Case 1:96-cv-01285-JR Document 3526 Filed 05/02/2008 Page 1 of 3 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

ELOUISE PEPION COBELL, et al.,  : :  
Plaintiffs,  : :  
v.  : :  Civil Action No. 96-1285 (JR)  
DIRK KEMPTHORNE, Secretary ofthe Interior, et al.,  : : :  
Defendants.  : 

PRETRIAL ORDER 

Plaintiffs seek equitable relief in the nature of 
restitution for funds that were received in the IIM trust, do not 
appear to have been disbursed to beneficiaries, and are not 
explained by the government’s accounting efforts, plus an amount 
that represents the benefit reaped by the government from the use 
of those funds. See [3515]. The proceedings set to begin on 
June 9, 2008, will be for the purpose of determining the dollar 
amount of that proposed remedy. My findings of January 30, 2008, 
[3505], will serve as a starting point for final determination, 
but my expectation is that the parties will adduce further 
evidence, following the guidelines set forth below: 

1. The plaintiffs will go first. They will presumably 
rely heavily on documents that were identified and discussed in 
the January 30 findings, but the $3 billion and $3.6 billion 
figures suggested by those findings are subject to amendment by 
evidence and appropriate calculations that deal with or 
incorporate elements not addressed in the January 30 findings. 

Case 1:96-cv-01285-JR Document 3526 Filed 05/02/2008 Page 2 of 3 
This may include discussion of such issues as Osage head right 
funds, judgment and per capita accounts, and tribal IIM monies. 

It will be plaintiffs’ burden to establish both the 
fact and the amount of the government’s “benefit” from its 
alleged use of the funds that are not explained by the 
government’s data. See, e.g., Joel Eichengrun, Remedying the 
Remedy of Accounting, 60 Ind. L.J. 463, 469-71 (1985), citing 
Pallma v. Fox, 182 F.2d 895 (2nd Cir. 1950) (L. Hand, C.J.). The 
legal issue whether such a “benefit,” if proven, is the 
functional equivalent of pre-judgment interest, which would be 
foreclosed by Library of Congress v. Shaw, 478 U.S. 310 (1986), 
remains for decision. 

2. Assuming that the plaintiffs succeed in 
establishing their prima facie case, the government will have the 
burden of refuting it, or parts of it. Testimony that amends, 
qualifies, or further explains AR-171 or DX-365, or both, will be 
considered. Evidence bearing on the percentage of monies 
collected by the IIM trust system that have been disbursed to 
beneficiaries – and the percentage that ought to have been 
disbursed – will be considered. Evidence supporting or opposing 
plaintiffs’ proposal to include Osage head right funds, judgment 
and per capita accounts, and tribal IIM monies in a 
restitutionary award will be considered. 

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Case 1:96-cv-01285-JR Document 3526 Filed 05/02/2008 Page 3 of 3 
3. Evidence will not be material to the issues 

addressed on June 9 if it addresses, or principally concerns, 
land or land transactions or the January 30 finding of 
impossibility. Further legal argument as to class certification 
and jurisdictional issues will not be germane. 

4. Plaintiffs are directed to file a list of their 
witnesses and the expected subjects of their testimony by May 16, 
2008. The government is directed to file a list of their 
witnesses and the expected subjects of their testimony by May 30, 
2008. If either party requests it, a final pretrial conference 
will be held on June 2, 2008, at 2:00 p.m.

 JAMES ROBERTSON 
United States District Judge 

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