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IN THE UNITED STATES DISTRICT COURT 
FOR THE DlSTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
P1ainti ffs, 
V. 
GALE A. NORTON, Secretary of the 
Interior, et al., 
Defendants. 
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Case No. 1:96CV01285 
(Judge Lamberth) 
INTERIOR DEFENDANTS’ REPLY BRIEF IN FURTHER 
SUPPORT OF THElR MOTION FOR RECONSIDERATION OF 
THE COURT’S MARCH 11,2003 MEMOKANDUM AND ORDER 
INSOFAR AS IT GRANTED PLAINTIFFS’ MOTION FOR SANCTIONS 
Interior Defendants submit this reply memorandum in further support of their motion for 
reconsideration of the Court’s March 11, 2003 Memorandum and Order (“Memorandum and 
Order”) insofar as it granted Plaintiffs’motion for sanctions. In their opposition brief, Plaintiffs 
present arguments that are premised upon gross misstatements of both fact and law and, 
accordingly, should be rejected. The motion should be granted. 
DISCUSSION 
Interior Defendants seek reconsideration of the Court’s Memorandum and Order and 
vacatur of that portion imposing sanctions on Defendants because the Court lacked an 
appropriate basis to take such action under Federal Rule of Civil Procedure 56(g). As discussed 
in Interior Defendants’ moving papers, it was error for the Court to conclude that the Declaration 
of Frank Sapienza, subscribed September 18,2000 under penalty of perjury and supported by 
substantial documentary evidence (“Sapienza Declaration”), was false based upon statements 
contained in an unsworn letter from an official in the General Accounting Office (“GAO”) who This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
acknowledged that, “[gliven the number of years that have passed, we have no direct knowledge 
about the nature of any accounting regarding individual Indian accounts previously undertaken 
by GAO, or the standards or procedures used.” Letter from Gene L. Dodaro to John Berry of 
August 27, 1999 (“Dodaro Letter”), attached as Exhibit 1 to Interior Defendants’ Motion And 
Supporting Memorandum For Reconsideration Of The Court’s March 11,2003 Memorandum 
And Order Insofar As It Granted Plaintiffs’ Motion For Sanctions (“Interior Defendants’ Moving 
Brief ’). 
The infirmity of the foundation underlying the Court’s opinion was clearly set out in 
Interior Defendants’ motion. First, the opinion rests on inadmissible hearsay. Interior 
Defendants’ Moving Brief at 7. Second, it deems dispositive statements from an individual who 
concedes he and his office lack foundational knowledge concerning the Indian fund activities that 
are the subject of the declaration that the Court has found to be false. d.at 7-8. Third, even if 
the Dodaro Letter did not suffer from evidentiary defects that render it inadmissible, the Court’s 
finding of bad faith still could not stand because, to the extent the letter can be considered 
inconsistent with the Sapienza Declaration, the result would be a contested factual issue that 
would warrant a hearing and opportunity for the parties to be heard before a proper credibility 
assessment could be made by the Court. a.at 9. And fourth, in any event, the lack of clarity that 
the Court perceives in Mr. Sapienza’s Declaration simply does not rise to the level at which Rule 
56(g) sanctions should be imposed. Id.at 9-10; see Fort Hill Builders. Inc. v. National GranPe 
Mut. Ins. Co., 866 F.2d 1 1, 16 (1 st Cir. 1989) (courts have imposed sanctions under Rule 56(g) 
only in rare circumstances in response to egregious conduct) (citations omitted); Jaisan, Inc. v. 
Sullivan, 178 F.R.D. 412,415-16 (S.D.N.Y. 1998) (Rule 56(g) sanctions appropriate only where 
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affidavit contains "perjurious or blatantly false allegations or omitted facts concerning issues 
central to the resolution of the case.") (citation omittcd). 
Plaintiffs purport to answer only the first two points raised by Interior Defendants. They 
respond to the contention that Mr. Dodaro's letter is inadmissible hearsay by arguing that he is an 
"Executive Branch employee" and that, accordingly, "the Dodaro Letter is not hearsay, but rather 
is a party admission" under Federal Rule of Evidence 80l(d)(2). Opposition To Defendants' 
Latest Motion For Reconsideration With Respect To This Court's March 11,2003 Memorandum 
And Order And Request For Enlargement Of Time Within Which To Submit Filing Detailing 
Amount Of Reasonable Expenses And Attorneys' Fees Incurred ("Plaintiffs' Opposition Brief") at 
1-2, n.2. This argument is wrong from both a legal and factual standpoint. First, Mr. Dodaro is 
-not an employee of the Executive branch. The General Accounting Office, by which Mr. Dodaro 
is employed, is part of the Legislative Branch of government. This fact would have quickly 
become apparent to Plaintiffs, had they conducted a reasonable inquiry before making such an 
erroneous factual assertion to the Court. The very first sentence of GAO's Internet site informs 
as follows: "The General Accounting Office is the audit, evaluation and investigative arm of 
Congress." See GAO Homepage, www.gao.com (emphasis added). Plaintiffs' reliance on a false 
factual predicate reflects a failure to conduct even the most cursory inquiry to determine whether 
their argument had any factual support. - . 
Plaintiffs' argument also fails on the law. Mr. Dodaro, and more generally GAO, are not 
even parties to this litigation. The only defendants are the Secretary of the Interior, the Assistant 
Secretary - Indian Affairs, and the Secretary of the Treasury. The proposition that a statement 
from a nonparty -- a GAO official in this case -- could be deemed a party-opponent admission by 
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those defendants has no legal basis and, not surprisingly, Plaintiffs proffer no legal citation to 
support it. Fed. R. Evid. 801(d)(2).' This is particularly so when the statements at issue 
come from an official in a branch of government that is wholly independent and outside the 
control of the branch to which the party defendants belong. 
Plaintiffs compound their legal error by relying upon yet another unsworn letter from a 
GAO official in an attempt to advance their argument. See Plaintiffs' Opposition Brief at 3-5 
(quoting Letter from Anthony H. Gamboa to Bert T. Edwards (April 19,2002) ("Gamboa 
Letter").' But all the evidentiary defects that encumber Mr. Dodaro's letter render Mr. Gamboa's 
statements inadmissible as well. &Interior Defendants' Moving Brief at 7-1 1. As such, neither 
letter provides a proper foundation for the imposition of sanctions under Federal Rule 56(g). 
Even if the Gamboa Letter were competent evidence, it would not "underscore[] the 
falsity of the Sapienza Declaration,'' as Plaintiffs contend. See Plaintiffs' Opposition Brief at 3. 
Plaintiffs quote various statements by Mr. Gamboa setting forth his opinion that GAO settled 
disbursing agents' accounts, but did not settle IIM accounts. a.at 4-5. But Mr. Sapienza also 
concluded that GAO settled disbursing agents' accounts. Sapienza Declaration at 1150-51 
("'[Tlhe best remembered feature of the first GAO was its receipt and review of the disbursing 
1 Rule SOl(d)(2) provides, in pertinent part, that "[a] statement is not hearsay i f . .. 
[tlhe statement is offered against a party and is (A) the party's own statement, in either an 
individual or a representative capacity, or (B) a statement of which the party has manifested an 
adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a 
statement concerning the subject, or (D) a statement by the party's agent or servant concerning a 
matter within the scope of the agency or employment, made during the existence of the 
relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance 
of the conspiracy." 
2 A copy of the letter was transmitted to the Court via Interior Defendants' Notice of 
Filing of April 19,2002 Letter from General Accounting Office General Counsel. 
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officers' accounts with their accompanying vouchers and supporting documents . . . .' When the 
auditors could find no flaw in the account, they would clear, certify, and thus settle it."). The 
process of reviewing and settling disbursing agents' accounts, Mr. Sapienza explained, also 
involved an examination by GAO of IIM transactions that were incIuded in the disbursing agent's 
account package. See id. at 7 34 ("Prior to settlement of accounts by GAO, the Indian agent was 
required to prepare an 'account current' that showed: 'the opening balance, receipts, 
disbursements, and closing balance of each class of individual Indian money and special deposits 
. . . .I1'). Mr. Gamboa confirmed Mr. Sapienza's testimony in this regard. See Gamboa Letter at 6 
("Undoubtedly, given the nature of their work, Indian Service disbursing officers would have 
engaged in transactions with individual Indians and IlM accounts. Because GAO examined 
disbursing officers' disbursement and receipt vouchers, GAO's settlement of disbursing officers' 
accounts likely would have confirmed the accuracy of, or taken exception to, the disbursing 
officers' withdrawals from and credits to the IIM account so long as those transactions were 
vouchered transactions."). Thus, even if Mr. Gamboa's statements could be accorded evidentiary 
weight, there is no merit to Plaintiffs' assertion that they would render false the testimony of Mr. 
Sapienza. 
Plaintiffs also claim that it is "telling that Interior Defendants' expert, Edward Angel . . . 
has opined that the settlement .process did not constitute an historical accounting." Plaintiffs' 
Opposition Brief at 5. It is difficult to ascertain just what Plaintiffs contend Mr. Angel's 
testimony is "telling" of, but in any event, their characterization of the deposition testimony they 
rely upon is inaccurate. Mr. Angel did not testify that "the settlement of accounts process did not 
constitute an historical accounting." Rather, he testified that he did not know, and that in his 
view, an audit and an accounting are "two different things." Transcript of Deposition of Edward 
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Angel at 53. Such testimony does not contradict the Declaration of Mr. Sapienza, who made no 
statement at all concerning whether GAO's review of ITM transactions through its settlement of 
disbursing agents' accounts constituted an "historical accounting." 
Plaintiffs' arguments are based upon plain misstatements of fact and fundamental errors 
of law. They do not address at all the relevant standards under Federal Rule 56(g), upon which 
the Court's ruling is based. Accordingly, they should be flatly rejected, and Interior Defendants' 
motion granted. 
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CONCLUSION 
For the reasons set forth above and in their Moving Brief, Interior Defendants respcctfully 
request that the Court enter an Order granting their motion for reconsideration of the 
Memorandum and Order, and vacating the imposition of sanctions against defendant^.^ 
Dated: April 18,2003 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
S q P. SPOONER 
Deputy Director 
DC Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
CYNTHIA L. ALEXANDER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
3 Interior Defendants do not oppose PIaintiffs' request for a 30-day extension of 
time to submit the filing required by the Memorandum and Order. 
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CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on April 18,2003 I served the foregoing Interior 
Defendants' Reply Brief in Further Support of Their Motion for Reconsiderution of the Court's 
March 11, 2003 Memorandum and Order Insofar as it Granted Plaintgs 'Motionf o r Sanctions 
by facsimile in accordance with their written request of October 31, 2001. 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Court's Order of April 17,2003 
by facsimile and U.S. Mail upon: 
Earl Old Person (Pro Se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406)338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq. 
1100 Peachtree Street 
Suite 2800 
Atlanta, GA 30309-4530 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
(202) 3 18-2372 
By facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1 717 Pennsylvania Avenue, N.W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
By Hand upon: 
Joseph S. Kieffer, III 
Special Master Monitor 
420 7'h Street, N.W. 
Apartment 705 
Washington, D.C. 20004 
(202) 478-1958