IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL, et al., ) ) No. 1:96CV01285 Plaintiffs, ) (Judge Hogan) v. ) ) KEN SALAZAR, Secretary of ) the Interior, et al., ) ) Defendants. ) ) INTERIOR DEFENDANTS’ MOTION FOR PERMISSION TO COMMUNICATE WITH CLASS MEMBERS REGARDING TRUST LAND CONSOLIDATION BACKGROUND On December 23, 2002, the Court prohibited the parties, their agents, and their counsel from communicating with any class member regarding the litigation or the claims involved therein, absent an order from the Court permitting communication. On September 29, 2004, the Court amended the December 23, 2002, Order to include a ban on communications regarding the sale or transfer of land. On December 7, 2009, the parties executed a Settlement Agreement that was contingent on the enactment of legislation to authorize and fund the settlement. A major part of the Settlement Agreement is the establishment of a Trust Land Consolidation Fund. Section F.1 of the Agreement provides: “Conditioned on the enactment of the necessary legislation, the Interior Defendants shall distribute the Trust Land Consolidation Fund in accordance with the Land Consolidation Program authorized under 25 U.S.C. §§ 2201 et seq., any other applicable legislation enacted pursuant to this Agreement, and applicable provisions of this Agreement.” On November 17, 2010, the parties modified the Settlement Agreement to incorporate “certain additional terms” into the Settlement Agreement “if such additional terms are included in the enacted legislation implementing the Settlement.” Attachment 1. One such term sets the amount of the Trust Land Consolidation Fund at $1.9 billion. Another term related to the Trust Land Consolidation provides: “OPERATION – The Secretary shall consult with Indian tribes to identify fractional interests within the respective jurisdictions of the Indian tribes for purchase in a manner that is consistent with the priorities of the Secretary.” Attachment 1, Exhibit 1 at 3. On November 30, 2010, the House of Representatives joined the Senate in passing the Claims Resolution Act of 2010 (the Act). Title I of the Act contains the Cobell settlement legislation. The President signed the Act into law on December 8, 2010. Claims Resolution Act of 2010, Pub. Law No. 111-291, 124 Stat. 3064 (2010). Title I, §101(e)(2), of the Act contains the provision requiring the Secretary of the Interior to consult with Indian tribes about the identification of fractional interests for the land consolidation program. Representatives of the Indian tribes and their staff may in many instances also be class members in Cobell. Thus, the tribal consultation required under the Settlement and the Act require communication with class members. Such communications are prohibited by the December 23, 2002 and September 29, 2004 class communication orders. Interior Defendants thus request permission from the Court to engage in the necessary consultation.1 1/ Defendants’ counsel conferred with Plaintiffs’ counsel about this motion on March 28, March 29, and April 4, 2011. Plaintiffs’ counsel indicated that Plaintiffs will oppose this motion. 2 DISCUSSION The December 23, 2002 and September 29, 2004 orders ban communications with class members, absent prior permission from the Court. In particular, the December 23, 2002 Order provides that: during the pendency of the instant litigation, the parties to the litigation, their agents and officials, and their counsel shall not communicate, through the United States mail or any other mode of communication, with any class member in this litigation regarding this litigation or the claims involved therein, except as specifically permitted by order of this Court. Order of December 23, 2002 at 18-19. The September 29, 2004 Order provides that: during the pendency of the instant litigation, the parties to the litigation, their agents, representatives, employees, officials, and counsel shall not communicate, through the United States mail or any other mode of communication, with any member of the plaintiff class in this litigation regarding the sale, exchange, transfer, or conversion of any Indian trust land unless such communication is conspicuously marked with a notice that has been previously submitted to and approved by this Court. Order of September 29, 2004 (Dkt. No. 2708).2 Any communication about the settlement necessarily involves communication “regarding this litigation or the claims involved therein” and thus would run afoul of the December 23, 2002 Order. Also, because the $1.9 billion trust land consolidation is undisputedly a prominent feature of the settlement, communications regarding this aspect of the settlement might violate the September 29, 2004 Order. 2/ On October 1, 2004, the Court clarified a separate provision in the September 29, 2004 Order, by limiting its impact to land sales communications. Order of October 1, 2004 (Dkt. No. 2713). On October 22, 2004, the Court further clarified the September 29, 2004 Order in several respects, including to specify that it does not apply to oral communications. Cobell v. Norton, 224 F.R.D. 266, 288 (D.D.C. 2004). On November 17, 2004, the Court clarified the specifics regarding the notice and waiver forms and procedure applicable to all written land sales communications. Cobell v. Norton, 225 F.R.D. 4 (D.D.C. 2004). 3 But both the Settlement Agreement and the Act mandate that Interior consult with Indian tribes about the trust land consolidation. This consultation process is expected to take several months and should begin soon. Interior needs to begin these government-to­government consultations soon to be ready should the agreement be finally approved by the court, to avoid losing valuable time to prepare for the potential disbursement of a significant amount of funds and the implementation of a substantially enlarged Interior program upon approval of the settlement. This consultation process will require communications with Cobell class members within the Indian tribes. The Court recently permitted limited communications related to the settlement. On April 8, 2010, while the settlement legislation was still pending before Congress, the Court granted Interior Defendants’ Unopposed Motion for Permission to Communicate with Class Members. Attachment 2, at 4 (April 8, 2010 Hearing Transcript); Attachment 3 (April 12, 2010 Minute Entry). The order permitted a small number of officials from the Department of the Interior to communicate with class members to provide information about, and otherwise discuss, the proposed settlement. Now that Congress has enacted the Act and the Court has preliminarily approved the Settlement Agreement, broader communication authority is necessary. It is not feasible to have all communications about the trust land consolidation program funneled through the limited number of officials currently authorized to communicate with class members. In particular, Secretary Ken Salazar, Deputy Secretary David Hayes, and Solicitor Hilary Tompkins are currently authorized to communicate with class members, but the demands on their time from their multiple duties make it impossible for them to engage in the many 4 discussions and communications with those in Indian country needed to plan and implement the trust land consolidation program. Therefore, pursuant to the terms of the December 23, 2002 Order, Interior Defendants ask the Court for permission for Interior officials generally to communicate with class members about the trust land consolidation program as envisioned in the Settlement Agreement, including communications that involve discussion about the transfer or sale of Indian land under that program. CONCLUSION For these reasons, Interior Defendants respectfully ask that the Court grant its motion. Dated: April 6, 2011 Respectfully submitted, TONY WEST Assistant Attorney General MICHAEL F. HERTZ Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director /s/ Robert E. Kirschman, Jr. ROBERT E. KIRSCHMAN, JR. Deputy Director D.C. Bar No. 406635 Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 616-0328 5 CERTIFICATE OF SERVICE I certify that on April 6, 2011, Interior Defendants’ Motion for Permission to Communicate with Class Members Regarding Trust Land Consolidation 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/ Robert E. Kirschman, Jr. Robert E. Kirschman, Jr. IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL, et aI., ) ) Plaintiffs, ) ) vs. ) Case No. 1:96CV01285-TFH KEN SALAZAR, Secretary ofthe Interior, et al., ~ Defendants. ) ) ) November 17, 2010 Modification ofDecember 7,2009 Class Action Settlement Agreement US2000 11937946.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOurSE PEPION COBELL, et l!L ) ) Plaintiffs, ) vs. ) ) Case No. I :96CVO 1285-TFH KEN SALAZAR, Secretary ofthe Interior, et aI., ) ) Defendants. ) ) ----------------------------~) NOVEMBER 17, 2010 MODIFICATION OF CLASS ACTION SETTLEMENT AGREEMENT I. The December 7, 2009 Class Action Settlement Agreement ("Agreement" or "Settlement Agreement") in this case was entered into by and between Elouise Pepion Cobell, Penny Cleghorn, Thomas Maulson, and James Louis LaRose (collectively, the "Named Plaintiffs"), on behalfofthemselves and members ofthe Classes ofindividual Indians defined in this Agreement (collectively "Plaintiffs"), on the one hand, and Ken Salazar, Secretary ofthe Interior, Larry Echohawk, Assistant Secretary ofthe Interior -Indian Affairs, and H. Timothy Geithner, Secretary ofthe Treasury and their successors in office, all in their official capacities (collectively, "Defendants"). Plaintiffs and Defendants are collectively referenced as the "Parties." 2. The Parties have previously entered into modifications to the Agreement to modify the first sentence ofParagraph C.2.b to provide the Trust Administration Class additional time to review the terms ofthe Agreement and to extend the Legislation Enactment Date. US2000 \1937946.1 3. In the Agreement, the Parties agreed that the Settlement is contingent on enactment of legislation to authorize or confirm specific aspects ofthe Settlement as set forth in the Agreement. The Parties further agreed that ifsuch legislation were enacted with material changes, the Agreement would become null and void. 4. The Parties remain willing to implement the Settlement Agreement in accordance with the legislation attached to the Settlement Agreement as Exhibit A ("Exhibit A Legislation"), if such legislation is enacted into law. 5. The Parties have worked to support passage oflegislation necessary to give effect to the Agreement. In that effort, the Parties have separately considered certain additional terms for the Agreement and have determined that, ifsuch additional terms are included in enacted legislation implementing the Settlement, acceptance ofthese additional terms will be in the best interests of the Parties. The legislation containing those additional terms is attached hereto as Exhibit 1. If the legislative language set forth in Exhibit 1 is enacted into law, the Parties desire that the Agreement continue to be valid in conformity with modifications made by the legislative language set forth in Exhibit 1 and that definitions, terms, and other provisions ofthe Agreement shall be so modified and conform thereto. The Parties do not agree to any other material change to the Settlement. 6. Accordingly, the Parties hereby agree that ifthe legislative language set forth in Exhibit 1 is enacted into law, all definitions, terms and other provisions set forth in Exhibit 1 are agreed to by the Parties and shall be incorporated by reference in the Settlement Agreement as ifthey are restated therein expressly and in their entirety, and any definitions, terms, and provisions in the Settlement Agreement inconsistent with such definitions, terms, and other provisions in the legislative language in Exhibit 1 shall have no effect. Further, and without limiting the prior US2000 11937946.1 sentence, the Parties specifically agree that ifthe legislative language set forth in Exhibit 1 is enacted into law, the Trust Administration Adjustment Fund as set forth in Exhibit 1 shall be part ofthe Settlement and all payments made from it to individual Indians shall be payments made pursuant to the Settlement. SIGNATURES Wherefore, intending to be legally bound in accordance with the terms ofthis November 17, 2010 Modification ofthe December 7, 2009 Class Action Settlement Agreement, the Parties hereby execute this Modification: FOR Pl:JUNTIFFS Associate Attorney General US2000 JJ937946.1 EXHIBIT 1 TO NOVEMBER 17, 2010 MODIFICATION OF DECEMBER 7, 2009 CLASS ACTION SETTLEMENT AGREEMENT US2000 11937946.1 TITLE 1-INDIVIDUAL INDIAN MONEY ACCOUNT LITIGATION SETILEMENT SEC. 101. INDIVIDUAL INDIAN MONEY ACCOUNT LITIGATION SETILEMENT. (a) Definitions.-In this section: (1) AGREEMENT ON ATTORNEYS' FEES, EXPENSES, AND cosTs.-The term "Agreement on Attorneys' Fees, Expenses, and Costs" means the agreement dated December 7, 2009,'between Class Counsel (as defined in the Settlement) and the Defendants (as defined in the Settlement) relating to attorneys' fees, expenses, and costs incurred by Class Counsel in connection with the Litigation and implementation of the Settlement, as modified by the parties to the Litigation. (2) AMENDED COMPLAINT.-The term "Amended Complaint" means the Amended Complaint attached to the Settlement. (3) FINAL APPROVAL.-The term "final approval" has the meaning given the term in the Settlement. (4) LAND CONSOLIDATION PROGRAM.-The term "Land Consolidation Program" means a program conducted in accordance with the Settlement, the Indian Land Consolidation Act (25 U.S.C. 2201 et seq.), and subsection (e)(2) under which the Secretary may purchase fractional interests in trust or restricted land. (5) LITIGATloN.-The term "Litigation" means the case entitled Elouise Cobell et al. v. Ken Salazar et aI., United States District Court, District of Columbia, Civil Action No. 96-1285 (TFH). (6) PLAINTIFF.-The term "Plaintiff" means a member of any class certified in the Litigation. (7) SECRETARY.-The term "Secretary" means the Secretary of the Interior. (8) SETTLEMENT.-The term "Settlement" means the Class Action Settlement Agreement dated December 7, 2009, in the Litigation, as modified by the parties to the Litigation. (9) TRUST ADMINISTRATION ADJUSTMENT FUND.-The term "Trust Administration Adjustment Fund" means the $100,000,000 deposited in the Settlement Account (as defined in the Settlement) pursuant to subsection Q)(1) for use in making the adjustments authorized by that subsection. (10) TRUST ADMINISTRATION CLAss.-The term "Trust Administration Class" means the Trust Administration Class as defined in the Settlement. (b) Purpose.-The purpose of this section is to authorize the Settlement. (c) Authorization.­ (1) IN GENERAL.-The Settlement is authorized, ratified, and confirmed. (2) AMENDMENTs.-Any amendment to the Settlement is authorized, ratified, and confirmed, to the extent that such amendment is executed to make the Settlement consistent with this section. (d) Jurisdictional Provisions.­ (1) IN GENERAL.-Notwithstanding the limitation on the jurisdiction of the district courts of the United States in section 1346(a)(2) of title 28, United States Code, the United States District Court for the District of Columbia shall have jurisdiction of the claims asserted in the Amended Complaint for purposes of the Settlement. (2) CERTIFICATION OF TRUST ADMINISTRATION CLASS.­ (A) IN GENERAL.-Notwithstanding the requirements of the Federal Rules of Civil Procedure, the court in the Litigation may certify the Trust Administration Class. (8) TREATMENT.-On certification under subparagraph (A), the Trust Administration Class shall be treated as a class certified under rule 23(b)(3) of the Federal Rules of Civil Procedure for purposes of the Settlement. (e) Trust Land Consolidation.­ (1) TRUST LAND CONSOLIDATION FUND.­ (A) ESTABLISHMENT.-On final approval of the Settlement, there shall be established in the Treasury of the United States a fund, to be known as the "Trust Land Consolidation Fund". (8) AVAILABILITY OF AMOUNTS.-Amounts in the Trust Land Consolidation Fund shall be made available to the Secretary during the 10-year period beginning on the date of final approval of the Settlement­ (i) to conduct the Land Consolidation Program; and 2