other day because of where we were 16 then. I understand the Interior Department is a big department 17 and it takes time to get the right instructions out to 18 everybody, and I'm not hollering at you today, you notice, 19 because I know it takes some time in a big department, but I do 20 want people to quit telling people that I've ordered checks not 21 to go out. I haven't ordered that. 22 MS. SPOONER: I understand that, Your Honor. 23 THE COURT: And you told me the Secretary hasn't 24 ordered that, and for employees to keep telling people that I've 25 ordered if does annoy me, to say the least. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 41 1 MS. SPOONER: I have not spoken to her about it, but 2 I'm confident that it annoys the Secretary as well. 3 THE COURT: I'm glad to hear that. 4 MS. SPOONER: Running a large organization such as 5 Interior is not as easy as it might seem, and sometimes -- 6 THE COURT: I'm aware of that, and I'll leave it at 7 that. 8 MS. SPOONER: Your Honor, with respect to the Court's 9 reaction at the hearing we had on Friday, the thing that's most 10 disturbing to us about that is the Court's reaction was prompted 11 by wholly incompetent, even misleading evidence from the 12 plaintiffs' counsel. They submitted to you one tiny piece of an 13 e-mail without verification, without any indication as to what 14 was behind it. It was not worthy, I think, of the Bar, and I 15 think it's only fair that the Court have all of the evidence. 16 Thank you, Your Honor. 17 THE COURT: I agree we need all the evidence, but I 18 will tell you what I said on Friday was what most disturbed me 19 about that whole scenario was the thought process that went 20 into, "We've been blessed by another order by Judge Lamberth, 21 and now we're going to stop all checks." There was a thought 22 process that went into that little memo, even though it carried 23 out, that is very troublesome. 24 MS. SPOONER: Number one, it was not a memo, and it 25 was only part of possible interpretations of the Court's order. Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 42 1 I can assure you, Your Honor, that government officials in both 2 the Department of the Justice and Department of the Interior 3 have attempted mightily to construe your order as best we 4 possibly can. We have had some difficulty about it, and there 5 have been some very legitimate questions as to how broad the 6 Court's order is, and given that the Court has concluded that a 7 program under which Interior assists Native Americans to sell 8 their trust land that's been in effect for decades under 9 regulations that no one has challenged, the Court now concludes 10 that that's a violation of the 2002 order, is not something that 11 we ever conceived us. So it is important for to us consider 12 these things very carefully, and to consider every possible 13 ramification of the Court's order. 14 Thank you, Your Honor. 15 THE COURT: Okay. 16 MR. GINGOLD: Your Honor, the evidence that was 17 provided to you on Friday was the evidence that we had. The 18 government -- we would never have even had to file a temporary 19 restraining order if in response to a telephone call from me to 20 the Justice Department when we first found out about the auction 21 -- the question was, "Can you give us the information so we can 22 make sure that the trust beneficiaries are given adequate 23 information so this can go forward?" And we were told to go fly 24 a kite, Your Honor. We never get anything from the government. 25 They withhold discovery, and they have, and they've destroyed Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 43 1 e-mail. There's ample record of that. That is proven beyond a 2 shadow of a doubt. The only documents we had is what we gave 3 you. If we had more, we would have given you them, too. And 4 Your Honor, I haven't seen the government provide you with this 5 chain of e-mail that was referenced. 6 If in fact there's a chain, we too would like to see it, 7 Your Honor, because we would like to have a complete and 8 accurate record. So if Ms. Spooner has all of it, including the 9 CC's, and everyone else, and the responses from the CC 10 recipients, that's the chain of e-mail. Let's see if it exists. 11 So to the extent it is inaccurate, Your Honor, we welcome 12 accuracy and completeness. We just have never seen it from the 13 government in this litigation. So, Your Honor, we're not going 14 to allow our clients to be damaged based on the fact that the 15 government is not forthcoming with information. 16 What we have we will give you. If they have all the 17 information they claim to have, let's see it, let's not just 18 talk about it. And, again, we are now a week beyond that and we 19 still don't have it. So where is it? 20 I would also like to point out that the evidence of 21 retaliation is not second and third hand representation of 22 plaintiffs' counsel. We have testimony under oath. We have 23 unequivocal testimony under oath, not cute conditioned juats, 24 where people have been harmed, including testimony from the 25 Special Trustee himself, Mr. Homan, from Joe Christie, his Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 44 1 Special Assistant; from Mona Infield. We have it, and, 2 Your Honor, it is not a question of speculation. Perhaps the 3 Justice Department, for once, should read the records of these 4 proceedings before making misrepresentations to this Court. 5 So, Your Honor, we appreciate everything that this 6 court is doing. We'd also like to point out that when the 7 notice went out after the 29th, I believe, that the next 8 business day it went to Anadarko to stop all communications with 9 the trust beneficiaries. But it took two business days to 10 correct the problem, Your Honor. That's the point that 11 Mr. Harper and I made. There is a tremendous difference in how 12 the government acts when it wants to harm our clients and the 13 time it takes when this Court orders the government to protect 14 the trust beneficiaries that they have an obligation under the 15 law to protect. 16 THE COURT: I'll see you all on the 19th. 17 (Whereupon, the proceedings in the above entitled matter 18 concluded at 3:58 p.m.) 19 20 21 22 23 24 25 Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d Page 45 * * * * * * CERTIFICATE I, BRYAN A. WAYNE, Official Court Reporter, certify that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter. __________________ BRYAN A. WAYNE Bryan A. Wayne, RPR, CRR Official Court Reporter d00f3a1d-898f-43ed-9bed-e14c592fa14d