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(c); 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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