1:07-cv-00237-BLW

THOMAS E. MOSS, IDAHO BAR NO. 1058
UNITED STATES ATTORNEY
DEBORAH A. FERGUSON, IDAHO BAR NO. 5333
ASSISTANT UNITED STATES ATTORNEY
DISTRICT OF IDAHO
WASHINGTON GROUP PLAZA IV
800 PARK BOULEVARD, SUITE 600
BOISE, IDAHO 83712
TELEPHONE: (208) 334‑1211
FACSIMILE: (208) 334‑1414
Attor­ney for Defendant

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

THE DELAWARES OF IDAHO, INC.,            )
                                                        )                 Case No. CV-07 – 237-S-BLW
Plain­tiff,                                                )
                                                             )                 JUDGMENT AND ORDER
)
                                                              )
vs.                                                         )
                                                             )
DIRK KEMPTHORNE, SECRETARY OF         )
INTERIOR, UNITED STATES OF AMERICA, )
                                                              )
Defen­dant.                                               )
                                                             )
_______________________________________

Based on the agree­ment of the par­ties, this Court enters the fol­low­ing Judg­ment and Order:

JURISDICTION

This Court has both sub­ject mat­ter and pro­ce­dural juris­dic­tion in this case. Plain­tiff rep­re­sents a group of Native Amer­i­cans known as “The Delawares of Idaho.” Defen­dant Dirk Kempthorne is the Sec­re­tary of Inte­rior (“the Sec­re­tary”) for the United States Depart­ment of Inte­rior (“Depart­ment”). The Depart­ment has juris­dic­tion over the Bureau of Indian Affairs (“BIA”). Pur­suant to Pub­lic Law 96 – 318, 94 Stat 968 (August 1, 1980) (“1980 Act”), the Sec­re­tary has the respon­si­bil­ity to dis­trib­ute judg­ment funds relat­ing to Com­mis­sion, Docket Nos. 27-A and 241, 289, and 27-B and 338, to the Delaware Tribe, the Delaware Nation, the Kansas Delawares and the Delawares of Idaho. Juris­dic­tion of this Court attaches pur­suant to the 1980 Act and 28 U.S.C. § 1331.

FACTS

  1. The Plain­tiff is an Idaho not-for-profit cor­po­ra­tion whose mem­bers are a band of Native Amer­i­cans located largely in Idaho and who are descen­dants of the orig­i­nal Delaware Tribe of Indi­ans. The band is known as the “Delawares of Idaho.” The Delawares of Idaho were prop­erly included in the 1980 Act and were and are enti­tled to dis­tri­b­u­tion as pro­vided in the 1980 Act.
  2. An ini­tial dis­tri­b­u­tion was made in 1982 by the Sec­re­tary to those Delawares of Idaho who qual­i­fied under the Act. Notwith­stand­ing, a sig­nif­i­cant por­tion of the total funds to which they were enti­tled was with­held pend­ing the res­o­lu­tion of a num­ber of appeals from unsuc­cess­ful claimants. The last of those 54 unre­solved appeals were denied by the BIA sev­eral years ago, thus remov­ing any imped­i­ment to the dis­tri­b­u­tion of the remain­ing funds to which the Delawares of Idaho were enti­tled under the Act.
  3. The Delawares of Idaho are enti­tled to spe­cific cer­tain funds which the Depart­ment has seg­re­gated into sev­eral accounts under its con­trol. Those accounts and the amounts deposited in each account as of April 30, 2008 were:
    • (a) Delawares of Idaho Accounts:
      JA — 9483 – 37-9 $287,621.21
      JA — 9483 – 10-6 $ 17,103.29
      Total $304,724.50
    • (b) Attor­ney Fee Accounts:
      JA — 9483 – 01-5 $ 1,173.50
      JA — 9483 – 69-2 $ 46,113.86
      Total $ 47,287.36

The total amount, there­fore, to which the Delawares of Idaho are enti­tled to as of April 30, 2008, is $304,274.50, together with accru­ing interest.

The total amount to which attor­ney W. Anthony Park is enti­tled to as of April 30, 2008, is $47,287.36, together with accru­ing interest.

ORDER

Based on the fore­go­ing, and the Court being fully advised in the premises,

IT IS HEREBY ORDERED:

  1. On or before July 11, 2008, the Sec­re­tary shall cause the Depart­ment to trans­fer those funds from the accounts iden­ti­fied in para­graph 3(a) above to an interest-bearing, Court-supervised account as pro­vided by Local Rule 67.1. Such funds shall include inter­est cal­cu­lated to the date of trans­fer. Pay­ment of said funds to the Court shall sat­isfy all past and present oblig­a­tions and/or lia­bil­ity of the Sec­re­tary, the Depart­ment and the BIA relat­ing to the­m­an­age­ment, dis­tri­b­u­tion and dis­burse­ment of any and all with­held funds under the 1980 Act in which the Delawares of Idaho have had an interest.
  2. The Clerk of Court shall invest the Delaware of Idaho funds into an auto­mat­i­cally enew­able accounts in the name of the Clerk of Court, U.S. Dis­trict Court, at U.S. Bank in Boise, daho; said funds to remain invested pend­ing fur­ther order of the Court.
  3. The Clerk of Court must deduct a fee from the income earned on the invest­ment equal to ten per­cent (10%) of the income earned while the funds are held in the Court’s reg­istry fund, regard­less of the nature of the case under­ly­ing the invest­ment and with­out fur­ther order of the Court. The inter­est payable to the U.S. Courts shall be paid prior to any other dis­tri­b­u­tion of the account. Invest­ments hav­ing a matu­rity date will be assessed the fee at the time the invest­ment instru­ment matures.
  4. That coun­sel pre­sent­ing this order per­son­ally serve a copy thereof on the Clerk of Court or his or her finan­cial deputy.
  5. On or before July 11, 2008, the Sec­re­tary shall cause the Depart­ment to issue its check in the amount of the funds iden­ti­fied in para­graph 3(b) above, with accrued inter­est cal­cu­lated to the date of issuance, payable to W. Anthony Park, the attor­ney for the Delawares of Idaho. Pay­ment of these funds to attor­ney Park shall sat­isfy all past and present attor­ney fee lia­bil­ity of the United States, Sec­re­tary of the Inte­rior, the Depart­ment of the Inte­rior and the BIA relat­ing to any and all with­held funds under the 1980 Act and to the pros­e­cu­tion of this man­damus action by Park.
  6. Plain­tiff shall com­pile an accu­rate roll of its mem­bers who are eli­gi­ble for dis­tri­b­u­tion of the funds from the Court-controlled account.
  7. Plain­tiff shall also iden­tify any deceased mem­bers and include in the roll the names of the heirs at law of such deceased mem­bers. The heirs at law shall be enti­tled to share equally in the deceased member’s share.
  8. The roll sub­mit­ted pur­suant to this Order shall be cer­ti­fied by Plain­tiff to be true and accu­rate accord­ing to the best infor­ma­tion avail­able to it but shall not require a cer­ti­fi­ca­tion of absolute authenticity.
  9. The court antic­i­pates that Plain­tiff may encounter costs as it assem­bles its roll,
    includ­ing the costs of com­pen­sa­tion for the per­son or per­sons assem­bling the rolls. Such costs
    shall be sub­mit­ted by Plain­tiff to the Court for com­pen­sa­tion and these costs will be paid by the
    United States. It is also ordered that Plain­tiff will be allowed to sub­mit interim peti­tions for
    costs as may from time to time be necessary.
  10. The Defen­dant shall pro­duce to coun­sel for the Plain­tiff all avail­able records requested by Plain­tiff rea­son­ably nec­es­sary to its attempt to develop and cer­tify a list of its mem­bers enti­tled to a dis­tri­b­u­tion under the 1980 Act.
  11. Such pro­duc­tion of records is hereby autho­rized and ordered notwith­stand­ing an asser­tion by Defen­dant that such records might oth­er­wise be sub­ject to pro­tec­tions under any fed­eral statute or reg­u­la­tion which pro­tects fed­eral records from pub­lic dis­clo­sure, includ­ing but not lim­ited to the fol­low­ing acts (includ­ing any reg­u­la­tions pro­mul­gated thereto): The Pri­vacy Act, 5 U.S.C. § 552a; the Trade Secrets Act, 19 U.S.C. § 1905; cer­tain pro­vi­sions of the National His­toric Preser­va­tion Act, 16 U.S.C. § 470s-3; the Archae­o­log­i­cal Resources Pro­tec­tion Act, 16 U.S.C. § 470hh(a); the Indian Min­eral Devel­op­ment Act, 25 U.S.C. § 2103©; the Min­eral Leas­ing Act, 30 U.S.C. § 208 – 1; the Sur­face Min­ing Con­trol and Recla­ma­tion Act, 30 U.S.C. § 1201; and the Defense Pro­duc­tion Act, 50 U.S.C. App. § 2155(e) (col­lec­tively “Applic­a­ble Con­fi­den­tial­ity Laws”). The Plain­tiff is directed to destroy all records pro­duced pur­suant to para­graph 10 after the dis­tri­b­u­tions have been made.
  12. Once the United States has deposited the funds into the Court-supervised account sub­se­quent orders will direct the man­ner of dis­tri­b­u­tion and any addi­tional amounts to be awarded for asso­ci­ated costs.

DATED: June 26, 2008
(sig­na­ture)
B. LYNN WINMILL
Chief Judge
United States Dis­trict Court

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