Free Notice (Other) - District Court of Federal Claims - federal

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 1 of 46

DECLARATION OF GLADYS COJOCARI
NOVEMBER 30, 2007

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 2 of 46

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NAVAJO NATION, f.k.a. NAVAJO TRIBE OF INDIANS, Case No. 1:06-cv-00945-L Plaintiff Judge Francis Allegra

V,

DECLARATION OF GLADYS COJOCARI UNITED STATES, Defendant

I, Gladys Cojocari, pursuant to 28 U.S.C. § 1746, do hereby declare and state: 1. I am an Attomey=Advisor with the Indian Trust Litigation Office, Office of the Solicitor, Department of Interior ("lnterioP'). I am one of the agency counsel in the above-captioned case. 2. In March 2007, well before the filing of plaintiffs motion for the entry of a Record Retention Order ("RRO") in this case, I worked with the Division of General Law in the Solicitor's Office to develop a notice to all Interior offices and bureaus to preserve information potentially relevant to any tribal trust litigation, including the current case brought by the Navajo Nation ("Jensen Memorandum"). The obligation to preserve documents as expressed in this Memorandum was based on this Court's Orders issued in March 2004 in Jicari//a Apache Tribe v. U.S. and Pueblo v. Laguna v. U.S. The

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 3 of 46

Memorandum was signed by Lawrence Jensen, Deputy Solicitor, and Was sent out to all Interior offices and bureaus on March 12, 2007. Among its other provisions, the Memorandum specifically noted the possibility of sanctions in the event that its terms are not complied with by all addressees. The 3ensen Memorandum also specifies common legal issues in tribal trust cases to establish a definition of "relevant documents." A copy is attached as Exhibit A. 3. The Jensen Memorandum also reiterated the preexisting Interior policy requiring the indefinite retention of all categories of Indian fiduciary trust records, regardless of the existence of any pending litigation. That policy is detailed in the record retention schedules contained in 16 Bureau of Indian Affairs ("BIA") Manual, expressly applicable to records maintained by BIA and ("OST.") Interior's records retention policy is supported by, among other measures, extensive records training conducted by the Office of Trust Records ("OTR"), and the policy of shipping all inactive records to the American Indian Records Repository ("AIRR"), an archival quality facility, when the period for these records to be retained on site has expiredl See Declaration of Ethel Abeita, June 21, 2007, attached as Exhibit B. 4. On March 1, 2007, I had the first of several conversations with Deborah Benally, the designated liaison from the BIA's Navajo Regional Office ("NRO"), concerning the location, preservation and movement of records in BIA offices in the Navajo Region. In one of those conversations, Ms. Benally advised me of the document preservation directive issued in the Navajo region, as detailed in the November 30, 2007 Declaration

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 4 of 46

of Omar Bradley included herein as Exhibit 2. 5. i transmitted the Court's Order issued on September 10, 2007 to OTR, the Office of the Special Trustee ("OST"), and the Navajo Regional Office ("NRO") via fax, on September 12, 2007. It was accompanied by a letter I prepared that outlined the key provisions of the Order, including the requirement that it be distributed to all relevant personnel. I further advised the OTR, OST and the NRO addressees of my availability to answer any questions immediately and throughout the course of the litigation. In this regard, I am functioning as the contact person within the Solicitor's Office for purposes of the Order, assisted by Holly Clement and Tom Kearns of the Solicitor's Office who are co-counsel on this case. Following my transmission of the Order and the accompanying September 12 letter, I conducted a follow-up conference call with OST, OTR and NRO personnel, including among others, Ms. Benally and Ms. Abeita, on September 21, 2007. 6. On October 22, 2007, I prepared and sent a second letter focusing on the records preservation aspects of the Order and providing suggestions for possible compliance mechanisms to the NRO. I then held a follow-up conference call with Mr. Bradley and Ms. Abeita on November 6, 2007. I intend to meet with Mr. Bradley and other members of his staff concerning the implementation of additional policies and procedures to comply with the Court's Order when I travel to the NRO during the week of December 2, 2007. I am aware that the NRO is preparing a Compliance Action Plan, as detailed in the November 30, 2007 Declaration of Omar Bradley.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 5 of 46

7. Since November 10, 2007, I have taken other steps to see that this Court's Order is disseminated to other Interior offices and bureaus in addition to BIA and OST. For example, I assisted in the preparation of the November 20 Memorandum from Paul Smyth, Counselor to the Solicitor, addressed to the Office of the Secretary and the heads of the various offices and bureaus within Interior. A copy of that memorandum is attached as Exhibit C. Among other things, the Memorandum requested that each off~ce and bureau appoint an RRO Compliance Coordinator with responsibility for documenting ongoing compliance measures. The Solicitor's Office will work with those individuals in providing guidance to each office and bureau in adopting compliance policies and procedures appropriate to the unique structures and functions of each such office and bureau within Interior. 8. I have also been working with Interior's Records Officer, Ed McCeney, to develop a notice that will remind the Chief Information Officers of the Interior trust offices and bureaus of the preservation obligations contained in this Court's Orders issued in Jicadl/a Apache Tribe v. United States and Pueb/o Laguna v. United States, especially as it pertains to the preservation of electronically stored information. This notice is going through the final review process within Interior and I expect it will be ready for dissemination the week of December 17, 2007. 9. Thus far, the compliance measures taken by Interior have focused most directly on the offices and bureaus that are the most likely repositories of records relevant to the -4-

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 6 of 46

Navajo, namely BIA and OST. However, the NRO has provided me with a list of their contacts in other Interior and non-Interior offices and bureaus that are believed to also maintain information relevant to this case. I intend to contact those other Interior offices and bureaus (and I have advised the Department of Justice of the identities of other United States Government entities), with the goal of ensuring that all such offices and bureaus receive copies of this Court's Order, together with appropriate reminders of its requirements to preserve all information relevant to this litigation. My target date for accomplishing these tasks is December 30, 2007. i 1, I wig work with my colleagues in the Solicitor's Office to assist Interior's offices and bureaus in refining existing policies and procedures for ensuring that appropriate compliance measures are in place at all levels of Interior's organizational structure, as to this and other tribal trust record retention ordersl Those further refinements, some of which are expected to be in place on or about December 21,2007, will be reported to the Court in future filings.

-5-

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 7 of 46

i declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on November 30, 2007.

-6-

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 8 of 46

DECLARATION OF GLADYS COJOCARI EXHIBIT A

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 9 of 46

¯ United States Department of the Interior

@
To;

OFFICE OF THE SOLICITOR

MAR 1 2 2007
MEMORANDUM Office of the Secretary Office of the Solicitor Office of the Special Trustee Office of Historical Trust ¯Accounting Office of the Inspector General Office of Assistant Secretary - Indian Affairs Bureau of Indian Affairs Office of Assistant Secretary - Policy, Management, and Budget Office of Hearings and Appeals Office of Assistant Secretary - Land and Minerals Minerals Management Service Office of Surface Mining Bureau of Land Management Office of Assistant Secretary - Fish, Wildlife, and Parks Fish an'd Wildlife Service Office of Assistant Secretary - Water and Science Bureau of Reclamation U,S, Geological Survey Lawrence J. Jensen Sf Deputy Solicitor ~,V-~,~'~'

From:

Subject:

Litigation Hold: Preservation of Information in Tribal Trust Cases

As you may know, eighty Tribal plaintiffs, including some Indian groups that are not fe.zlerally recognized, recently filod actions against the Department of the Interior ("D~-partrnent") assuring claims of breach of trust and/or asset mismanagement (collectively, "Tribal Trust cases"). This gives rise to an extremely important obligation under Federal law to preserve material that is or may be relevant to the Tribal Trust cases. The purpose of this Litigation Hold is to inform you of the scope of this obligation and what actions are required to comply with it. The preservation of information will primarily be carried out by individual employees and contractors (any reference herein to "'employees" includes contractor employees). Therefore, it is imperative that a copy of this Litigation Hold reaches every employee who may possess relevant information in your bureau or office.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 10 of 46

Information To Be Preserved: The information that must be preserved consists of all "documents, data, and tangible things" in the possession, custody, or control of your bureau or office that are ormay be relevant to the subject matter of the Tribal Trust eases. "Documents, data, and tangible things" encompass paper documents, electronically stored information (discussed below), and other materials, such as maps, videos, calendars, charts, and similar items. Attached is a list identifying the individual Tribal plaintiffs whose information must be preserved. Additionally, the Native American Rights Fund has filed an action purporting to be on behalf of all other Tribes that received materials as part of the Tribal Reconciliation Project. Therefore, this Litigation Hold covers information concerning any Tribe or group of In. dians for which the Department administers or has administered assets iN trust. The Tribal Trust cases concern the management and accounting of tribal resources and funds held in trust by the Department. Accordingly, information that is or may be relevant to these cases includes, without limitation, anything reflecting, referring or relating to: 1. any asset, such as funds, land, minerals, forestry, sand and gravel, or other resources, that is, or at any time has been, held in trust by the United States or its agents for Tribes or Indian groups ("trust asset"); 2, policies, procedures~ guidelines, or correspondence relating to any aspect of the management or administration of trust assets; 3. proceeds, interest, or income from trust assets; or disbursement, distribution, disposition or transfer of any trust assets; 4. reports, appraisals, reconciliations, or evaluations of any trust assets; and 5. information that serves to identify, locate, or link any relevant information, such as file inventories, file folders, and indices. The timefxame of information that must be preserved is from a yet-t0-be-determined beginning date through the present, which means that information created in the fuUtre must also be preserved. General Preservation Reouiremeuts" t~mployees are required to take "'reasonable steps" to preserve the information described above. Reasonable steps, at a minimum, include ensuring that information is not purged pursuant to a records disposition schedule or otherwise inadvertently destroyed. This obligation also extends to records maintained in off-site storage facilities, which may include, in some instances, Federal Records Centers, At the present time, this obligation is only to identify and preserve the information, You will be notified if anything additional is required as the Tribal Trust cases proceed.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 11 of 46

Preservation of Ele.ctronically Stored Info.rmafion (uESr?).. Under new amendments to the Federal Rules of Civil Procedure, the preservation requirement explicitly relates to electronically stored information.. ESI can include, but is not limited to: E-mail (including attachments); Instant messages; Electronic calendars, task lists, and other organizational aids; Word processing documents; Spreadsheets; Databases; Audio and video recordings; and Voieemail. ESI may be located on network systems and servers, local hard drives, laptops, storage media, (including flash drives, diskettes, and CD-ROMs), a-~ well as on PDAs (such as Blackberries) and cell phones. Note that home computers, cell phones, and other devices used for work may also contain relevant or potentially relevant information that must be identified and preserved. Further, the hard drive and network files of departing employees must be identified and preserved. Your IT personnel will be responsible for taking steps to preserve ESI from a technical standpoint. Enaployees should seek assistance from the IT personnel as necessary to preserve their ESI, and in no ease should they delete any relevant information. (~onclusion: Immediate compliance with this Litigation Hold is essential to protect the Department from lengthy---and avoidable--discovery disputes that consume bureau time and resources and other negative consequences, such as monetary sanctions and evidentiary inferences that would limit the Department's ability to defend against the claims in the eases. This Litigation Hold also protects individual managers and employees by providing them basic guidance oft how to comply with their legal requirements. Thank you for your prompt attention to this matter. Please direct any questions about this memorandum to Paul Smyth, Counselor to the Solicitor, (202-208-4307). Attachment

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 12 of 46

Tribes and Indian Groups with Pendine Tribal Trnst Cases (As of 3/06/2007) Ak-Chin Indian Community Alabama Quassarte ~f~bal Town Assmlbome & Sioux Gros Ventre Tribe and Assiniboine Tribe Blackfeet Tribe of the Blackfeet Indian Reservation Cheyenne River Sioux Tribe The Chickasaw Nation and Choctaw Nation Chippewa Cree CPembina") Chippewa Cree Tribe of the Rocky Boy's Reservation Coeur d'Alene Tribe Colorado River Indian Tribes The Confederated Tribes oft.he ColviUe Reservation Confederated Tribes of the Goshute Reservation Confederated Tribes of the Warm Springs Reservation of Oregon Crow Creek Sioux Tribe Delaware Tribe of Indians and The Delaware Trust Board Delawares of Idaho, he. Eastern Shawnee Tribe of Oklahoma Gila River Indian Community Haudenosatmee, Onondaga Nation Hoopa Valley Tribe Hopi Tribe Iowa Tribe of Kansas and Nebraska

Case 1:06-cv-00945-FMA
Jioarflla Apache Nation Kaw Nation of Oklahoma

Document 41-2

Filed 12/04/2007

Page 13 of 46

Makah Indian Tribe of the Makah Indian Reservation Miami Tribe of Oklahoma Muscogee (Creek) Nation of Oklahoma Navajo Nation Nez Peree, et al (Class Action) Mescalem Apache Tribe Tule River Indian Tribe Hualapai Tribe Yakama Nation Klamath Tribes Yurok Tribes Cheyenne-Arapaho Tribe Sac and Fox Nation Santee Sioux Tribe of Nebraska Nez Perce Tribe Northern Cheyenne Tribe of Indians Northwestern Band of Shoshone Indians Oglala Sioux Tribe Omaha Tribe of Nebraska Osage Nation and/or Tribe of Indians of Oklahoma

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 14 of 46

Ot0e-Missouria Tribe of Indians of Oklahoma Paiutc-Shoshone Indians of the Bishop Community of the Bishop Colony, Califorait Passarnaquoddy Tribe of Maine Pawnee Nation of Oklahoma Pcchanga Band of Luiseno Mission Indians of California Ponca Tribe of Indians of Oklahoma Prairie Band of Potawatomi Nation Pueblo of Lagtma Pueblo of Santa Aria Quechan Tribe of the Fort Yuma Indian P,e~ervafion Red Cliff Band of Lake Superior Chippewa Indians Rosebud Sioux Tribe Pound Valley Indian Tribes Salt River Pima-Maricopa Indian CotlLmUnity San Manuel Band of Serrano Missior~s Indians Soninolo Nation of Oklahoma Shoshone~Batmock Tribes of the Fog Hall Reservation The Shoshone Indian Tribe and Nolthem Arapaho Tribe oft.he Wind River Reservation, Wyoming Eastern Shoshone Tribe and Northern Arapaho Tribe Soboba Band of Luiseno Indians Sokaogon Chippewa Community (aka Mole Lake Band of Lake Superior Chippewa Indians) Standing Rock Sioux Stillaguamish Tribe of Indians Swinomish Indian Tribal Community Te-Moak Tribe of Western Shoshone Indians (Class Action) Three Affiliated Tribes of the Port Berthold Reservation Tohono O'odham Nation Tortkawa Tribe of Indians of Oklahoma United Keetoowah Band of Cherokee Indians in Oklahoma. Ute Indian Tribe of the Uintah and Ouray Reservation Winnebago Tribe of Nebraska

Case 1:06-cv-00945-FMA
Wyandot Nation of Kansas Yankton Sioux Yomba Shoshone Tribe

Document 41-2

Filed 12/04/2007

Page 15 of 46

4

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 16 of 46

DECLARATION OF GLADYS COJOCARI EXHIBIT B

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 17 of 46

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NAVAJO NATION, f.k.a. NAVAJO TRIBE OF INDIANS, Case No. 1:06=cv-00945-L Plaintiff Judge Francis AIlegra

V°

DECLARATION OF ETHEL ABEITA UNITED STATES, Defendant

I, Ethel Abeita, as Director of the Office of Trust Records, pursuant to 28 U.S.C. § 1746 do hereby declare and state: 1. I have held the positionof Director, Office of Trust Records. (OTR), Office of the Special Trustee for American Indians (OST), Department of the Interior (Intedor), since August 2002, OTR is responsible for the management of the Bureau of Indian Affairs (BIA) and OST records programs consistent with the requirements of 44 U.S.C. Chapter 31. 2. 1 have worked for the Federal Government for over twenty years. I was formerly the Assistant Regional Solicitor of the Southwest Regional Office in Albuquerque, New Mexico. In January 2000, I became the Deputy Regional Director for the BIA's Southwest Regional Office and held that position until I was detailed to the Office of Trust Records in August 2002.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 18 of 46

3.

In my new position at OTR, I immediately began working with the Assistant

Deputy Secretary, Dr. Abraham Haspel, io develop a Strategic Plan ("OTR Work Plan") to identify and address specific weaknesses in BIA's and OST's records management programs. 4. A key component of the OTR Work Plan was to centralize all Indian Affairs

records in a safe and secure storage facility. Centralization had already begun when 1 joined OTR. Indian Affairs records located at the various regional Federal Records Centers were being transshipped to the Federal Records Center at Lee's Summit, Missouri, 5. On September 12, 2003, Interior and the National Archives and Records Administration ("NARA") signed a Memorandum of Understanding ("MOU") to consolidate all inactive Indian records in the possession of BIA and OST, and related Interior fiduciary ;[rust records at a new Federal Records Center, the Americari Indian Records Repository ("AIRR") in Lenexa, Kansas. 6, The AIRR was dedicated on May 4, 2004~ It is a state-of-the-art facility, built to archive standards. This underground record center maintains the documents in secure, climate-controlled environment, with controls for particulate matter and ultraviolet light. The AIRR has sufficient future capacity to hold Interior's American Indian records, as projected for the immediate future. 7. Access to the AIRR is strictly controlled. The stacks are closed to all but NARA

staff members. An advance appointment is required to do research at the AIRR, and everyone is required to sign an agreement to handle the documents in accordance with 2

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 19 of 46

proper procedures. A copy of the Research Agreement is attached as Exhibit 1. All visitors must also watch a training video which advises on those procedures, and also the criminal penalties for theft or destruction of federal records. 8. All research at the AIRR is conducted in monitored rooms. Each researcher

may work on only one box and one file at a time, to preserve the integrity of the boxes. 9. Because of the superior conditions for preserving records at the AIRR, Interior

has a strong policy of shipping inactive records to the AIRR as soon as possible. This policy was articulated in a May 5, 2005 memorandum from James Cason, Associate Deputy Secretary, and reiterated in memoranda circulated in 2()06 and 2007. Over 150,000 boxes of inactive BIA and OST records have been shipped to Lenexa, Kansas. .These boxes have been indexed, including 14,086 boxes of records from the BIA Navajo Region, 10. Inactive records are moved from BIA and OST locations in compliance with
L

"Guidance and Procedures" issued by OTR. A copy of The Guidance and Procedures is attached as Exhibit 3. These procedures include detailed instructions for completing. a Move Request which must be approved before records can be sent to the AIRR and how each box is to be labeled, inventoried, and prepared for shipment. 11. When boxes of inactive records are received at the Lenexa Annex, the shipment is verified for completeness. The boxes are then indexed and the data is input in the Box Index Search System ("BISS"), an electronic file level index which lists the contents of the boxes. The index provides information at the file level for general trust program records (i.e., the Office of Law Enforcement Services).

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 20 of 46

12. Fiduciary trust program records are indexed at the document level, meaning that every document in a file folder, or where there are no folders, every document in a box is indexed. Each fiduciary trust document is assigned its own standard identifiers, such as document type, date and account number if available. The BISS classifies 5754 specific types of documents in 30 idefitified document categories. 13. Boxes of inactive records are shipped from the originating offices by accession, which could consist of a shipment of only one box. The indexers open each box within an accession, record box and file title information, determine the document types within the file/folder, and categorize these documents within the 30 dQcument-type categories by date, when indexing trust records. All information on the outside of the box, typically including where it originated and its accession, is entered into the BISS as a part of the box title. The boxes undergo quality control as the indexers finish each box, and the Qontractor has a quality assurance process in place, Upon request, BISS training is provided to researchers at the AIRR. 14. OTR's contractor, Labat Andersen, provides assistance to the BIA and OST Offices in preparing inactive records for shipment to the AIRR. A move schedule is developed by OTR in consultation with the contractor. Several factors are considered in scheduling a site for shipping assistance, including readiness of the BIA]OST records in the field, any urgent needs to move documents at risk, and weather conditions as they relate to the working environment for the contractors that will be preparing the boxes for shipment. The BIA Navajo Region has communicated to OTR that it has approximately 2,000 boxes of inactive records to be transferred to the AIRR. Upon 4

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 21 of 46

availability of OTR contractor resources, we anticipate providing the BIA Navajo Regional staff with assistance to prepare the inactive records for shipment and arrange for delivery to the.AIRR. This includes: inventorying, packing, shrink-wrapping and completion of move request paperwork. Once a firm moving date had been established for the Navajo inactive records, in part based on contractor availability, the contractor will be sent to complete those actions. Timely shipment to the AIRR of inactive records such as those ourrentty in the BIA Navajo Region is an important priority of OTR. 15. Although the AIRR's principal purpose is not litigation-related, it provides a

superior environment for the production and examination of documents in that context as well. 16. In addition to providing a safe storage and research facility for inactive records

at the AIRR, OTR has taken steps to preserve and protect active records. 16 BIAM contains NARA-approved records retention schedules that call for the indefinite retention of all categories of Indian fiduciary trust records. Agency personnel are made well aware of this permanent institutional policy. 17. Additionally, in March 2007, ! received a notice sent out by Larry Jensen, the

Deputy Solicitor, advising of the new tribal trust litigation, including this case filed by the Navajo Nation. The notice was addressed to all employees and contractors at all Interior offices and bureaus that handle Indian trust documents, reminding them that all such records must be preserved, inciuding electronically stored information. 18. OTR conducts records training for BIA and tribal personnel on the proper management of Indian trust records. Over 100 different training events were held last 5

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 22 of 46

year, at OTR headquarters and varlou~ locations around th~ country. 8etw=~n October
m

2004 and May 2007, OTR trained 1,630 personnel from BIA and OST, and 586 tribal personnel. 156 records contacts were trained from the BIA Navajo Region. OTR trains now reeord~ contacts as they are Identified, and ~lso provides continuing training for those previously trained. An overview of OTR r~cords training, the table of contents from OTR's recocds training manual, and s topical agenda are attached as Exhibit 2. 19, OTR has adopted and Implemented policies and proQE~dures that arc tntend~d

to and succeed In preserving Indian trust records for fu{ure genemt3ons, and making them accessible in e.n organized way for all interested parties. These purposes wou]d be thwarted by the entry of the ordsr req0ested by plaintiff In this ease, Which would require BIA to maintain documents on the NavaJo reservation for up to five months, whgth~r or not OTR was r~acty to ~ssist.in moving them to the AIRR. L~aving thinactive records in the field Ine~ticns would place the records at greater risk Of destruction by acoicl~ntal causes. C.~

ETHEL j. AB~IT~~" Director " office of Trust Records

Executed this~_da7 of June, 2007

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 23 of 46

DECLARATION OF GLADYS COJOCARI EXHIBIT C

Case 1:06-cv-00945-FMA

United States Department of the Interior
OFFICE OF TIIE SOLICITOR Washin~on, D.C. 202~0

Document 41-2

Filed 12/04/2007

Page 24 of 46

l.lt'~% ~Z ~v 2 0
I

M~MOP~NDUM
To: Office of the Secretary Office of the Solicitor Office of the Special Trustee Office of Historical Trust A, ccounting Office of the Inspector General Office of Assistant Secretary - Indian Affairs Bureau of Indian Affairs Office of Assistant Secretary - Policy, Management, and Budget Office of Hearings and Appeals Office of Assistant Secretary - Land and Minerals Minerals Management Service Office of Surface Mining Bureau of Land Management Office of Assistant Secretary - Fish, Wildlife, and Parks Fish and Wildlife Service Office of Assistant Secretary - Water and Science Bui'eau of Reclamation " U.S. Geological Survey

From: Paul B. Smyth, Counselor to the Solicitor Subject: Compliance with Records Retention Orders ia Tribal Trust Cm~es: Swinomtsh Indian Tribal Community v. United Stares; Navq/o Nation v. United States; Round Valley Indian Tribes v. United States," ~'awnee Nation of Oklahoma v. United Slates; Raw Nation v. United States, Quechan v. United States In the last few months, two judges in the Court of Federal Claims, Judge Altegra and Judge Bradea, have entered Records Retention Orders ("RROs") in (he above cases. Copies of these, as well as of two cartier (2004) RROs, are attached for your reference) A/though the RROs differ in some specific provisions, each of(hem imposes a broad duty on all U.S. Government employees, contractors, a~d volunteers to preserve all "document% data, and tangible ~h.ings" in theix possession, custody or con~'ol containing information that is relevant to, " or may reasonably lead to the discovery of information relevant to, the subject matter involved in the pending litigation ("Relevant Information"). Each RRO also requires that mechanisms for ensuring compliance with the RRO be established, and[ that the Court be advised of the specific The 2007 RROs are in addition to those entered in 2004 by Judge Allega in Ji~arilla Apache Tribe v. United States and Pueblo ofLagunav. United States, which still remain in ffeeL To date, no other judges have entered R.ROs in any other tribal ~'ust eases.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 25 of 46

November 20, 2007 Page 2 features of those mechanisms. Please note that some of the RROs expressly providc for individual sanctions for non-compliance, tn addition ('.and as would be the-case even if these RROs had not been cnt~ed m these cases)~ ,Interior could be subject to adverse fiudiugs on file merits of the underlying litigation if the Court detsn-nines that may Relevant Information has been destroyed or lost. The staff attorneys assigned to these cases in the I~diatl Trust Litigation Office already have contacted the Bureau of Indian Affairs and/or the Oitiee of the Special Trustee, by phone and/or mail, to inform them of the requirements of their respective RROs. These attorneys also have asked BIA and/or OST to aasist them in id~tifying other U.S. Govci'nment repositories of Relevant Information for any of these tribes, with particular focus on any repositories that may exist within the D~partment of the Interior. Based on l~e information received to date, it appears likely that each of your bureaus and offices may have Relevant Information retatod to at least one of the tribes listed above. Conclusion: As a illst step in documenting Deparm~ent-wide efforts to put in place compliance measures that will" enable all bureaus and offices to dooument their respective ongoing efforts to ensure that Relevant Information is appropriately safeguarded, please provide me with the name and contact information of the person or persons you wish to designate as the PRO Compliance Coordinator for your bureau or office. As.some of these PROs wilI require compliance filings to be made with the Court as early as Friday, November 30, 2007, I ask that you provide me with this information no later than the close of business on Thursday, November 29, 2(107. Please direct any questions about this memorandum to Elisabeth Brandon, ITLO Tribal Trust Team Leader (at 202-208-4218).
i

Thank you very much for your prompt attention to this matter. Si/lcerely, r,,

Paul B. Smyth Counselor to the Solicitor Attachments

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 26 of 46

DECLARATION OF OMAR BRADLEY
NOVEMBER 30, 2007

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 27 of 46

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NAVAJO NATION, f.k.a. NAVAJO TRIBE OF INDIANS Plaintiff
V,

)

Case No. l:06-cv-00945-L

)

)
DeGlaration of Omar Bradley

) )
)

UNITED STATES OF AMERICA Defendant

)
)

) )

I, Omar Bradley, as the Bureau of Indian Affairs Regional Director of the Navajo Region, pursuant to 28 U.S.C. § 1746 do hereby declare and state: 1. As Regional Director, I am aware of my responsibility for overseeing the maintenance of documents related to the Navajo Nation for the Bureau of Indian Affairs ("BIA") Navajo Region. In February 2007, I designated Deborah Benally as liaison with the Solicitor's Office. Ms. Benally holds the position of Program Analyst for Trust Coordination in the Navajo Regional Office. Ms. Benally had previously worked for the Office of Trust Records (=OTR") and is familiar with the Department of Interior's policy, which requires that all Indian fiduciary irust records be preserved indefinitely, and forbids their destruction in any case. Additionally, two Records Liaisons, Lois Cunha and Claudeen Crank, are assigned by OTR to the Navajo Region to oo-ordinate and advise on records management policy.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 28 of 46

2. On April 24, 2007, Deputy Regional Director for Indian Services, Timothy DeAsis, issued a written directive to all Navajo Region Employees advising them of the lawsuit filed by the Navajo Nation, and directing them to preserve all potentially relevant material, including documents and electronically stored information ("Relevant Records"). A copy of the directive is attached as Exhibit A. At my direction, Ms. Benally distributed the notice by e-mail, attached as Exhibit B. 3. On September 12, 2007, I received a copy of this Court's Order concerning the retention of Relevant Records in this case from Ms. Cojocad of the Solicitor's Office. Consistent with those directions, Ms. Benally distributed the portions of the Order pertaining to records preservation to all BIA personnel in the Navajo Region on September 20, 2007. A copy of the e-mail notice is attached as Exhibit C. 4, In the last few months, I have had additional discussions with Ms. Cojocari concerning document preservation policies and procedures policies and procedures appropriate for the Navajo Regional Office and the other Navajo BIA Agencies. On November 5, 2007 I made the Order an agenda item at my regular staff meeting, for discussion and questions, At that time, I issued directions to my staff to avoid using voice mail as a means of communicating substantial information relevant to litigation or to trust matters, and if they do, to transcribe all such voice mail messages left for them. When technical problems appeared with our voice mail system on November 28, 2007, I used the opportunity to send a notice to all BIA Navajo Region personnel to transcribe trust-related e-mail. A copy of the notice is attached as Exhibit D.

2

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 29 of 46

5. I have also commenced the preparation of a Compliance Action Plan ("CAP") to be in the form of a chart assigning responsibility to individuals within NRO for carrying out designated tasks to ensure compliance with the Court's Order. These tasks are expected to include: a. Putting compliance with the Order on the agenda of every monthly Branch Chiefs' meeting, to provide an opportunity for discussion and questions; b. Sending monthly reminders through E-mail in a memo format to Program Managers to safeguard trust records, in accordance with Department of Interior policy; c. Issuing E-mail reminders of the terms of the Court's Order to all Navajo Region BIA personnel on a quarterly basis; d. Including compliance with the Order as an item in Records training for new staff members, and in refresher courses for staff members who work with trust records; and e. Sending bi-monthly reminders to all personnel who are custodians of records. 6. In addition to the foregoing, I will require that staff members be reminded to direct any questions about records to the Records Liaisons from OTR, and to promptly report any incidents of destruction of Relevant Records to me. I will further report any such incidents of destruction to Gladys Cojocari or her co-counsel at the Solicitor's Office, and will refer any questions regarding compliance with the Court's Order to them as well.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 30 of 46

I decJare under penalty of perjury that the foregoing is true and orregt to the beat of my knowlndg= and belief. Executed on Novembar ./~. 20o7. f j

OMAR BRADLEY

4

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 31 of 46

DECLARATION OF OMAR BRADLEY EXHIBIT A

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 32 of 46

United States Department of the Interior
BurQau elf Indian

All=Ira

Navajo Region P. O. Box 1060 Gallup, New Mexico 87305

Memorandum
To

ALL NAVAJO REGION EMPLOYEES ,~,p~ ,~, R~-~fo 'l Oireotor, BIA N~vajo Regio~P'Litigation Hold; Preservation of IM~Srmation in Tribal Trust Case for the Navalo Nation vLUnited States

From: Subject:

As you are aware, the Navajo N=tion recently filed their complaint against the United States, claiming a breach of trust and mismanagement of tdbal resources. Consequently, the Department of Intedor Solicitor's Office Issued ¯ memo dated March 12, 2007, (See attached) emphasizing the importance for individual employees, inoluding contractor employees to preserve matedal that iS or may be relevant to this IltlgaUon. All DO] employees are directed to preserve materiaJls or information which consists of "all documents, data, and tangible things" in the possession, custody or control of program offices thst are or may be relevant to this litigation, Tribal trust assets am identified as the management and ao¢ounting of tdbal resources and funds held in trust by the Department, As such, information or materials that is or may be relevant to this case Includes, without limitation, anything reflecting, referring or relating to: 1, any asset, such as funds, land, minerals, forestry, s=nd and gravel, or other resources, that is or at any time has been, held in trust by the united States or its agents for Tdb~s or Indian groups ('trust asset'); 2, policies, procedures, guidelines, or correspolndenoe relating to any aspect of the management or administration of trust assets; 3. proceeds, Interest, or income from trust assets; or disbursement, disbursement. distribution, disposition or transfer of any trust a~Gets; 4. reports, appraisals, reconciliations, or evaluations of trust assets; and 5. informatiorl that serves to identify, locate, or link any relevant information, such as file inventories, file foldem, and indioes. information include electronically stored Information (ESI), bncludlng, but not limited to: E-mail (including attachments); Instant messages; Elaotronio calendam, tasks lists, or other organizational aids; Word processing documents; Spreadsheets; I;~tabases; Audl~ and video recoKtings; and Voicemail. ESI may be stored on network systems and servers, local hard drives, laptops, storage media (inoluding flash drives, diskettes,

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 33 of 46

DECLARATION OF OMAR BRADLEY EXHIBIT B

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 34 of 46

NAVAJO.REGION ALL EMPI.~YEES LoI~ Cunhe/OST/OS/OOl@OOI, Claudeen Grank/OST/~OI@DOI, Alley Dav[cUOST/OS/DOI@DOI Litigstlon Hold: Preeervatlon on Tribal ItffomlatJon Re: NavnJo Nstion v. United State= Supewisors, please provide e hsrd Copy of this email and |t~s attgchments to those individuals within your programs mat Oo not have acr~'ess to Lotus Notes,
b

Memo to ~np~m Llttgattct Hdid.pdf Lli~tion H0[d.pdf Deborah S. Benally BIA Novaio Region Fone 505.863,B394 Facsimile 505.863.8324

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 35 of 46

DECLARATION OF OMAR BRADLEY EXHIBIT C

Case 1:06-cv-00945-FMA
.~.~': Deborah BenBIlylALBUQUI-'RQUBJBIA ~ "IDOl J 09/20/2007 02:30 PM

Document 41-2
To

Filed 12/04/2007

Page 36 of 46

(I. ~"

~]

bcc 8ubJe=t Prc~ewation on Tribal Infonln~tlon .Re: NeVBIo Nation v. U nitedl sm~

NAVAJO_REQION.ALL EMPLOYEES LQis Cunh~rOST/OS/DOI@DOI. ClaudQwn Cmn~POErlOS/DOI@DOI, Alley David/OST/OS/DOl@l:X::)l

Supervisors, please provide a hard copy Of ~ls REMINDER and it's attachments to those individuals within your" programs that do not have access to Lotus Notes.
Please be informed that Judge Allegro of the Courl of Federal Claim-- issued a Coult Order on September 10, 2007 regz~rding the Navajo Nation w, UnffedStates, which outlines the following; Tile mnva and inspection apply In Relevant Records that late Inactive ;Is of the date of this grd~r. Referent Re~.orcls are those that contain information relating to the issues ]n the litigation, generally the trust funds and trust prope~ies of the Navajo ['r'dbe] Nation, and records that might lead to the dlscOVB'y of that Information. The movem~t of Ra/av~nt Records locate#at Chln/e, Tuba City, Shiprock, or Crownpoint, whether ~here, gr at the Gam¢~-o warehouse, a~ other mWuall¥ agreed upon Ioca~f~s; al~o n~ds at O TR, ~T, and L TRO In Albuquerque, NM to any o#~r placw than the AIRR is sub]act to the move plan requirement of Court Order, This O~def superaedea all eX/wting poECi~ and procedures, direcSlv~ an~Vor guidan~ thence Indian Trust Assets refers to particular lands, nal]Jral resources, moni~ks, or other assets held in trust at a p=articular time by the Federal Government foi" an Indian trib(~, Alaska natives, or Indian individuals, Some lands or other natural resources may be owned bye tribe or Indian individual, subject to restraints on alienation imposed by F~deral law. For the purposes of this definition, ITA irP.Jude= lands or other neural resOurCes. General Obligation to Pr~: "During the pendency oil this litigation or until further order of the Cou~ the defendant and its departr~ents, agencies, employees, agents, and contractors must take reasonable steps to preserve every document, datum or tangible thing In its possession, custody or: control ontaining information that is relevant to, or is reasonalNy calculated to lead to the discovery of admissible evidence relevant to, the subject matter involved in the pending litigation ('Relevant Racer(Is'], Plaintiffs Is remlr¢l~l ~l~a¢ it also ha~ a similar outy to preserve evidence relevant to this case" Preserva~on is to be interpreted broadly to accomplish th~ goal of maintaining the integrity of all documents, dam, and tangible things reasonably anticipated to be =ubje¢t to discovery under RCFC 26, 45, and 56(e) in this ~-tio.. Preservation includes taking reasonable steps m pre~nt partial or full des=ruction, aRemtion, testina, deletiorLshr~ldino, inc~nem6nn, wil~inq, relocation, migration, matt, m~tion, neQli~_ent handling, or Intentional rnfshandllng of any documents, cla~ or tangible thinos, if such action would make that material incomplete or in==cc~csibie. Sanction~ Failure to comply with this order may lead to the imposition of s~nGtions. S~ePueblo of Laguna, 60 Fed CI, at 135-137; Unff~d Medical Supply Co., v. United State~ 77 Fed CI. 257 (2007). If you have any questions regar(Ilng the subject mawr, please do not hesitate to conta¢l; your OTR Regional Records liaisons at (505) 863-82401B422 or myself at your convenience. Thank you! Deborah S, Banally BIA Navajo Region Forte 505.863.8394 Facsimile 505.863,8324 Forwarded by Deboratt 8onally/ALBUQUERQUE/BIAIDOI on 00/20/2007 01;36 PM

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 37 of 46
Page

and CD-ROMs), as well as PDAs (such as Blackberries) and cell phones, Personal home computers, cell phones, and other devices uses for work may also contain relevant or potentially relevant information that must be identified and preserved. The tlmeframe of preserving and safeguarding information relevant to this ¢asu has a yet-to-be-deterrn;ned beginning date to the presenll; therefore, any Information created in the future must also be preserved. In general, in no case shall BIA NRO ~mp_loveo$ delete nor destroy any relav=mtJnfqr~etion related t0 the Navaio Nation v. United States. Supervisors are directed to provide a copy of this memorandum to each employee within their progn~m offices as it is Imperative to ensure that all BIA NRO employees am informed that relevant litigation records are preserved and safeguarded, For technical asai=tanoe regarding preserving recQrrds, please contact Lois Gurll~a or Claudeen Crank, OTR Regional Records Liaisons for the Navajo Region at (505) 8638240/8422. If you have questions pertaining to the IPJgation, please contact Deborah S. Banally at (505) 863-6394. Thank you.

Attachment

OTR Regional Records Liaisons, BIA Nava][o Region Program Analyst (Trust Coordination), BIA Navajo Region

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 38 of 46

DECLARATION OF OMAR BRADLEY EXHIBIT D

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 39 of 46

Omar Bn=dley/ALBUQU_PRQUERilA /DOI 11/28/2007 04:47 PM

To NAVAJO.REGION_ALL EMPLOYEES ~c bcc Subject Re: Help - Messages need to be deletedPl

Folks- Those of you that have vOi~ mail need to be considerate of others and manage your voi<~ mail. As a matter of protocol, any voice malls containing Information relative to trust matters need to be tmn~cril0ed and kept as part of your electronic record. ¯
Omar Bradley. Regional Director Navajo Region (505) 863-8314 (50S) 870-4,791 (cell) Vivian Yazza/ALB UQUERQU E/BINDOI vivlan Yazza/AL.BUQUERQUF_JBIA/ DOI 11/28J2007 04:32 PM

To (:)mar Bmdley/ALBUQUERQUE/BIAJDOI@BIA Subject Help ¯ Messages need to be deleted

Hi Omar, My telphone will not take m=saages as of this PM. I asked Perry Schanefelt about problem and he said thaL Larry is on leave for a couple of days, Olrlers have called with $lme problem. It appears that some empleyaas need tD delete their me=sages in order to free up message center.

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 40 of 46

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 41 of 46

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 42 of 46

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 43 of 46

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 44 of 46

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 45 of 46

Case 1:06-cv-00945-FMA

Document 41-2

Filed 12/04/2007

Page 46 of 46