Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 UNITED STATES DISTRICT COURT : FOR THE DISTRICT OF COLUMBIA : ELOUISE PEPION COBELL, : et al. : Plaintiffs : V. : KEN SALAZAR, Secretary of : the Interior, et al. : Defendants : : Civil Action 96-1285 Washington, D.C. Thursday, April 8, 2010 12:06 p.m. TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE JAMES ROBERTSON UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: KEITH HARPER KILPATRICK STOCKTON, L.L.P. 607 14th Street, N.W. Suite 900 Washington, D.C. 20005 (202) 585-0053 ELLIOTT H. LEVITAS KILPATRICK STOCKTON, L.L.P. 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 (404) 815-6450 DAVID C. SMITH KILPATRICK STOCKTON, L.L.P. 1001 West Fourth Street Winston-Salem, North Carolina 27101 (336) 607-7392 For the Defendants: ROBERT E. KIRSCHMAN, JR. MICHAEL QUINN J. CHRISTOPHER KOHN U.S. Department of Justice 1100 L Street, N.W. Washington, D.C. 20005 (202) 307-0010 Also Present: DAVID HAYES, DEPUTY SECRETARY OF THE INTERIOR Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 2 Court Reporter: REBECCA STONESTREET Official Court Reporter Room 6511, U.S. Courthouse 333 Constitution Avenue, N.W. Washington, D.C. 20001 (202) 354-3249 Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. 3 1 P R O C E E D I N G S 2 COURTROOM CLERK: This is civil action 96-1285, 3 Elouise Cobell, et al. versus Ken Salazar, et al. Keith Harper 4 for the plaintiffs and David Hayes for the defendants. 5 THE COURT: Well, David Hayes -- all right. Well, he's 6 a lawyer. We're delighted to have Secretary Hayes with us. 7 He's putting his lawyer's hat back on again. 8 We have had an in-chambers conference to discuss the 9 status of the settlement approval that is necessary for this 10 matter. The public is obviously interested in this, and so I 11 want to make a short statement and then ask counsel if they want 12 to comment on it. 13 After nearly 15 years of hard fought litigation, the 14 settlement of this case was reached and announced last December. 15 From where I sit, the settlement appears to be a win/win 16 proposition; a win for Indian individual money accountholders, 17 who will receive payments and who will have the assurance that 18 their IIM account balances are correct; a win for the 19 government, which will at least make a start on solving the 20 terrible problem of fractionated land holdings in Indian 21 country. 22 I said the settlement appears to be a win/win 23 proposition. I have not ruled that it is fair and reasonable to 24 members of the plaintiff class. That is a formal decision, and 25 is yet to be determined. We must go through a process, a Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 4 1 process that includes preliminary approval, publication to 2 Indian country, the opportunity to file objections, and then 3 what is known as a fairness hearing so that objectors can be 4 heard. 5 None of that can happen, however, if Congress does not 6 act to assure the parties and this Court that the proposed 7 settlement is within my jurisdiction and that funds will be 8 appropriated or approved to pay for it. The deadline 9 established by the settlement agreement for Congress to act has 10 been twice extended, from the end of last year to the middle of 11 February, and again to the middle of this month, April 16th. 12 The need for Congress to act is real. Until or unless 13 Congress acts, the lawyers who have devoted themselves to this 14 case for 15 years on both sides are on hold, and, more 15 importantly, all of Indian country is on hold. And I don't want 16 to be too melodramatic about this, but justice is on hold. 17 With my approval, plaintiffs' counsel have been in 18 Indian country to assure the members of the plaintiff class that 19 settlement is still alive. Last week the government filed a 20 consented motion that would permit its representatives to do the 21 same, and that motion is hereby granted. 22 But this cannot continue. Again, from where I sit, 23 this does not look like a partisan matter. It does not seem to 24 me that this is one of those issues that will cause gridlock. 25 It just needs an appropriate sense of priorities. It needs to Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 5 1 get done. 2 I have consulted with the parties before coming here 3 today, and I am hereby approving their agreement to extend the 4 deadline again, but only for another six weeks, until the start 5 of Congress' Memorial Day recess. If Congress has not acted by 6 the middle of May, I will convene a public hearing on this 7 matter. I will invite - the operative word is "invite." I will 8 invite the Secretary of the Interior, the Director of Management 9 and Budget, and again, by invitation, of course, appropriate 10 members of Congress, to explain to me, to Indian country, and to 11 the American people why the approval required by this settlement 12 agreement has not been given. 13 Now, that's all I have to say. Counsel are here from 14 both sides. Mr. Kirschman? 15 MR. KIRSCHMAN: Your Honor, the Deputy Secretary of the 16 Department of Interior, David Hayes, will speak for the 17 government, with your permission. 18 THE COURT: Mr. Hayes certainly has my permission. 19 MR. HAYES: Thank you very much, Your Honor. I want to 20 simply reiterate the Administration's commitment and interest in 21 moving forward with this settlement. 22 As you know, the President, the Secretary of the 23 Interior, the Attorney General have all publicly stated their 24 support for this settlement. We believe it is a historic 25 settlement, an opportunity to turn the page on a period of Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 6 1 history where the trustee has not performed as the trustee needs 2 to. 3 We are anxious to proceed to full notice of the class 4 so that all of the hundreds of thousands of individual Indians 5 who have interest in this matter will have an opportunity to 6 learn fully about the settlement, to have an opportunity to come 7 forward to your court and have their answers -- their questions 8 answered, have any objections heard, so that we can proceed with 9 the judicial resolution of this matter. 10 I will also say that obviously, Your Honor, we will 11 respect your request today, that we understand your interest in 12 a timetable certain on this matter. We share a common interest 13 in bringing this to resolution. 14 I will say for the record that the Administration has 15 been working very closely with the leadership in Congress. 16 Secretary Salazar has been personally engaged, and we will 17 continue to do so. And now, with your instructions today, we 18 will increase, even increase our attention to this matter, if 19 that is possible. 20 And with regard to your call for a potential appearance 21 by the Secretary of the Interior in mid-May if we do not have 22 Congressional approval by then, I'm certain that the Secretary 23 will be happy to participate in such a hearing, and will work 24 with you and with the Congress towards resolution of this 25 important matter. Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 7 1 THE COURT: Thank you, Mr. Hayes, Mr. Secretary. 2 Mr. Harper? 3 MR. HARPER: Good afternoon, Your Honor. First let me 4 thank the Court for its continuing attention to this case and 5 this matter. It is, of course, of utmost importance to our 6 beneficiary class and the entirety of Indian country. We, of 7 course, agree, Your Honor, with your statement that this is a 8 win; it is a win for our trust beneficiaries, it is a win for 9 Indian country, and it turns the page on a problematic past. 10 We are disappointed that we have not yet had the 11 legislation necessary to implement this important settlement. 12 We continue to be in a position to work with the Administration 13 and with Congress to try to get it done as soon as possible. We 14 appreciate your role in trying to push this forward. 15 You did mention that we have been out in 16 Indian country. And on that note I just wanted to say that that 17 has confirmed our understanding with our beneficiary class that 18 this is something they want, this is something that the vast 19 majority of individuals that we've met with have supported. 20 Indeed, we've done some 40 meetings, and in the vast majority of 21 those, there is not a single dissent. Everybody has been in 22 support. There are a few folks here and there that have made 23 statements in opposition, but then, of course, there are 24 procedures in place to deal with those individuals to the extent 25 that they are not satisfied with the resolution. Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 8 1 So we want to make clear that our trips out to 2 Indian country have not been in vain, that they have 3 demonstrated conclusively that there is broad support. We are 4 again disappointed that the legislation has not been enacted 5 yet, but we will too join with the Administration in redoubling 6 our efforts to try to make sure that it gets done as soon as 7 possible. 8 Thank you, Your Honor. 9 THE COURT: Thank you, Mr. Harper. If there's nothing 10 further, I think we've said what we need to say and done what we 11 need to do today. 12 Again, the defense motion for leave to contact the -- 13 make appropriate contact with the plaintiff class is granted, 14 and if there's nothing further, we're adjourned until about the 15 middle of May. Hopefully we don't -- hopefully we'll reconvene 16 for a different purpose at that time. 17 18 19 20 21 22 23 24 25 Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 9 1 CERTIFICATE OF OFFICIAL COURT REPORTER 2 I, Rebecca Stonestreet, certify that the foregoing is a 3 correct transcript from the record of proceedings in the 4 above-entitled matter. 5 _______________________________ _________ 6 SIGNATURE OF COURT REPORTER DATE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net