IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE AK-CHIN INDIAN ) COMMUNITY, ) ) Plaintiff, ) ) v. ) Case No. 06-09321 (ECH) ) Judge Emily C. Hewitt THE UNITED STATES, ) Electronically filed on October 31, 2008 ) Defendant. ) ___________________________________ )

PLAINTIFF’S MOTION TO COMPEL AND MEMORANDUM IN SUPPORT

INTRODUCTION

In response to discovery requests served by Plaintiff, the Ak-Chin Indian Community

(“Ak-Chin”), the Defendant, Ak-Chin’s trustee, refuses to provide responsive documents and

information which it has stored at the American Indian Records Repository (“AIRR”) in Lenexa,

Kansas. Defendant takes the position that instead of Defendant searching for Ak-Chin’s trust

records in response to the discovery requests, Ak-Chin should be required to travel to the AIRR

to search for and review thousands of boxes of trust records that may or may not contain

documents responsive to Ak-Chin’s requests.

If Defendant is permitted to require Ak-Chin to go to the AIRR, Ak-Chin will effectively

be denied access to its own trust records, due to the extraordinary expense and time involved.

Ak-Chin’s records have been shipped from local agency offices to the AIRR to be stored along

with approximately 175,000 other boxes of records unrelated to Ak-Chin or its requests; and

Defendant’s system of indexing the boxes at AIRR makes it nearly impossible for Ak-Chin to

find those records that may actually relate to Ak-Chin and which are responsive to its discovery.

In light of this record and these facts, Defendant’s position that Ak-Chin must sift through a

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veritable mountain of boxes containing irrelevant material, in the hopes of finding its own trust

records, is in direct contravention of fundamental precepts of trust law. Defendant’s argument

independently fails under Court of Federal Claims Rules 34(b) and 33(d), upon which Defendant

relies. For these reasons, Ak-Chin’s Motion to Compel Defendant to search records at the AIRR,

to produce documents responsive to Ak-Chin’s document requests and to answer Ak-Chin’s

interrogatories in full, should be granted.

BACKGROUND

A. The Ak-Chin Indian Community brings an action for trust mismanagement. Ak-Chin is a federally recognized Indian tribe located approximately 35 miles south of

Phoenix, Arizona. (Complaint, at ¶ 2.) The tribal lands of Ak-Chin were established by

Executive Order of May 8, 1912, by President W. Howard Taft, which allocated 47,600 acres to

the Ak-Chin Reservation. (Complaint, at ¶ 9.) Within a year, President Taft reduced the size of

Ak-Chin’s Reservation by over one-half to 21,840 acres. Id. Ak-Chin is a small tribe, with

approximately 767 enrolled members and its Reservation is primarily agricultural, despite its

desert location. (Declaration of Delia Carlyle, at ¶ 3, attached hereto as Exhibit A; Complaint, at

¶ 11.) The Defendant United States acts as trustee for certain tribal lands, monies and other

assets belonging to Ak-Chin. (Complaint, at ¶ 3.)

On December 29, 2006, Ak-Chin filed a Complaint against the United States for money

damages in this Court to redress specific breaches of statutory, regulatory, and fiduciary duties in

the management of Ak-Chin’s trust funds and non-monetary trust assets. These duties, as the

Supreme Court has recognized, are money-mandating and their breach may be remedied by an

award of money damages in the Court of Federal Claims. See United States v. Mitchell, 463 U.S.

206, 228 (1983)(“Mitchell II”).

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The Complaint alleges three distinct breach-of-trust claims for mismanagement of

different tribal funds and assets. Specifically, Count I alleges mismanagement of Ak-Chin’s land

and natural resources for failure to obtain “fair and reasonable compensation” for the lease of

these resources. (Complaint, at ¶¶ 24-29.) Count II alleges mismanagement and failure to

prudently invest the principal and earnings of other funds held in trust for Ak-Chin, including

proceeds from leases, permits, easements, and rights-of-way; and general tribal funds. (Id. at ¶¶

31-34.) Count III alleges mismanagement and failure to prudently invest the principal and

earnings of judgment funds held in trust for Ak-Chin. (Id. at ¶¶ 35-39.)

B. Ak-Chin serves discovery requests and Defendant objects to producing documents stored at the AIRR. On May 30 2008, Ak-Chin served two sets of production requests for document

production (one set designated “Land and Natural Resources;” the other, “Investment

Responsibilities) and its first interrogatories on Defendant. (See Ak-Chin’s Discovery Requests,

attached hereto collectively as Exhibit B.) Pursuant to consented-to extensions of time sought by

Defendant, the government served its responses on August 29, 2008. (See Defendants’

Responses to Ak-Chin’s Discovery Requests, attached hereto collectively as Exhibit C.)

Rather than producing the requested documents, nearly all of Defendant’s responses to

Ak-Chin’s document requests state that “potentially responsive, non-privileged documents” will

be made available for inspection at the AIRR storage facility in Lenexa, Kansas. (See, e.g.,

Defendant’s responses to first requests for production nos. 1-30 and Defendant’s responses to

second requests for production nos. 1-5, 7, 12-14, 17-22, 26-28, 30-43 and 45-52.) Likewise, in

response to every interrogatory, rather than providing the information requested, Defendant

responds as follows: “As to records maintained at AIRR, Interior specifies that potentially

relevant boxes of records from which this portion of the answer may be derived or ascertained

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are set forth in the BISS query results that will be produced to plaintiff.” (See Defendant’s

Responses to Plaintiff’s Interrogatories 1-8.)

Ak-Chin has since raised concerns about the sufficiency of the discovery responses. In a

seven-page letter dated October 2, 2008, Ak-Chin’s counsel detailed concerns with respect to a

number of the August 29 responses to Ak-Chin’s production requests and interrogatories, and

specifically addressed Defendant’s insistence that Ak-Chin be required to search for its trust

records at the AIRR storage facility in Lenexa, Kansas. (See October 2, 2008 letter, attached

hereto as Exhibit D.) In response, Defendant maintained its position that Ak-Chin is responsible

for searching for its trust records at the AIRR. (See October 14, 2008 letter, attached hereto as

Exhibit E.)1

On October 16, 2008, pursuant to this Court’s order, the parties filed a Joint Status Report

with the Court setting forth their respective positions as to how the case should proceed and

updating the Court on the status of discovery. [Docket No. 57.] The following day, the Court

held a status conference during which the parties addressed case management issues. Ak-Chin

also identified two areas of dispute between the parties regarding Ak-Chin’s discovery requests,

including Defendant’s insistence that Ak-Chin be required to travel to the AIRR storage facility

in Lenexa, Kansas to search for its trust records responsive to its discovery requests. The Court

initially directed Defendant to “do an examination of those boxes that have those documents in it

for the discovery that we’re looking at now.” (Tr. of Oct. 17, 2008 Status Conference, at p. 40-

41.) Defendant subsequently requested briefing on the issue, however, and the Court agreed to

1 Pursuant to Rule 37(a)(2)(B) of the Rules of the Court of Federal Claims, the undersigned counsel for Ak-Chin certifies that he has conferred in good faith with counsel for Defendant, but has been unable to reach an accord as to the action requested in Ak-Chin’s Motion to Compel. Since the parties are at an impasse with respect to the issues presented in that Motion, AK-Chin has involved the Court at this juncture.

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entertain a Motion to Compel addressing Defendant’s objection to producing records stored at

the AIRR. On October 17, 2008, the Court issued an Order directing that on or before October

31, 2008, Ak-Chin file its motion regarding discovery of the documents stored at the AIRR.

[Docket No. 59.]

C. Defendant stores all inactive Indian records at the AIRR. According to declarations recently submitted by Defendant in Ak-Chin’s action in the

United States District Court for the District of Columbia, on September 12, 2003, Interior and the

National Archives and Records Administration signed a Memorandum of Understanding “to

consolidate all inactive Indian Records in the possession of the [Bureau of Indian Affairs] and

the [Office of the Special Trustee for American Indians] and related Interior fiduciary trust

records” into a single location at the AIRR in Lenexa, Kansas. (Declaration of Ethel Abeita

(“Abeita Declaration”), at ¶ 3, attached hereto as Exhibit F.) AIRR was dedicated in 2004 and,

according to Defendant, currently houses approximately 175,000 boxes of Indian records.

(Abeita Declaration, at ¶ 4; BISS Box Selection Procedures, (H57HTA055409),

H57HTA055409-14, attached hereto as Exhibit G.)

The majority of non-litigation research at AIRR is conducted by staff located at Lenexa

and the procedures for this research are contained in a manual entitled “Indian Affairs Records

Management Manual.” (Abeita Declaration, at ¶ 6.) The AIRR imposes restrictions on all other

researchers. For example, all other researchers at the AIRR must first attend a training session

and conduct their research in monitored rooms only. (Abeita Declaration, at ¶¶ 7 and 8.) They

are permitted to work on only one box at a time; and they are prohibited from using voice

recorders to document record review. (Abeita Declaration, at ¶ 8, Declaration of Jim Parris

(“Parris Declaration”), at ¶ 14, attached hereto as Exhibit H.) Since late fiscal year 2006, when

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Defendant began keeping track of how many boxes are searched at the AIRR, approximately

3,500 boxes of records have been provided. (Abeita Declaration, at ¶ 8.)

D. Documents are re-arranged and shipped from local agency offices to Lenexa, Kansas. Prior to being shipped to the AIRR, Ak-Chin’s records were maintained at the Pima

Agency Office in Sacaton, Arizona, the Western Regional Office (“WRO”) in Phoenix, Arizona

and the Land Title and Records Office (“LTRO”) in Albuquerque, New Mexico. According to

declarations submitted by Defendant in the District Court action, no documents had ever been

shipped from the Pima Agency office to the AIRR prior to 2007. (Declaration of Frances Joe, at

¶ 4, attached hereto as Exhibit I.)

In the summer of 2007, however, shortly after discovery commenced in this action, the

Office of Trust Records (“OTR”) moved 756 boxes of records from the Pima Agency in Sacaton,

Arizona to Lenexa, Kansas to be stored with approximately 175,000 other boxes of inactive

Indian records. (Joe Declaration, at ¶ 4; Declaration of Cecelia Martinez, at ¶ 5, attached hereto

as Exhibit J; Abeita Declaration, at ¶ 18; BISS Selection Refinement Procedures,

(H57HTA055409.))2 Because Defendant also maintains records for the Gila River Indian

Community at the Pima Agency office, Ak-Chin has no way of knowing how many boxes of the

756 boxes Defendant sent to the AIRR contained Ak-Chin’s records.

Ak-Chin’s documents maintained at the local agency office were re-arranged by OTR or

its contractors prior to being shipped to the AIRR. The Indian Affairs Records Management

Manual (“IARMM”), Chapter 4.0, Section 4.1 Transfer of Records, which sets forth the policies

2 There is a discrepancy in Defendant’s declarations regarding the number of boxes sent from Pima Agency to AIRR in the summer 2007. Ms. Martinez, the Superintendent of the Pima Agency testified that 765 boxes of records were moved from the Pima Agency to the AIRR, while Ms. Abeita, the Director of the Office of Trust Records testified that 756 boxes were moved. (Declaration of Cecelia Martinez, at ¶ 5; Abeita Declaration, at ¶ 18.)

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and procedures for retiring records, instructs that when documents from an agency are being

prepared to be shipped to the AIRR, the files must be re-arranged so that they are “place[d]

chronologically by year with the earliest year in the front of the box.” (Abeita Declaration, at ¶

12, Attachment C, page 6 of 15.) The OTR or its contractor, Labat-Anderson, also must review

all of the documents to “[s]eparate trust records from non-trust records,” meaning that either

“trust” or “non-trust” records are removed from existing files. (Abeita Declaration, Attachment

C, page 7 of 15; May 8, 2008 Declaration of Ethel Abeita, ¶ 5, attached hereto as Exhibit K..)

After that, the contractor re-arranges the documents additionally so that “the files [are] arranged

by case number or alphabetically by name.” (Abeita Declaration, Attachment C, page 7 of 15.)

Accordingly, the documents, in the process of being sent to the AIRR, are irrevocably shuffled

around and placed in a different order than they had been kept while being actively used by

agency personnel.

Ethel Abeita, the Director of OTR, further explained the practical implication of OTR’s

shipping procedures: “[w]hen preparing records for shipment to and storage at the AIRR, if file

folders from different record series have been commingled, [OTR’s contractor] will sort the file

folders in accordance with the record series listed in 16 Bureau of Indian Affairs Manual

(“BIAM”).” (May 8, 2008 Declaration of Ethel Abeita, ¶ 6.) Therefore, as Ms. Abeita

explained, “[i]n the course of this sorting process, files from differing filing cabinets that fell

within the same record series could be combined, while files falling in different record series

which may have been boxed together for storage would be sorted by the correct record series,

and could end up in different boxes.” (May 8, 2008 Declaration of Ethel Abeita, ¶ 6.) Because

the files are so frequently arranged in a manner different from their normal order, not

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surprisingly, “it can be difficult to trace where a file folder was originally stored.” (May 8, 2008

Declaration of Ethel Abeita, ¶ 6.)

In short, the net result is that during the process of shipping documents from an agency to

the AIRR, OTR or its contractors completely reorganize the documents from how they had been

maintained at the agency office.3

E. The Box Index Search System used at AIRR is unworkable. According to Defendant, after the boxes are received at the AIRR, they are indexed.

(Declaration of Abeita, at ¶ 14.) The Box Indexing and Search System (“BISS”) is the database

tool used by Defendant to facilitate the retrieval of the approximately 175,000 boxes of records

stored at AIRR. (BISS Box Selection Refinement Procedures, (H57HTA055409).) BISS is

supplemented by a software system called “ArchivalWare,” which is the software used by

Defendant to access the BISS database. (Parris Declaration, at ¶ 9.)

The indexing process, in Defendant’s own words “is not designed to and does not result

in a document-by-document level index.” (BISS Box Selection Refinement Procedures,

(H57HTA055409).) In fact, document titles are not even required to be part of the BISS Index.

3 In Ak-Chin’s District Court action, Defendant submitted declarations of administrators at the Pima Agency Office, WRO and LTRO who averred – inconsistently with the foregoing testimony of OTR Director Abeita – that the files at their agencies are shipped to AIRR in the same manner as they are maintained at the agencies. See Declaration of Matt Crain (“Crain Declaration”), at ¶ 4, attached hereto as Exhibit L; Joe Declaration, at ¶ 3; Declaration of Donna Peigler (“Peigler Declaration”), at ¶ 4, attached hereto as Exhibit M. As these administrators readily admit, however, they do not personally oversee the packing and shipment of the records. See Crain Declaration, at ¶ 4; Joe Declaration, at ¶ 4; Peigler Declaration, at ¶ 4. Instead, the packing and shipping of the records is conducted by OTR or its contractor, Labat-Anderson. (May 8, 2008 Declaration of Ethel Abeita, ¶ 5.) See In re Sulfuric Acid Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005) (rejecting declaration offered as proof of production of documents as they are kept in storage facility because it did not reflect personal knowledge of how the stored documents were handled before and after they were sent to that facility).

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(BISS Box Selection Refinement Procedures, (H57HTA055410).) Rather, they are indexed at

the file level only. (Parris Declaration, at ¶ 8.) Moreover, important identifying information,

such as the Tribal Code, a three-digit unique numeric code assigned by Department of Interior

(“DOI”) to each tribe, is not a required field in BISS. (BISS Box Selection Refinement

Procedures, (H57HTA055410).) The same is true with respect to the Agency Code, the alpha

numeric code that identifies the specific agency office to which documents pertain. (BISS Box

Selection Refinement Procedures, (H57HTA055410).) Therefore, unless there is some specific

indication made in the BISS, it frequently is not possible to tell which tribe or agency relates to

the files. This stands in stark contrast to how documents are generally held in the ordinary

course of business, when the tribe and agency are easily discernable.

Because Defendant has failed to capture this most basic information in its index, the

BISS Index is unworkable. In fact, Defendant readily admits in its “Refinement Procedures”

which it provided to Ak-Chin to assist it in narrowing Defendant’s search, that because “BISS is

a document type (not a specific document level) index, the resulting box listing is likely to

include boxes that may not, in fact, contain responsive documents.” (BISS Box Selection

Refinement Procedures, (H57HTA055410) (emphasis added).) The most Defendant can promise

is that Ak-Chin may be able to determine: “1. Boxes that are most likely to contain responsive

documents; 2. Boxes that are least likely to contain responsive documents; and 3. Boxes that

need further analysis to make a determination to search or not.” (BISS Box Selection

Refinement Procedures, (H57HTA055410).) The uncertainty created by Defendant’s failure to

capture critical information in its index guarantees that if Ak-Chin were required to search for its

records at the AIRR, hundreds or even thousands of man-hours might well be expended futilely

searching through boxes that do not even contain responsive documents.

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1. Defendant unnecessarily attempts to require Ak-Chin to search for records at the AIRR in the District Court action.

Ak-Chin initially encountered this same issue with Defendant in the District Court action.

There, Ak-Chin served Defendant with narrow document requests seeking documents evidencing

the creation of 15 specific rights-of-way. In response, Defendant claimed that Ak-Chin would

need to search for responsive materials at the AIRR; and it provided Ak-Chin with the results of

queries it had run on BISS for responsive documents. According to the results of those queries,

there were supposedly 8,220 boxes potentially containing responsive documents at the AIRR.

(July 31, 2008 letter from Kevin Regan to Ak-Chin’s counsel, attached hereto as Exhibit N.)

For months, Defendant maintained its position that it would be necessary for Ak-Chin to

search for the rights-of-way records it was seeking at the AIRR. Then two weeks ago, Ak-Chin

learned that no responsive documents had been shipped to the AIRR. Indeed, declarations of

BIA administrators at the Pima Agency, WRO and LTRO revealed that no documents regarding

rights-of-way were sent to the AIRR for storage until after the right-of-way in question had

expired or had otherwise been terminated. (Joe Declaration (Pima Agency), at ¶ 5; Crain

Declaration (WRO), at ¶3; Peigler Declaration (LTRO), at ¶ 3.) Since all of the rights-of-way at

issue are still active and have not expired or been terminated, there are in fact no documents at

the AIRR responsive to Ak-Chin’s requests in the District Court action. Had this information not

come to light, Ak-Chin would have faced the possibility of having to search more than 8,000

boxes of documents – or, with an average of 2,000 pages per box, in excess of sixteen million

pages – only to discover that no responsive documents were to be found anywhere in the boxes

of stored trust records that Defendant had identified.

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2. Ak-Chin’s experience with BISS in this action.

Similarly, in this action, in response to Ak-Chin’s document requests and interrogatories,

rather than producing the documents and information responsive to Ak-Chin’s requests,

Defendant has produced to Ak-Chin’s counsel a Compact Disc containing results of queries, in

Microsoft Access (“MS Access”) format, which Defendant has run on BISS. Defendant’s search

has identified 1,308,200 files (or 34,293 boxes) which potentially may contain documents

responsive to Ak-Chin’s discovery requests. Not surprisingly, just a cursory review of the files

listed reveals that these query results include thousands of files which, on their face, do not

pertain to Ak-chin at all, but instead to other Tribes and individual Indians. Ak-Chin has filed a

copy of a CD, which shows Defendant’s search results in MS Access format (the form Defendant

provided to Ak-Chin), under seal with the Court.

Along with the CD, Defendant has produced a document entitled the “BISS Box

Selection Refinement Procedures,” which contains Defendant’s suggestions on how to narrow

Defendant’s search results. Because MS Access is a database which requires specialized training

to use, Ak-Chin’s counsel only could find one person, among its 58 Information Technology

(“IT”) employees, adequately trained in MS Access to conduct this search. This person, a

Structured Query Language (“SQL”) administrator, wrote a query in SQL code, using the

additional information provided by Defendant to narrow the search results. (See Query in SQL,

attached hereto as Exhibit O).

The Query conducted by Ak-Chin’s counsel, using the terms recommended by

Defendant, resulted in 7501 entries or 681 boxes of records. For ease of reference, Ak-Chin

converted the results of this query into Microsoft Excel, a more user-friendly format for users not

trained in MS Access, hiding those fields which were not searched. Ak-Chin has filed a CD

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containing this MS Excel spreadsheet under seal with the Court. Again, just a cursory review of

the results of the search reveals that thousands of the entries do not pertain to Ak-Chin.

More disturbing, however, is that due to Defendant’s failure to index the documents by

Tribe or to adequately describe the documents in the files, Ak-Chin cannot even determine

whether many of these boxes contain responsive materials regarding Ak-Chin or another Tribe.

For example, there are boxes entitled “Schedule of Cancelled Checks” and “Special Deposits”

with a designated year. These boxes very well may contain records responsive to Ak-Chin’s

requests, but because there is no Tribal Code or Agency Code associated with the box or other

identifying information, Ak-Chin does not know for sure that it even contains its records. These

few examples, among many, indicate that Ak-Chin would have to search these boxes and

hundreds of boxes similarly identified to be sure they did not contain responsive materials.

Significantly, Defendant’s own Refinement Procedures state that “a file/box can generally be

eliminated if it specifically identifies a different Tribe or Agency office that is not involved in the

administration of the Tribe’s trust resources.” (BISS Box Selection Refinement Procedures,

(H57HTA055412).) Yet, because the Tribal Code and Agency Office are not required fields in

the BISS index, often this information is not captured in the BISS index, meaning that the only

way for a Tribe to eliminate certain boxes is to manually review them.

3. Other Tribes’ Experiences with BISS.

Ak-Chin’s fears of having to sift through thousands of boxes of documents, only to find a

few responsive documents, are not unfounded. Other Tribes have suffered the consequences of

Defendant’s utter failure to accurately identify tribal records stored at the AIRR.

For instance, Mr. Jim Parris, a consultant for Indian tribes with extensive experience as a

former BIA official, made nine visits to the AIRR on behalf of three Tribes searching for records

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in support of breach of trust cases against the United States. (Parris Declaration, at ¶¶ 3, 6.) In

connection with these engagements, Mr. Parris became intimately familiar with BISS. (Id. at ¶

7.) Mr. Parris determined that the BISS suffers from a “number of defects,” making it of limited

value in searching for Tribal Trust records at the AIRR relevant to Tribal breach of trust claims.

(Id. at ¶ 10.)

For example, the BISS typically lists only the titles of files in a particular box without

further information about the contents of the documents within the files. (Id. at ¶10; see, e.g.,

MS Access CD and MS Excel CD.) In addition, in some cases, the file titles in the BISS are not

detailed enough to locate specific relevant records or forms, and in other instances, some files

have been omitted entirely from the listing. (Parris Declaration, at ¶ 10.) Further, inconsistent

file labels have been used in the BISS for the same kinds of documents. (Id. at ¶ 10.) Based on

testing and document research that Mr. Parris performed with the BISS, Mr. Parris determined

that the BISS database is not reliable for finding: (a) specific government forms by form name or

number; (b) documents identified for specific Tribes; (c) documents identified to specific

locations; (d) documents by date; (e) documents containing Tribal versus individual Indian

Money (IIM) transactions; (f) specific transactions by transaction number; (g) specific reports; or

(h) specific transaction types. (Id. at ¶ 11.) Mr. Parris further identified Summary and Detail of

Trust Fund Reports, documents which Ak-Chin seeks in this action, as an example of documents

which he could not locate for a specific Tribe Code and Agency Location for “most years in any

decade.” (Parris Declaration, at ¶ 12; Ak-Chin’s Second Request for Production of Documents,

No. 27.)

In his declaration, Mr. Parris also recounts his effort to locate records relevant to a Tribal

trust case in which 350 boxes were identified as containing potentially relevant documents.

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(Parris Declaration, at ¶ 13.) After a search of these boxes at the AIRR, which involved over 300

staff hours, Mr. Parris and his team only located a handful of responsive documents. (Id. at ¶

13.) Ak-Chin fears that unless the Court intervenes in this action, it will similarly be tasked with

reviewing literally thousands of boxes of records which are not responsive to Ak-Chin’s

discovery requests, all because Defendant failed to adequately index Ak-Chin’s trust records.

The record here indicates that a trustee (United States) has taken the beneficiary’s (Ak-

Chin’s) records and commingled such records with all kinds of records, including the records of

other beneficiaries. Now that same trustee, sued for breach of trust, wants the beneficiary to

review millions of pages of documents to find the relative handful of documents relating to its

claims. One could not readily imagine a scenario where a litigant has made it more difficult and

prohibitively expensive for the opposing party to discover the information it needs. That a

sacred fiduciary relationship is involved here makes the actions all the more problematic. For

the reasons set forth below, Defendant should not be permitted such advantage from its breach.

ARGUMENT

For the reasons explained in detail below, Ak-Chin moves this Court to compel

Defendant to provide Ak-Chin with organized and labeled documents from the AIRR and to

respond fully to Ak-Chin’s interrogatories. There are three principal grounds for the Court to

grant this relief.

First, as Ak-Chin’s trustee, the United States is obligated to produce the documents and

information it has chosen to store at the AIRR to Ak-Chin. Second, Defendant cannot meet its

burden under Rule 34(b) to justify its position requiring Ak-Chin to search the AIRR for

responsive documents because the records stored there are no longer being “kept in the usual

course of business.” Third, Rule 33(d) only permits Defendant to produce business records in

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lieu of answering Ak-Chin’s interrogatories if the burden of deriving the answer is “substantially

the same” for both parties. Because Defendant is more familiar with BISS and is clearly in a

superior position to search for and retrieve those documents that are responsive to Ak-Chin’s

requests, Defendant may not avail itself of this option. Accordingly, Ak-Chin’s motion to

compel should be granted.

A. Defendant has a fiduciary duty to provide the responsive documents to Ak-Chin.

As trustee, Defendant is obligated to produce the documents and information stored at the

AIRR to Ak-Chin. It is elementary that as trustee, Defendant must provide “information . . .

reasonably necessary to enable [Ak Chin] to enforce [its] rights under the trust. . . .”

RESTATEMENT (SECOND) OF TRUSTS, comment c, § 173 (“Duty to Furnish Information”) (1959).

See Clifford v. United States, 136 F.3d 144, 152 (D.C. Cir. 1998) (a trust beneficiary is entitled to

receive “any information necessary to protect his rights under the trust”); see also Jordan v.

Federal Exp. Corp., 116 F.3d 1005, 1015 & n.17 (3d Cir. 1997) (trustee is under affirmative duty

to disclose when “trustee knows that silence might be harmful” to the beneficiary’s interests)

(quoting Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.

1993)). Cf. Osage Nation v. U.S., 66 Fed. Cl. 244, 250 (Fed. Cl. 2005) (“The Osage Nation is

entitled to all documents related to the trust, even if similar information is contained in multiple

documents”) (emphasis in original). And it is well-established that where a beneficiary requests

information about its trust corpus, the trustee (or in this case, the Defendant) is under a strict

duty to provide the requested information and, even without a request, to ensure the beneficiary

has whatever “material facts affecting the interest of the beneficiary which [Defendant] knows

the beneficiary does not know and which the beneficiary needs to know for his protection in

dealing with a third person with respect to his interest.” RESTATEMENT (SECOND) OF TRUSTS,

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comment d, § 173. See William F. Fratcher, 3 SCOTT ON TRUSTS § 17.5, at 1196-97 (5th ed.

2007) (“The beneficiaries are entitled to know what the trust property is and how the trustee has

dealt with it.”).

Indeed, the right of beneficiaries to obtain their trust information is quite apart from any

discovery rules and is enforceable as a matter of trust law applicable in this case. See Cobell v.

Norton, 240 F.3d 1081, 1093 (D.C. Cir. 2001) (“Cobell VI”) (“As trustee delegates these officials

ha[ve] a clear obligation to maintain trust records and furnish such records to beneficiaries upon

request”); Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750 (D.C. Cir. 1990) (“The duty

to disclose material information is the core of a fiduciary’s responsibility, animating the common

law of trusts . . . .”). Despite this clear obligation, the Unites States has failed to produce

information in response to Ak-Chin’s requests for information essential to its ability to protect its

interests and examine the Trustee’s breach of various fiduciary duties.

Moreover, Defendant asserts that its beneficiary, Ak-Chin, is required search the AIRR in

Lenexa, Kansas for its own records relating to assets and accounts held in trust by the United

States. The suggestion that the beneficiary bears the burden of sifting through thousands of

boxes for records that the trustee is required to manage and maintain is plainly not supported by

legal precedent. The AIRR storage facility is located nearly 1,400 miles away from Ak-Chin’s

Reservation. At the AIRR, the trustee employs examiners that have a level of familiarity with

the records themselves, databases and indices that Ak-Chin does not enjoy. The trustee has the

specialized knowledge of the AIRR storage facility procedures which allows it to more

efficiently search the records for information relating to Ak-Chin’s requests.

More fundamentally, it is the trustee’s actions that have made the beneficiary’s attempt to

obtain such documents near impossible. It is a breach of a fundamental trust duty for the trustee

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to ineffectively maintain a beneficiary’s trust records. See RESTATEMENT (SECOND) OF TRUSTS,

§ 172 (“Duty to Keep and Render Accounts”). The obligation of the “trustee . . . [is] to keep and

render clear and accurate accounts with respect to the administration of the trust.” Id. By taking

Ak-Chin’s records and commingling them with millions of other boxes of records unrelated to

Ak-Chin, it is beyond peradventure that Defendant has utterly breached this responsibility. It

cannot gain benefit and advantage from that breach by making it exponentially more difficult for

the beneficiary to sue them for mismanagement by creating a wholly inefficient storage system.

Put another way, the proposition that Ak-Chin must search through several thousand boxes with

the only guide, a dim and unworkable cataloging system, is not only ill-conceived and

inefficient, but more importantly, it is patently inconsistent with basic tenets of the fiduciary

relationship here involved. For this reason alone, Defendant should be required to produce to

Ak-Chin’s counsel documents stored at AIRR which are responsive to Ak-Chin’s discovery

requests and to fully respond to Ak-Chin’s interrogatories.

B. Archived documents stored at the AIRR are not kept in the “usual course of business” for purposes of Rule 34(b). Defendant’s production is also legally deficient under RCFC 34(b).4 Rather than

producing responsive documents stored at the AIRR, in response to most of the document

requests, Defendant has asserted time after time that “potentially responsive, non-privileged

documents” will be made available for inspection at the AIRR. (See, e.g., Defendant’s responses

4 The rules governing interrogatories and document production requests in the Court of Federal Claims and federal district courts are identical in substance. Compare RCFC 33-34 with FRCP 33-34; see RCFC 33-34, Rules Committee Notes, Rules of the U.S. Court of Federal Claims 2002 & 2007 Revisions. The Federal Circuit has stated that an examination of the “general federal law interpreting the corresponding Federal Rule of Civil Procedure [is] persuasive” in the interpretation of the RCFC. Wheeler v. U.S., 11 F.3d 156, 157 n.1 (Fed. Cir. 1993). See also Dairyland Power Coop. v. U.S., 79 Fed. Cl. 722, 727 n.4 (2007) ([C]ase law and the Advisory Committee Notes accompanying the Federal Rules of Civil Procedure will guide the interpretation of the Rules of the Court of Federal Claims”).

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to first requests for production nos. 1-30 and Defendant’s responses to second requests for

production nos. 1-5, 7, 12-14, 17-22, 26-28, 30-43 and 45-52.) Defendant also has produced to

Ak-Chin, in MS Access format, results of queries it conducted on the BISS Index, along with

instructions on how to potentially narrow that search.

Rule 34 permits a responding party to produce responsive documents for inspection by

the requesting party either “as they are kept in the usual course of business” or by “organiz[ing]

and label[ing] them to correspond to the categories in the request.” See, e.g., Renda Marine, Inc.

v. U.S., 58 Fed. Cl. 57, 63 (2003) (Hewitt, J.); Dairyland Power Coop. v. U.S., 79 Fed. Cl. at 728

(stating the rule). This Rule was amended in 1980 to add the “usual course of business”

language to allow the discovering party access to documents in the same manner in which they

were maintained by the producing party, so as to prevent “artificial shifting of documents” and

the “deliberate mixing [by the responding party of] critical documents with others in the hope of

obscuring the documents’ significance.” Fed. R. Civ. P. 34 Advisory Committee note (1980

amend). It is Defendant’s position, as expressed in its responses to Ak-Chin’s document

production requests and its October 14, 2008 letter, that the documents stored at the AIRR are

kept in the “usual course of business.” This position is plainly erroneous.

While Rule 34 allows a party to produce responsive documents as they are kept in the

ordinary course of business, it is Defendant’s burden, as the producing party, to demonstrate that

the documents made available to Ak-Chin at the AIRR are produced consistent with the “usual

course of business.” See Pass & Seymour, Inc. v. Hubbell Inc., No. 07-945, 2008 WL 4240490,

at *3 (N.D.N.Y. Sept. 12, 2008) (citing Johnson v. Kraft Foods North America, 236 F.R.D. 535,

540-41 (D. Kan. 2006) (noting that such proof includes “information about the manner in which

the [stored] documents were produced; i.e., where these documents were maintained or who

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maintained them and whether the documents came from one single source or file or from

multiple sources or files”); Cardenas v. Dorel Juvenile Group, Inc. 230 F.R.D. 611, 618 (D.

Kan. 2005)). To comply with the “usual course of business” form of document production, the

producing party must “show that the way in which the documents are kept [in storage] has not

changed from how they were kept in the usual course of business.” In re Sulfuric Acid, 231

F.R.D. at 363. Therefore, Defendant must offer documents responsive to Ak-Chin’s requests for

inspection in the same manner in which they were stored, organized and labeled at the agency

offices, without change. See id. Alternatively, Defendant must provide a complete and fully

accurate index so that Ak-Chin can make a “meaningful review” of the documents. See Pass &

Seymour, Inc., 2008 WL 4240490, at *6; U.S. Commodities Futures Trading Comm’n v.

American Derivatives Corp., No. 05-2492, 2007 WL 1020838, * 5-6 (N.D. Ga. Mar. 30, 2007).

Defendant has failed to do either here.

1. Defendant re-arranged Ak-Chin’s records prior to sending them to the AIRR and stored them with thousands of other Indian records. Defendant cannot show that the way the documents are kept at the AIRR has not changed

from how Ak-Chin’s documents were kept in the usual course of business. For this reason alone,

Defendant should be required to produce the records stored at the AIRR to Ak-Chin, organized

and labeled so as to correspond with the categories in Ak-Chin’s requests.

It is obvious that Ak-Chin’s documents stored at AIRR are no longer “kept in the usual

course of business” by virtue of the simple fact that they have been removed from the BIA

offices where they were created and initially maintained and are now stored and mixed with

175,000 boxes of documents of individual Indians and other Tribes. Based on the sheer volume

of records at the AIRR, which includes all “inactive” Indian records, versus the limited number

of records at Ak-Chin’s local agency office, Ak-Chin’s records are not being offered for

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inspection in the same manner as they were stored at the local agency offices. See Manufacturer

Direct, LLC v. Directbuy, Inc., No. 05-451 2007 WL 2114285, at *4 (N.D. Ind. July 19, 2007)

(“there is no doubt that if responsive documents are maintained in a warehouse among other

documents that have no relationship to the parties in this case, these documents cannot be said to

have been offered as kept in the usual course of business”).

Second, when Defendant packed Ak-Chin’s records to be shipped to the AIRR for

storage, it rearranged the records. For example, according to IARMM, which sets forth OTR’s

policies and procedures for retiring records, OTR or its contractors are required to separate trust

records and non-trust records. (Abeita Declaration, at ¶ 12, Attachment C, page 7 of 15.) This

means that if a file contains trust and non-trust records, the documents are removed from files.

(Abeita Declaration, Attachment C, page 7 of 15.) In addition, the IARMM requires that all files

be re-arranged chronologically and alphabetically. (Abeita Declaration, Attachment C, pages 6

and 7 of 15.) Indeed, that OTR re-arranges files prior to their being shipped to AIRR is

acknowledged by OTR’s Director, Ethel Abeita. (May 8, 2008 Declaration of Ethel Abeita, at ¶

6.).

That documents are re-organized when they are sent to storage is not surprising. For this

reason, courts generally view with skepticism claims that documents held in storage facilities are

kept in the “usual course of business.” For example, in In re Sulfuric Acid Antitrust Litig., 231

F.R.D at 363, the court held that a responding party as a general matter could not qualify to use

the “usual course of business” where, as here, it has maintained responsive documents in a

storage facility. See id. (“Storing documents may be a part of the usual course of business, but

stored documents are not kept in the usual course of business within the meaning of the Rule . . .

documents in storage [are] no longer kept in the ‘usual course of business’, they are kept in the

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usual course of ‘storage’”) (emphasis in original). Instead, there, the court ordered that the

producing party must respond by organizing and labeling responsive materials in accordance

with the alternative method of production under Rule 34(b).

2. The BISS index is unworkable and does not allow Ak-Chin to make a meaningful review of the documents. For the reasons stated above, the government cannot possibly produce responsive

materials in the same manner in which these documents were stored at the agency level.

Consequently, in order to avail itself of the “usual course of business” option under Rule 34(b), it

is incumbent upon Defendant to provide an organized filing system or index that would allow

Ak-Chin to make a meaningful review of the stored documents. See, e.g., In re Sulfuric Acid

Antitrust Litigation, 231 F.R.D. at 362-63; Doe v. District of Columbia, 231 F.R.D. 27, 36

(D.D.C. 2005); Residential Constructors, LLC v. Ace Property and Cas. Ins. Co., No. 05-1318,

2006 WL 1582122, at *3 (D. Nev. Jun. 5, 2006) (plaintiff required “to identify the files it has

produced and in which boxes or group of document numbers the files are located” in an index);

Oklahoma v. Tyson Foods, Inc., No. 05-329, 2007 WL 1498973, at *16 (N.D. Okla. May 17,

2007) (citation omitted). Indeed, this Court has determined that the “pivotal consideration in

deciding discovery challenges under Rule 34(b) . . . where a large number of documents have

been produced based on an ‘as they are kept in the usual course of business’ election is whether

the filing system for the produced documents ‘is so disorganized that it is unreasonable for the

[requesting party] to make [its] own review.’” Renda Marine, 58 Fed. Cl. at 64 (citing Natural

Res. Def. Council, Inc. v. Fox, No. 94-8424, 1996 WL 497024, at *5 n. 3 (S.D.N.Y. Aug. 30,

1996)). Here, it is clear that the filing system used by the government and produced to Ak-Chin

is unworkable.

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There are several reasons Defendant’s BISS Index makes it virtually impossible to locate

specific documents at the AIRR. First, the BISS typically lists only the titles of the files in a

particular box without further information. (Parris Declaration, at ¶ 10; see also MS Access CD

(filed under seal); Ms Excel CD (filed under seal).) In other words, the indexing process, in

Defendant’s own words, “is not designed to and does not result in a document-by-document

level index.” (BISS Box Selection Refinement Procedures, (H57HTA055409.); See also Jim

Parris Declaration, at ¶ 8.) Second, the file titles in the BISS are not detailed enough to locate

specific relevant records, and in many instances, some files have been omitted from the listing

altogether. (Parris Declaration, at ¶ 10; see also MS Access CD (filed under seal); MS Excel CD

(filed under seal.) Third, significant identifying information, such as a Tribal Code and Agency

Code, are not required fields in BISS. (BISS Box Selection Refinement Procedures,

(H57HTA055410)). Without this identifying information, Ak-Chin is unable to eliminate boxes

which may appear to have responsive information in them based on the file titles, but which are

for another Tribe.

The over-inclusiveness of BISS makes it virtually impossible to locate or identify

responsive records among the literally millions of pages of irrelevant, non-responsive documents

not attributable in any meaningful way to Ak-Chin. Such an index is clearly insufficient under

Rule 34(b), and it falls far short of showing how the materials now stored in Lenexa were

formerly maintained in the “usual course” as contemplated under the Rule. Indeed, courts have

held that a party may not utilize a system of record-keeping which “conceals rather than

discloses relevant records,” or which makes it “unduly difficult to locate them.” Kozlowski v.

Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976). Nor does the fact that Defendant has

an unwieldy system relieve it of its obligation to produce the responsive records. See Wagner v.

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Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) (“The fact that a corporation has an

unwieldy record keeping system which requires it to incur heavy expenditures of time and effort

to produce requested documents is an insufficient reason to prevent disclosure of otherwise

discoverable information”); Williams v. Taser Int’l, Inc., No. 06-51, 2006 WL 1835437, at *7

(N.D. Ga. June 30, 2006) (opining that the court would order defendant to organize and label

documents as responsive to plaintiff’s requests if it concluded defendant was “overly generous”

in identifying responsive documents). Moreover, in this case, Defendant has nobody to blame

but itself for having to conduct an extensive search for Ak-Chin’s records at the AIRR in

response to discovery requests by virtue of the fact that it chose to ship 756 boxes of records

stored at the Pima Agency to the AIRR in the summer of 2007. Defendant shipped these records

to the AIRR -- to be co-mingled with 175,000 boxes of records irrelevant to this action -- after

discovery had begun.

Because Defendant has failed to comply with Rule 34(b)’s “usual course of business”

election, this Court should order Defendant to produce the responsive documents to Ak-Chin and

to organize and label such documents to correspond to the categories in Ak-Chin’s requests, as

required by the Rule. See Johnson v. Kraft Foods North America, 236 F.R.D. at 541 (2006)

(finding that plaintiff failed to meet its burden of proving it produced documents in the ordinary

course of business and therefore requiring that it organize and label responsive documents as

required by Rule 34(b)). As noted above, the fact that the responding party is Ak-Chin’s

fiduciary makes such an outcome all the more appropriate. A trust beneficiary should not

effectively be denied access to its own records by the choices Defendant makes with respect to

relocating, indexing and storing potentially responsive materials – especially when the

beneficiary is seeking to hold the trustee accountable in a breach of trust suit.

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C. Defendant cannot rely upon 33(d) to require Ak-Chin to travel to the AIRR to search for records responsive to its interrogatories. In response to Ak-Chin’s Interrogatories, Defendant relies heavily upon Rule 33(d) to

justify its failure to provide responsive information. Defendant cites to Rule 33(d) in response to

each of Ak-Chin’s eight numbered interrogatories and states that as to records maintained at the

AIRR, “potentially relevant boxes of records” from which the response to the interrogatory may

be derived or ascertained “are set forth in the BISS query results that will be produced to

plaintiff.” (See Defendant’s Responses to Plaintiff’s Interrogatories.) Because Defendant’s

responses do not meet the criteria allowing a party to rely upon Rule 33(d), it should be ordered

to fully respond to Ak-Chin’s interrogatories.

Rule 33(d) permits a party served with interrogatories to produce business records from

which a response may be obtained in lieu of preparing a direct response, but a responding party

may only do so under two conditions. One of those conditions is when “the burden of deriving

or ascertaining the answer will be substantially the same for either party.” See RCFC 33(d).

That is, a responding party may rely upon Rule 33(d) when the requesting party would be as

capable of reviewing the documents and formulating a response as the responding party.5

In determining whether a party has properly asserted Rule 33(d), courts must first

determine whether the information is in fact burdensome for the responding party. See, e.g.,

Fresenius Medical Care Holding Inc. v. Baxter Intern., Inc., 224 F.R.D. 644, 652 (N.D. Cal.

5 The other condition is that the responding party specifies the records that must be reviewed “in sufficient detail” so that the interrogating party is able to identify responsive documents as well as the responding party could. Defendant also has failed to meet this criterion, but because the Court limited briefing in this motion to the issue of the AIRR, Ak-Chin will not address Defendant’s failure to specify records in this motion. If Defendant fails to rectify this deficiency in its responses when it supplements it discovery responses on or before November 21, 2008, however, Ak-Chin will address this issue in the Motion to Compel due to be filed on December 9, 2008. (See Court’s October 17, 2008 Order)(Docket No. 58).

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2004) (rejecting party’s reliance on Rule 33(d) because “Rule 33(d) was not designed to save a

party the effort of extracting information from a limited universe of documents”); Sabel v. Mead

Johnson and Co., 110 F.R.D. 553, 556 (D. Mass. 1986) (burden on responding party is a

prerequisite although not explicit in the rule)). To determine burden, courts use factual

determinations to weigh a variety of factors, including cost of the necessary research, the nature

of the relevant records, and the responding party’s familiarity with its own records. See T.N.

Taube Corp. v. Marine Midland Morg. Corp., 136 F.R.D. 449, 454 (W.D.N.C. 1991).

Of these concerns, familiarity with a party’s own records is a “key factor.” Id. at 454.

For example, in T.N. Taube Corp., the court held that where the records offered by the

responding party were on microfilm and the research required was not just technical, but also

required knowledge regarding the organization of the records, and the location within those

records of the relevant, responsive documents, a greater burden had been placed on the inquiring

party. Id. at 454. Accordingly, that the responding party could not invoke Rule 33(d) and

instead ordered it to respond fully to the interrogatories. Id.; see also L.H., et al., v.

Schwarzenegger, No. 06-2042, 2007 WL 2781132, at *3 (E.D. Cal. Sept. 21, 2007) (citing T.N.

Taube); BUSINESS & COMMERCIAL LITIG. IN FED. COURTS § 21:50 (2d ed.) (“[I]f the records

which answer the interrogatory are filed in a special manner that the responding party can much

more quickly and easily access, this places the greater burden on the inquiring party, making the

[Rule 33(d)] option inapplicable”). In addition, while Rule 33(d) is intended to relieve the

responding party of a burdensome search of its own records, it does not permit a party to

“impose on an interrogating party a mass of records as to which research is feasible only for one

familiar with the records.” Fed. R. Civ. P. 33 Advisory Committee Note (1970 amends.)

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So here, Defendant’s attempt to impose a monumental burden on Ak-Chin by requiring it

to review literally thousands of boxes of records stored at Lenexa is improper under Rule 33(d)

and must be rejected. Research using the BISS indices will be far less burdensome for

Defendant because it is more familiar with Ak-Chin’s documents and how they have been

organized at the AIRR – after all, Defendant selected the “inactive” trust records to be sent to

Lenexa for storage purposes, developed the BISS system and then indexed the arriving materials

utilizing that system. (Abeita Declaration, at ¶ 14.) Thus, the burden imposed on Defendant in

reviewing Ak-Chin’s records for responsive information is clearly less onerous than if the

responsibility for doing so were unfairly shifted to Ak-Chin. See, e.g., In re Sulfuric Acid

Antitrust Litig., 231 F.R.D at 366-67 (granting plaintiff’s motion to compel defendants to review

350 boxes of documents because defendants had previously indexed and cataloged the boxes and

were familiar with them so that the burden on defendants was not an undue one).

It also will be far less costly for Defendant to conduct its own searches. Defendant has a

staff of researchers located at the AIRR in Lenexa, Kansas. (Abeita Declaration, at ¶ 6.) In

contrast, to conduct a search of its trust records at the AIRR, Ak-Chin would be forced to pay for

consultants and counsel to travel thousands of miles to Lenexa, Kansas. Defendant also is

familiar with the tools needed to search for records at the AIRR. BISS is supplemented by a

software system called “ArchivalWare,” which is the software used to access the BISS database.

(Parris Declaration, at ¶ 9.) Defendant’s researchers use ArchivalWare regularly to conduct its

non-litigation searches. (Abeita Declaration, at ¶ 6; Parris Declaration, at ¶ 9.) At the same

time, Defendant is insisting that Ak-Chin rely upon a different software, MS Access, to conduct

its searches. MS Access is a database which requires extensive training to operate, so much so

that to narrow the search results in MS Access based on the terms Defendant provided, Ak-

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Chin’s counsel sought the assistance of an IT expert who took several hours to write a query

using SQL code for the search.

Moreover, because it created the BISS Index, Defendant is more capable of identifying

search terms it developed which may narrow search results. Indeed, several of the search terms

which Defendant provided to Ak-Chin to narrow the results on the MS Access CD, such as the

DOI tribal code assigned to Ak-Chin (“612”) and judgment fund extract numbers, were terms

which Ak-Chin did not have knowledge of prior to receiving this information from Defendant.

(See BISS Box Selection Refinement Procedures.) In short, it will be far less burdensome on

Defendant to conduct any necessary search at the AIRR for responsive information than it would

be to impose that burden of doing so on Ak-Chin. Therefore, Defendant cannot properly invoke

Rule 33(d) to avoid compiling and presenting the requested trust information.

CONCLUSION

For all of the foregoing reasons, Plaintiff Ak-Chin Indian Community respectfully

requests that its Motion to Compel be granted. A proposed order is attached directing Defendant

to supplement its August 29, 2008 responses by providing additional information and documents

from the AIRR determined to be responsive to Ak-Chin’s interrogatories and production

requests. Plaintiff requests that it be entered so as to allow for fact discovery to be completed

without unreasonable expense and delay.

This the 31st day of October, 2008.

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Respectfully submitted,

/s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail: kharper@kilpatrickstockton.com G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail: baustin@kilpatrickstockton.com CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail: cmunson@kilpatrickstockton.com Kilpatrick Stockton LLP 607 14th Street, N.W. Washington, D.C. 20005 Tel: (202) 508-5800 Fax: (202) 505-5858 Attorneys for Plaintiff

The Ak-Chin Indian Community