Free Joint Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SAMISH INDIAN NATION, a federally recognized Indian tribe, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 02-1383L (Chief Judge Edward J. Damich)

Parties' Joint Status Report

Pursuant to this Court's Order of November 27,2006, the parties respecthlly submit this joint status report to advise the Court of their respective positions on the discovery disputes that remain and their recommendations on further proceedings.

Plaintiffs Position

While the parties have not resolved their disputes regarding discovery, the Plaintiff has a proposal on how to move forward with proceedings in the case

Following the Court's opinion and order of July 21,2006 authorizing Plaintiff to proceed with discovery, Plaintiff served its discovery request on Defendant on July 26,2006. Plaintiffs discovery consisted of requests for admission, interrogatories and requests for production of

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documents. The interrogatories and requests for production of documents applied only to the extent that Defendant denied a request for admission and called upon Defendant to provide information explaining the basis for the denial.

On October 19 and November 1, Defendant served its responses to those discovery requests. Defendant's responses consist of the interposition of numerous objections to every one of Plaintiffs requests.' A copy of Defendant's responses is Exhibit 1. Defendant's approach to Plaintiffs discovery is best illustrated by Defendant's decision to dispute or profess ignorance of the meaning of the most commonly-used words and phases contained in each discovery request. For example, Defendant refused to admit that the lists of Indian tribes it periodically publishes in the Federal Register identify the tribes that were federally-recognized at the time of publication, claiming confusion about the definition of the terms "tribe" and "Indian tribe" and asserting that other terms,such as "lists published" and "accurately identify" are so "vague and ambiguous" that Defendant could not respond. See Exhibit 1, Defendant's Combined Objections and Responses to Plaintiffs Discovery Requests at 10-11. Defendant made similar objections to all of the other discovery requests, claiming an inability to understand the meaning of words and phrases including "some amount," "federal funds," "federal assistance," and "a11ocation." See e.g., id. at 11, 13, 14,21, 36-37. Defendant made no effort to seek to respond to the requests for

'While Defendant did produce a box of records, only a portion of the documents produced were responsive to Plaintiffs discovery. Plaintiff believes that the Defendant has other records which are responsive to Plaintiffs discovery requests, and which can be accessed without undue burden. However, as described below, while Plaintiff proposed that the parties engage in informal discussions with government agency staff for purposes of identifying such additional records, Defendant declined to have such discussions.

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admission in a manner that would result in an admission of some part of the request or a clarification of its understanding of the terms in a manner that would serve to narrow any factual issue.

Defendant's other objections are similar in approach. For example, Defendant objected to many discovery requests asserting that the information sought was not relevant - despite this Court' opinion and order of July 21,2006 which specifically considered the discovery being requested and found it to be relevant to determining whether the United States through "the responsible agencies . . . understood that they were required by statutes or regulations at issue to pay at least some money to federally-recognized tribes." Opinion at 6. As this Court stated, focusing in particular on Tribal Priority Allocations (TPA) administered by the Bureau of Indian Affairs - discovery on these issues was "strongly 'relevant"' to Plaintiffs claims. Id.

By letter dated November 13,2006, Plaintiff advised Defendant of its views on Defendant's objections. Exhibit 2. In that letter and by a telephone conference on November 15, Plaintiff proposed to Defendant that the parties undertake to try and resolve those discovery disputes informally. Specifically Plaintiff proposed that the parties focus on discovery relating to only two of the programs that serve Indian tribes - (1) Tribal Priority Allocations (TPA) administered by the Bureau of Indian Affairs and (2) funding provided through the Indian Health Service (IHS) - and defer discovery relating to other federal programs. Plaintiff also proposed that the Plaintiffs attorneys meet with the Government's attorneys and officials from the BIA and IHS familiar with these programs. This discussion was proposed by plaintiff for two

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reasons. First, plaintiff wanted to clarify any questions or confusion defendant agencies might have about what information and documents would be responsive to plaintiffs discovery requests. Second, plaintiff wanted to explore whether federal employees or officials could stipulate to some basic facts relevant to plaintiffs claims and to the governments pending dismissal motion.

Although counsel for Defendant, on November 15 and in the Parties' Joint Report of November 20, expressed a willingness to explore this proposal and an intent to confer with her client, Plaintiff heard nothing substantive from Defendant for another month. On December 15, Plaintiff sent a letter to counsel for Defendant asking about the status of Defendant's consideration of the matter. Exhibit 3. On December 19, Defendant responded by letter stating that the Defendant no longer believed that meetings with agency officials "would be productive." Exhibit 4. Instead, Defendant announced its intent to determine unilaterally what additional information about TPA and IHS funding would be provided to Plaintiff Id. By letters dated December 20 and December 28 Defendant sent to Plaintiff some additional documents regarding TPA - all of which Plaintiff had already obtained through its own research efforts which Plaintiff initiated after receiving Defendant's numerous objections to Plaintiffs discovery. On Friday evening, January 5,2007, Defendant delivered to Plaintiff: 1) supplemental responses to Plaintiffs discovery requests relating to TPA and IHS funding which largely reiterate Defendant's objections to those discovery requests; and 2) cd-roms which Defendant states contain additional documents regarding TPA, but of most of which Plaintiff has not been able to review because of the format in which the documents were recorded. Counsel are now working

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to try and resolve that data problem.

Given Defendant's unwillingness to meet and confer about the discovery disputes, Plaintiff believes that further informal efforts to resolve those disputes will not be productive.

Plaintiff further believes that Defendant's objections to Plaintiffs discovery requests are without merit and contrary to both the text and intent of the rules governing discovery, and this Court's discovery Order. Without waiving Plaintiffs objections, and in the interests of seeking to advance resolution of some of the issues in this case, Plaintiff is willing to respond to the Government's motion to dismiss regarding TPA, relying on its own submissions and the limited information the government has grudgingly produced in discovery to date. Accordingly, Plaintiff proposes that the Court set a briefing schedule to address the Government's motion to dismiss as it relates only to TPA, and defer briefing on the other programs covered by the Government's motion. Plaintiff recommends that Plaintiffs response to the Defendant's motion to dismiss on claims relating to TPA be due within thirty days of the Court's order, with Defendant's reply due fourteen days thereafter.

Plaintiff also intends to file a motion to compel discovery, but would urge the Court to defer proceedings on that motion. A motion to compel would further serve to preserve Plaintiffs right to recover costs and fees under RUSCFC 37(c)(2) to the extent Defendant refused to admit facts which Plaintiff ultimately proves. Plaintiff proposes to file its motion to compel within sixty days from the date of the Court's order.

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Defendant's Position This Court authorized Plaintiff to take limited discovery. Defendant United States has at all times carried out its responsibility to respond to Plaintiffs discovery requests in good faith. Plaintiff now unjustifiably belittles the United States' efforts, and Plaintiffs proposal for going forward would only further delay ultimate resolution of this case.

This Court allowed Plaintiff to take limited discovery on certain programs that Plaintiff alleges are money-mandating. In response to Plaintiffs request for discovery, the United States answered Plaintiffs requests to the best of its ability and provided as much specific, relevant information as it could in light of the confusing nature of Plaintiffs requests. See, e.g., Exh. 1 (providing over 48 pages of information as well as numerous documents) at 9 (noting that "Commodity Food Program" Plaintiffs referred to does not exist, but interpreting the request to pertain to "Food Distribution Program on Indian Reservations" and answering on that basis).

While the United States preserved its objections to certain aspects of Plaintiffs request, the United States also answered the discovery requests to the best of its ability, in spite of its objections. See, e.g., Exh. 1 at 18-2 1 (providing Plaintiff with published lists despite objections that Plaintiff misconstrued lists), 26-27 (providing documents despite objections), 32-36 (same). Nowhere in the United States' responses did the government refuse to provide information because of its objections to the request, except where a greater effort would require significant time and resources, making the request unduly burdensome. See, e.g., Exh. 1 at 14 (answering request for admission despite objections); 20 (providing lists despite objection); 26 (producing

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Department of Health and Human Services' reports to Congress that describe how Department awarded funds to tribes, despite objections).

In some cases, Defendant simply did not have information sufficient to answer Plaintiffs request for admission. In these cases, Defendant explained that it made a reasonable inquiry and the information known or readily obtainable was not sufficient to allow Defendant to admit or deny the request. In response to further inquiry from Plaintiff, Defendant supplemented its response (in the case of IHS) to describe more thoroughly Defendant's inquiry, or located and provided additional documentation (in the case of the BIA).

After the United States provided its initial objections and responses, it twice supplemented its responses and has provided a number of additional documents to Plaintiff. After the United States' initial responses, Plaintiff narrowed its discovery requests to focus on funding provided by (1) the BIA through the TPA program and (2) the IHS. After this narrowing and pursuant to communications with Plaintiff, the United States provided additional documents and supplemented its responses. In particular, Plaintiffs communication about the TPA program clarified certain issues for the BIA and the BIA therefore was better able to provide a response to Plaintiffs request.

In terms of Plaintiffs request for a meeting, the United States explored this possibility with the two agencies Plaintiff requested (the BIA and the IHS) and the agencies determined such meetings would not be productive. These agencies produced all information they had available

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and explained why, particularly in the case of IHS, the documents Plaintiff requested do not exist or would take significant time and energy to compile and be an undue burden on the agency. In addition, the agencies perceived Plaintiffs attempts to force meetings between Plaintiff and agency officials as being beyond the scope of the limited discovery the Court allowed.

Notably, while Plaintiff has stated its belief that additional responsive documents exist, Plaintiff has not named or described such documents or otherwise made it possible for the United States to address Plaintiffs statement with any specificity.

The United States' position is that Plaintiffs proposal that it respond to the United States' motion to dismiss based solely on the TPA program would delay further resolution of this case. Plaintiffs complaint raises claims based on at least fourteen programs. See PI.S Report on

Discovery at 7. Plaintiff sought, and this Court allowed, Plaintiff to take discovery based upon
some, but not all, of the programs alleged in Plaintiffs complaint. In the course of the discovery proceedings, Plaintiff informed Defendant that it wished to focus on discovery related to the TPA program and the IHS. Now Plaintiff proposes to go forward with briefing on only the TPA program.

The United States moved to dismiss all of Plaintiffs claims. It is the United States' position that this Court can resolve all of Plaintiffs claims at this point, without any further

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dis~overy.~ Plaintiffs approach leaves a wide variety of issues unresolved, with no plan for their resolution. Notably, they do not state that if the United States prevails on the motion to dismiss with regard to the TPA program, Plaintiff will dismiss the rest of its case. Accordingly, resolution of the motion to dismiss based solely on TPA may have absolutely no effect on the rest of the case.

Further, Plaintiff did not seek discovery with regard to some programs (for example, the Housing Improvement Act and the Block Grant programs), and presumably should be able to respond to the motion to dismiss on those programs. Likewise, Plaintiff should be able to respond to the motion to dismiss on the programs it informed Defendant it would not focus on in the course of discovery. This is especially true in light of the Court's determination on discovery, which, as Plaintiff notes, focused strongly on Plaintiffs TPA claim. Plaintiff now apparently believes it has information sufficient to move forward on the TPA claim. Because the Court granted Plaintiff limited discovery with an emphasis on the TPA program, the case would be best resolved by addressing all issues now instead of by piecemealing the United States' motion to dismiss.

Allowing Plaintiff to break apart its case and proceed on a piecemeal basis in response to the United States' motion to dismiss significantly disadvantages the United States because 2Asjust one example, no further discovery should be permitted on the Indian Health Service programs because the statutes under which the IHS distributes its funding -the Snyder Act, the Indian Health Care Improvement Act, and the Indian Self-Determination Act -have already been held not to be money-mandating. See Lincoln v. Vigil, 508 U.S. 182, 185, 192 (1993); Samish Indian Nation v. United States, 41 9 F.3d 1355, 1364 (2005).

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Plaintiff would be able to tailor each portion of its case to the Court's previous rulings. Further, because (as demonstrated in the United States' motion to dismiss) the legal issues with regard to all of Plaintiffs claims overlap to a great extent, Plaintiffs piecemealing suggestion would result in significantly more effort and expense by both the parties and the Court. See, e.g., Marriott
PLP Corp. v. Tuschman, 904 F.Supp. 461,468 n7 (D. Md. 1995) (noting "the perils of deciding

motions to dismiss piecemeal").

Accordingly, having complied with Plaintiffs discovery requests to the best of its ability, the United States requests that the Court order Plaintiff to respond to the United States' motion to dismiss the case.

Dated: January 8,2007 Respectfully submitted,

& 1-*b w A &?4 ,* E j.
Craig borsay, ~ s q . Attorney at Law flflflc b /UK 1 S.W. Columbia, Suite 440 Portland, Oregon 97258 Telephone: (503) 790-9060 Facsimile: (503) 790-9068

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Devon Lehman McCune, b United States Department of J stice Natural Resources Section b,I & L, c 1961 Stout Street, gthFloor Denver CO 80294 Telephone: (303) 844-1487 Facsimile: (303) 844-1350

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Counsel of Record for Plaintiff Samish Indian Nation

Counsel of Record for Defendant

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Of Counsel to the Samish Indian Nation:
William R. Perry, Esq. Anne D. Noto, Esq. Sonosky, Chambers, Sachse, Endreson & Perry, LLP 1425 K Street, N.W. Suite 600 Washington, D.C. 20005 Telephone: (202) 682-0240 Facsimile: (202) 682-0249

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SAMISH INDIAN NATION, a federally recognized Indian tribe, Plaintiff,

v.
THE UNITED STATES OF AMERICA, Defendant.

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Case No. 02-1383L (Chief Judge Edward J. Damich)

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EXHIBIT 1 TO PARTIES' JOINT STATUS REPORT

January 8,2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SAMISH INDIAN NATION, a federally recognized tribe, Plaintiff, v. THE UNITED STATES OF AMERICA Defendant.
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Case No. 02-1383L Chief Judge Edward J. Damich

DEFENDANT'S COMBINED OBJECTIONS AND RESPONSES TO PLAINTIFF SAMISH INDIAN NATION'S FIRST SET OF REQUESTS FOR ADMISSIONS AND FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to Rules 26, 33, 34, and 36 of the Rules of the United States Court of Federal Claims ("RCFC"), Defendant United States hereby presents a combined responses to Plaintiff Samish Indian Nation's First Set of Requests for Admissions and Plaintiff Samish Indian Nation's First Set of Interrogatories and Request for Production of Documents, dated July 26,

STATEMENT OF NON-WAIVER AND RESERVATION OF RIGHTS By providing answers to Plaintiffs Discovery Requests, Defendant is not waiving and is hereby expressly reserving: (a) all questions regarding competence, relevance, materiality, privilege and admissibility of the responses, and the subject matter thereof, as evidence for any

&onSeptember 18, 2006, this Court granted Defendant's motion for an extension of time in which to respond to Plaintiffs discovery requests.

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purpose in any proceeding in this action; and (b) the right to object to the use of any response, or the subject matter thereof, on any ground and in any proceeding in this action. Defendant's answers to Plaintiffs Discovery Requests are complete and accurate to the best of the knowledge and belief of the persons who worked on this response. Nevertheless, Defendant reserves the right to supplement these answers if additional information is later discovered or identified. The following objections apply to each discovery request and are to be read as forming a part of the response to each of the individual requests.

GENERAL OBJECTIONS
1. Defendant objects to the requests to the extent that they seek information on

statutes and programs already dismissed by this Court. 2. Defendant objects to the requests to the extent that they seek information that is

beyond the scope of litigation and not reasonably calculated to lead to the discovery of relevant evidence.
3.

Defendant objects to the requests as unduly burdensome and oppressive to the

extent that they seek to require Defendant to search for and identi@ documents, particularly documents that have been archived or destroyed, according to criteria Defendant and its component agencies and departments do not use in maintaining or organizing files or records for storage or retrieval.
4.

Defendant objects to requests seeking identification of "all" records or "any and

all documents," "indicating or relating to" a particular topic or document on the grounds that such requests are overbroad, vague, ambiguous, and impose an undue burden and expense.

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5.

Defendant objects to all the descriptive terms that, due to being under-defined, are

open to multiple interpretations, vague and/or too broad, and do not provide a reasonable and objective measure by which: (a) to ascertain the scope of and/or subject matters encompassed by, a Request for Admission; and/or (b) to discern compliance with the response to a Request for Admission or a sub-part therein.
6.

Defendant objects to Plaintiffs definitions of "federally-recognized Tribe,"

"Indian Tribes," and "Tribes" as provided in the instructions to the Discovery Requests and used in the request for admissions and interrogatories. Plaintiff attempts to exclude "tribes, villages, corporations, or other groups of Native people located within the State of Alaska." Plaintiffs Second Amended Complaint did not distinguish the geographic location of any "federallyrecognized Tribes," "Indian Tribes," and/or "Tribes" (i.e.,differentiating Indian Tribes located in the Lower 48 States, Contiguous 48 states or the Continental United States from those in the State of Alaska). Defendant also objects to Plaintiffs definitions because they are in conflict with the discovery requests and some of the attachments Plaintiff provided. In particular, they conflict with the first request for admissions, which refers to a list that would include all federally-recognized Tribes, including those in Alaska. In addition, Defendant's records do not distinguish between federally-recognized Tribes in Alaska as opposed to other geographic localities. Defendant, therefore, will make objections and provide answers as if the Discovery Requests are requesting information as to all "federally-recognized Tribes," "Indian Tribes," and/or "Tribes" regardless of their geographic location. 7. Defendant objects to the requests as oppressive or unduly burdensome to the

extent that they require Defendant to compile, summarize, research, or otherwise analyze

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voluminous historical information.

8.

The answers contained in this response are made subject to all objections as to

competence, relevance, materiality, and admissibility. These answers are subject to all objections that would require the exclusion of any statement, material, or information herein provided if such requests were asked of, or any statement, material, or information provided were made by witnesses present and testifying in court. All such objections are reserved and may be interposed at any time.

9.

The production of a document shall not constitute or be interpreted as an express

or implied admission as to the truth of the contents contained in that document. This is especially the case with respect to documents prepared by entities other than a federal agency, including State, local, and tribal governmental entities. Rather, documents are produced as they exist in agency files.

10.

Defendant objects to the requests to the extent that they seek contentions and

information that Defendant has not yet had the opportunity to develop fully, and, to the extent research into some of the issues is not yet complete, all responses made herein are to be considered preliminary in nature and subject to revision as Defendant has the opportunity to conduct further research and discovery. Defendant will make a good faith effort to respond to all of Plaintiffs discovery requests based on the discoverable information presently available to it with the understanding that its responses are not necessarily complete and further research may require revision or supplementation of some responses in accordance with applicable sections of the RCFC. 11. Defendant objects to the definitions and instructions to the extent that they require

overly broad discovery responses beyond that required by the RCFC. Although in some cases, as a matter of comity and cooperation, Defendant has or will volunteer information which may go beyond that strictly required under those rules, by doing so Defendant does not waive this

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objection. Defendant's responses are provided in accordance with the RCFC irrespective of any definitions and instructions that may accompany the Discovery Requests. 12. Defendant generally objects to Plaintiffs Discovery Requests to the extent that

they seek information protected by the attorney-client privilege, the work-product doctrine, the deliberative process privilege, and any other applicable privileges recognized in the RCFC. This objection is intended to apply to the requests that seek such information and will not be repeated specificaiiy for each request to which it appiies. Defendant, to the extent appiicabie and possible, has construed each request as requesting only information andlor documents not subject to any applicable protection. 13. No incidental or implied admissions are intended. The fact that Defendant has

responded to Plaintiffs discovery requests, or part thereof, should not be taken as an admission that it accepts the discovery requests or that the response or objection thereto constitutes admissible evidence. Similarly, the fact that Defendant has responded to all or part of a request is not intended to and shall not be construed to be a waiver of all or part of any objection to other requests. Defendant's answer(s) to any request(s) herein do not constitute a waiver of its right to object to future additional or supplemental requests regarding the same or similar matters. Should Defendant mistakenly produce otherwise privileged or protected information, it does not thereby waive the privileges or protections applicable to that information. 14. Defendant objects to Plaintiffs requests for discovery on the ground that the

requests misconstrue the appropriations Congress makes available to the Department of the Interior ("Interior") to operate Indian programs, including the Snyder Act of November 2, 1921 (25 U.S.C.

5

13), the Indian Self-Determination and Education Assistance Act of 1975 ("ISDA")

(25 U.S.C. 5 450 et seq.), as amended by the Education Amendments of 1978 (25 U.S.C.

$5

2001-2019), and the Tribally Controlled Schools Act of 1998 ("TCSA") (25 U.S.C. 5 2501 et seq.). As a result, the requests ultimately require the production of information that is not

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relevant to the case and is not reasonably calculated to lead to admissible evidence. Interior receives, allocates, and spends its appropriated funds under the authority of the Snyder Act, ISDA, and the TCSA. The Snyder Act authorizes the expenditure of appropriations for the "benefit, care, and assistance of the Indians throughout the United States." 25 U.S.C. 5 13. The ISDA and TCSA provide further explanation of these purposes and authorize Interior to carry out programs consistent with those functions. The ISDA, for instance, authorizes the Secretary of the interior to contract with Indian Tribes to transfer the operation of programs for Indians to the Indian Tribes, in promotion of self-determination. 25 U.S.C. 5 450f. Interior receives a single lump-sum appropriation for the operation of Indian programs. See Dep't of the Interior, Environment, and Related Agencies Appropriations Act of 2006, Pub.

L. 109-54, 119 Stat. 499 (HR 236 1). From this appropriation, Interior administers the direct
operation of Indian programs and its functions under the Snyder Act, as well as the selfdetermination contracts under ISDA and the Tribal Priority Allocations ("TPA"). See The U.S. Dep't of the Interior Budget Justifications and Performance Information Fiscal Year 2006, Bureau of Indian Affairs, BIA-SUM-1 - BIA-SUM-37, BIA-OIP-1 -BIA-OIP-9, BIA-TPA-1 BIA-TPA-58. The term TPA refers to an budgetary tool that the Bureau of Indian Affairs uses to categorize and describe how it plans to allocate certain funds from the lump-sum appropriation to provide Indian Tribes for the operation of Indian programs. The Snyder Act and ISDA are the authorities for transferring the TPA designated funds to the Indian Tribes. The funding vehicle the Bureau of Indian Affairs often uses to transfer TPA funds to Indian Tribes is ISDA contracts. Despite the Court's dismissal of all claims under both the Snyder Act and ISDA on the ground that such claims are not money-mandating, the nature of Interior's lump-sum appropriations will require the agency to answer Plaintiffs request for discovery in a way that encompasses the dismissed claims. Samish Indian Nation v. United States, 58 Fed. C1. 114, 11819, 120 n. 12 (2003), afd, 4 19 F.3d 1355 (2005). In this regard, much of the information

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encompassed in the request is no longer relevant to the remaining claim and therefore is not reasonably calculated to lead to admissible evidence. Defendant objects to the requests on this ground. 15. Defendant objects to Plaintiffs requests for discovery on the ground that the

requests misconstrue Indian Health Service ("IHS") appropriations under the Indian Health Care Improvement Act ("IHCIA"), 25 U.S.C.

9 1601 et seq., and as a result, ultimately require

production of information no ionger reievant in the case and not reasonabiy caicuiated to lead to admissible evidence. IHS receives, allocates, and spends its appropriated funds under the authority of both the Snyder Act, 25 U.S.C. § 13, and IHCIA. The Snyder Act authorizes the expenditure of appropriations for the "relief of distress and conservation of health" of American Indians, and IHCIA provides further explanation of these purposes and authorizes IHS to carry out programs consistent with those functions. In addition to these two statutes, the ISDA authorizes IHS to contract with Tribes to transfer the operation of health care programs to the Tribes, in promotion of self-determination. IHS receives two annual lump-sum appropriations, fiom which it administers the direct care operations and its functions under IHCIA and the Snyder Act, as well as the selfdetermination contracts under ISDA. The first lump-sum appropriation, for "Indian Health Services," provides funding for the delivery of health care services to American Indians and Alaska native^.^ The second lump-sum appropriation, for "Indian Health Facilities," provides funds for construction and maintenance of primary care and sanitation facilities.2 Due to both the nature of its authority under the Snyder Act and IHCIA and the lump-sum appropriations it receives, IHS cannot differentiate funds expended under IHCIA fiom those expended under the

a see, e.g., Dep't of the Interior, Environment, and Related Agencies Appropriations Act of 2006, Pub.L. 109-54, 119 Stat. 499 (HR 2361).
"d.

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Snyder Act. Despite the Court's dismissal of all claims under both the Snyder Act and ISDA on the ground that such claims are not money-mandating,$ the nature of IHS' lump-sum appropriations will require it to answer Plaintiffs request for discovery in a way that encompasses the dismissed claims. In this regard, much of the information encompassed in the request is no longer relevant to the remaining claim. IHS objects to the requests on this ground. 16. Defendant further objects to Plaintiffs requests for discovery on the ground that

tine misconstruai of IHS' appropriations under tine IHCIA incorrectiy assumes IHS administers its appropriations for IHCIA programs on a strictly Tribe-by-Tribe or per capita basis to all federally recognized Tribes and their members. Instead, IHS utilizes many different funding methodologies to administer the numerous programs it operates in furtherance of its statutory functions under the Snyder Act and IHCIA. For example, the Division of Grants Operations and Grants Policy obligates funds for grantees, who use those funds to carry out specified, approved activities. These grants are usually awarded on a competitive basis, a process that by its very nature results in fewer than all Tribes receiving a grant, and therefore, the funds are not allocated per capita to each federally recognized Tribe. Similarly, the Urban Indian Health Program ("UIHP") consists of programs in select urban areas nationwide, and these programs benefit individual American Indians who may not otherwise be eligible for direct services from IHS or who reside outside of any IHS or Tribal service area. Thus, due to the nature of the UIHP, an Urban program may not be serving American Indians from all federally recognized Tribes, but instead, would be serving only those individual American Indians with access to the programs. As a final example, the Division of Health Professions Support administers programs through which IHS provides scholarship and loan repayment awards to health professionals in

varnish Indian Nation v. United States, 58 Fed. C1. 114, 118-19, 120 n.12 (2003), a f l d Samish Indian Nation v. United States, 4 19 F.3d 1355 (2005).

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exchange for their agreement to serve with IHS for a specified period of time. Both programs are competitive, and applicants are accepted into the programs based on their individual applications and their discipline. The benefits of the programs are directed toward the health professions and Indian health programs, including IHS, Tribal, and Urban programs, rather than specific Tribes. Although a Tribe or its members may receive an indirect benefit when they are treated by a participating healthcare provider, the awards are not granted to Tribes because of their status as Tribes. Therefore, Defendant objects to the requests on the ground that the requests mischaracterize the nature of IHS' appropriations, which are administered through numerous programs, often on a basis other than a per capita allotment to each federally recognized Tribe. The requests, therefore, are not reasonably calculated or likely to lead to admissible evidence. 17. Defendant objects to Plaintiffs discovery requests to the extent they request

information regarding the program referred to by Plaintiffs throughout as the "Commodity Food Program" does not exist. No such program is authorized or administered by Defendant. Subject to and without waiving this objection, Defendant interprets this request as referring to the United States Department of Agriculture's ("USDA") Food Distribution Program on Indian Reservations ("FDPIR), authorized pursuant to Section 4(b) of the Food Stamp Act of 1977, 7 U.S.C. § 2013(b) and administered by USDA pursuant to 7 C.F.R. Part 253. As a result, in reviewing and responding to Plaintiffs requests for admissions and interrogatories, Defendant substituted "FDPIR" each time "Commodity Food Program" appeared. 18. Defendant objects to the discovery requests on the ground that they are unduly

burdensome and overly broad to the extent that they are intended to prove a negative question. The agencies do not maintain all potentially responsive documents in any one location as a

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single unit or units that are readily accessible. Presently, there are 561 federally-recognized Tribes, and this figure has changed over time. Moreover, the request spans 28 years. Defendant, therefore, cannot determine whether every federally-recognized Tribe has received some amount of federal funds at some point after its recognition. 19. Defendant objects to the requests to the extent that they seek documents and

information that is public information. To the extent that the requests seek documents that have been transferred to the National Archives or other repositories open to the public, and Defendant objects because those documents are no longer within the possession, custody, and control of the agencies administering the programs referenced in Plaintiffs Complaint and discovery requests. SPECIFIC OBJECTIONS AND RESPONSES TO REQUESTS FOR ADMISSIONS Reauest for Admission No. 1. Admit that the lists published in the Federal Register in 1980, 1985, 1988, 1993, and 1996 of Indian entities that were recognized and eligible to receive services from the United States, copies of which are attachments 1-5, hereto, accurately identify the Indian Tribes that were federally-recognized by the United States at the time of each list's publication. Res~onse Reauest for Admission No. 1. Defendant objects to Plaintiffs definitions to of "federally-recognized Tribe," "Indian Tribes," and "Tribes," as stated in general objection 6. In particular, the definitions conflict with this request for admission, which refers to a list of federally-recognized Tribes, including those in Alaska. In addition, Defendant's records do not necessarily distinguish between federally-recognized Tribes in Alaska as opposed to other geographic localities. Defendant objects to the phrases "lists published" and "accurately identify the Indian Tribes that were federally-recognized" as so vague and ambiguous that Defendant can neither

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admit nor deny the request. Subject to and without waiving the foregoing objections, denied.

Request for Admission No. 2. Admit that every federally-recognized Tribe received
some amount of federal funds or federal assistance at some time during the period 1969 through 1996 by virtue of being a federally-recognized Tribe.

Response to Reauest for Admission No. 2. Defendant objects to the phrases "receive,"
"some amount," "federal funds," "federal assistance," and "at some time" as so vague and ambiguous that Defendant can neither admit nor deny the request. Defendant further objects to "the period 1969 through 1996" as not wholly applicable to all statutes under which Plaintiff seeks discovery because certain statutes were not enacted until after 1969. Defendant objects to this request because no Tribe received federal funds or federal assistant solely by virtue of being a federally-recognized Tribe. In addition, Defendant objects to this request as being overly broad and burdensome. For some of the programs relevant to this litigation, the agencies do not organize their files or records according to whether a Tribe is federally-recognized, and the request for admission poses an undue burden and expense to conduct a search to identi@ responsive records. For example, the Low Income Home Energy Assistance Program and the Job Training Programs do not rely solely on federal recognition of a Tribe as a qualification, and even non-federally-recognized Tribes are eligible for these programs. Accordingly, for those programs, a search to determine whether all federally-recognized Tribes received funds would require Defendant to search all its files in all locations for all years in the time period for each Tribe that received funding in order to determine which Tribes received funding during the time period and compare that list to the

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list of federally-recognized Tribes for every year in question. Such a request is unduly burdensome. Defendant incorporates its general objection numbers 6, 14, 15, 16, and 17, and reiterates that this request for admission is not reasonably calculated to lead to admissible evidence. Defendant also objects to this request as overly broad and burdensome because it refers to any funding or federal assistance given by any government agency at any time during the period of 1969 and 1996. It would be impossible for Defendant to determine whether every federally-recognized Tribe has ever received any kind of federal funding or assistance during that twenty-seven year period. In addition, Plaintiff represented to the Court in its Report on Why Discovery Should Be Permitted Prior to Responding to Defendant's Motion to Dismiss that it sought discovery on a limited basis and only on certain statutes listed in the Second Amended Complaint. Accordingly, Defendant answers the Request for Admission based only on the basis of the United States Department of the Interior Bureau of Indian Affairs, the Department of Housing and Urban Development, the Department of Health and Human Services Indian Health Service, the Department of Health and Human Services Low Income Home Energy Assistance Program, the United States Department of Agriculture Commodity Food Program, and the Department of Labor's Comprehensive Employment and Training Act of 1973 and Job Training Partnership Act. Subject to and without waiving the foregoing objections, deny. Request for Admission No. 3. Admit that every federally-recognized Tribe received some amount of federal funds or federal assistance at some time following the Tribe's federal recognition through 1996 under one or more of the statutes identified in paragraph 30 of the

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Complaint.
Res~onse Reauest for Admission No. 3. Defendant objects to the phrases to

"received," "some amount," "federal funds," "federal assistance," and "at some time" as so vague and ambiguous that Defendant can neither admit nor deny the request. Defendant restates its objections that this request is unduly burdensome and overly broad. Defendant objects to this request for admission on the basis that, for some of the programs relevant to this litigation, the agencies do not organize their files or records according to whether a Tribe is federally-recognized, and the request for admission pose an undue burden and expense to conduct a search to identify responsive records. For example, the Low Income Home Energy Assistance Program and the Job Training Programs do not rely solely on federal recognition of a Tribe as a qualification, and even non-federally-recognized Tribes are eligible for these programs. Accordingly, for those programs, a search to determine whether all federallyrecognized Tribes received funds would require Defendant to search all its files in all locations for all years in the time period for each Tribe that received funding in order to determine which Tribes received funding during the time period and compare that list to the list of federallyrecognized Tribes for every year in question. Such a request is unduly burdensome. Defendant restates its general objection numbers 6, 14, 15, 16, and 17, and reiterates that this request for admission is not reasonably calculated to lead to admissible evidence. Defendant also objects to this request as overly broad and burdensome because it refers to any funding or federal assistance given by any government agency at any time during the period of 1969 and 1996 for all statutes listed in Plaintiffs complaint. Plaintiff represented to the Court in its Report on Why Discovery Should Be Permitted Prior to Responding to

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Defendant's Motion to Dismiss that it sought discovery on a limited basis and only on certain statutes listed in the Second Amended Complaint. Accordingly, Defendant answers the Request for Admission based only on the basis of the United States Department of the Interior Bureau of Indian Affairs, the Department of Housing and Urban Development, the Department of Health and Human Services Indian Health Service, the Department of Health and Human Services Low Income Home Energy Assistance Program, the United States Department of Agriculture Commodity Food Program, the Comprehensive Employment and Training Act of 1973, and the Job Training Partnership Act. For the Tribal Priority Allocation program, Defendant objects to this interrogatory because it addresses "the statutes identified in paragraph 30 of the Complaint." The Tribal Priority Allocation is not provided by for statute, but is the Bureau of Indian Affairs' means of distributing its congressional allocations. Defendant restates its general objections numbers 14 and 15 on the basis that this request is not reasonably calculated to lead to admissible evidence. Subject to and without waiving the foregoing objections, deny.
Request for Admission No. 4. Admit that every federally-recognized Tribe received

some amount of federal funds at some time after the Tribe's federal recognition through 1996 under the Tribal Priority Allocation program (TPA), described in paragraph 30.a of the Complaint.
Response to Reauest for Admission No. 4. Defendant objects to the phrases

"received," "some amount," "federal funds," "federal assistance," "at some time," and "after the Tribe's federal recognition" as so vague and ambiguous that Defendant can neither admit nor deny the request.

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Defendant restates its general objection number 14 and reiterates that this request is not reasonably calculated to lead to admissible evidence. Defendant restates its objection that this request is unduly burdensome and overly broad. Presently, there are 561 federally-recognized Tribes, and this figure has changed over time. Defendant does not retain its files by individual Tribe throughout the country and, therefore, cannot determine whether every federally-recognized Tribe has received some amount of federal funds at some point after its recognition. Subject to and without waiving the foregoing objections, Defendant states that a reasonable inquiry has been made and the information known or readily obtainable by Defendant is insufficient to allow Defendant to admit or deny this Request for Admission.
Reuuest for Admission No. 5. Admit that all Housing Authorities established by

federally-recognized Tribes that were recognized as of 1980 and that requested financial assistance under the Housing Act of 1937 as amended as described in paragraph 30.b. of the Complaint, received some amount of federal funds under that Act at some time during the period after such request through 1996.
Resuonse to Reauest for Admission No. 5. Defendant objects to the phrases

"requested," "received," "some amount," "federal funds," and "some time" as being as so vague and ambiguous that Defendant can neither admit nor deny the request. Defendant restates its objections that this request is unduly burdensome and overly broad because the United States Housing Act of 1937 covers a variety of federal funds and programs. Subject to and without waiving the foregoing objections, Defendant is unable at this time to admit or deny this request for admission. Defendant will attempt to supplement this response with additional information,

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which it expects to have by October 27, 2006. By that date, Defendant will either supplement its response or provide a date by which it will be able to do so.
Reauest for Admission No. 6. Admit that during the period 1976 through 1996, the

Indian Health Service allocated its federal Indian health care funds to benefit and serve all federally-recognized Tribes and their members.
Res~onse Reauest for Admission No. 6. Defendant objects to the phrases to

"allocated," "federal Indian health care funds," and "to benefit and serve" as so vague and ambiguous that IHS can neither admit nor deny the request. Defendant restates its genearl objections number 15 and 16, reiterating that this request is unduly burdensome and overly broad, that it requires the production of information no longer relevant to the case because it relates to the dismissed ISDA claim, and that the IHS cannot differentiate its funds under IHCIA from those under the Snyder Act. Subject to and without waiving the foregoing objections, deny.
Request for Admission No. 7. Admit that every federally-recognized Tribe that

requested financial assistance under the Low Income Home Energy Assistance Program ("LIHEAP") described in Paragraph 30.k. of the Complaint, received some amount of federal assistance under that program at some time after such request.
Response to Request for Admission No. 7. Defendant objects to the phrases

"requested," "some amount," "federal assistance," and "some time" as being as so vague and ambiguous that Defendant can neither admit nor deny the request. Defendant restates its objections that this request is unduly burdensome and overly broad because Tribes need not be federally recognized to participate in the LIHEAP. The LIHEAP applies to all low-income

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Americans and not just to federally-recognized Tribes. Non-federally-recognized Tribes are eligible for direct funding through LIHEAP, and Tribes and tribal members can receive indirect LIHEAP funding through the State, which is required to serve Tribes' service population. In addition, the Department of Health and Human Services, which administers the LIHEAP, does not collect federal recognition information. Consequently, Defendant does not organize its records or files according to whether a Tribe is federally-recognized. Subject to and without waiving the foregoing objections, and subject to the requirement that the Tribes properly applied for financial assistance and met all of the various requirements under the regulations and application requirements, admit.
Request for Admission No. 8. Admit that every federally-recognized Tribe that sought

federal assistance under the Commodity Food Program described in paragraph 30.1 of the Complaint, received some amount of federal assistance under that program.
Resuonse to Request for Admission No. 8. Defendant objects to the phrases "sought,"

"federal assistance," and "some amount," as being as so vague and ambiguous that Defendant can neither admit nor deny the request. In addition, Defendant restates its general objection number 17, reiterating that .this request for admission is not reasonably calculated to lead to admissible evidence. Subject to and without waiving the foregoing objections, Defendant states that participation in FDPIR is not compulsory for eligible Tribes nor is it the only method for tribal households to receive benefits. Pursuant to 7 C.F.R.

$5 253.2(i)(2) and 253.4(e), the USDA

must determine that an applicant Tribe is "capable of effectively administering" FDPIR on all or part of a reservation prior to participation approval. Defendant admits that Defendant is unaware

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of any Tribe that applied for and was denied FDPIR participation since the program's inception.

Reauest for Admission No. 9. Admit that all federally-recognized Tribes that sought federal assistance under one or both job training programs established by the Comprehensive Employment and Training Act of 1973 ("CETA"), and the Job Training Partnership Act ("JTPA"), described in paragraph 30.n. of the Complaint, received some amount of federal funds or federal assistance under those programs. Response to Reauest for Admission No. 9. Defendant objects to the phrases "sought," "federal assistance," "some amount," and "federal funds" as being as so vague and ambiguous that Defendant can neither admit nor deny the request. Subject to and without waiving the foregoing objections, deny. SPECIFIC OBJECTIONS AND RESPONSES TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Interro~atory 1. If your response to Request for Admission No 1 is a denial, No. (a) Explain the reason for your denial; (b) Produce copies of the lists by which the United States identified the Indian Tribes that were recognized by the United States as eligible to receive services provided by the United States to Indians because of their status as Indians, in the years 1980, 1985, 1990, 1993 and 1996. Resuonse to Interro~atorv 1. No. (a) The lists of Indian entities published in the Federal Register Plaintiff refers to in its Request for Admissions No. 1 represent the best efforts of the Department of the Interior to identify federally recognized Indian Tribes at the time the lists were created. The various lists

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that the Department developed over time represent a long, evolving process and did not always include every federally recognized Indian Tribe. For instance, the Department did not include any of the federally recognized Alaskan entities in the first list that it published as a notice in the Federal Register. Rather, the notice stated that the Alaskan entities would be published at a latter date. 44 Fed. Reg. 7,235 (Feb. 6, 1979). The Alaskan entities also were not included in the 1980 and 1981 lists the Department published. 45 Fed. Reg. 27,828 (Apr. 24, 1980) and 46 Fed. Reg. 35,36 i jjuiy 8, i 98 i j. T i e federaiiy recognized Aiaskan entities were first inciuded on a published list in 1982. 47 Fed. Reg. 53,130 (Nov. 24, 1982). For a discussion of the Alaskan entities tribal status, see the Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers Solicitor's Opinion. Sol. Op. M-36975, at 46-48 (Jan. 11, 1993). In addition to the lists not always being conclusive, mistakes were occasionally made and corrections were necessary. For a discussion of mistakes made on the list, see Improvements Needed in Tribal Recognition Process, GAO-02-49 at 23 (Nov. 2001). Lists of federally recognized Indian Tribes did not necessarily take on the significance associated with them today until Congress confirmed the authority and responsibility of the Secretary of the Interior to establish a list of Indian Tribes and mandated that such lists be published annually through passage of the Federally Recognized Indian Tribe List Act of 1994 (List Act) (codified at 25 U.S.C.

5 479a et seq.).

Prior to 1994, numerous lists were created and

used over time by the Department and other divisions of the Federal Government to identify tribal entities. These tribal lists comprise public and internal memorandums, which often also included non-federally recognized Indian groups. Some of the early tribal lists include: 1) Charles J. Kappler, Indian Affairs: Laws and Treaties Vol. 1, at 1021-1046 (1904); 2) Felix S. Cohen, Handbook of Federal Indian Law, at 457-484 (1942); 3) Theodore H. Hass, Ten Years of Tribal Government Under I.R.A., at 21-34 (1947); 4) H.R. Rep. No. 2503, at 722-1042 (1953); 5) Department of the Interior, Bureau of Indian Affairs Memorandum "Tribal Organizations:

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Indian Reorganization Act; Oklahoma Indian Welfare Act; Other Organization; Unorganized" (July 2 1, 1966); 6) Department of the Interior, Bureau of Indian Affairs Memorandum "Organizational Status of Federally Recognized Indian Entities" (Dec. 5, 1969); 7) American Indians And Their Federal Relationship: Plus a Partial Listing of Other United States Indian Groups, United States Department of the Interior, Bureau of Indian Affairs (March 1972); and 8) Governing Bodies of Federally Recognized Indian Groups (Excluding Alaska), United States Department of the interior, Bureau of Indian Affairs jiviarch i 978j. (b) Defendant objects to this request for production because any lists produced by United States pertain solely to eligibility for services and do not entitle Tribes to services or assistance based solely on tribal status. Despite this objection, Defendant is in possession of the following documents that may be responsive and has provided copies of those documents to Plaintiff: I. Department Federal Register Notices of Federally Recognized Indian Entities. The Department published the following notices of federally recognized Indian entities in the Federal Register: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 44 Fed. Reg. 7,235 (Feb. 6, 1979); 45 Fed. Reg. 27,828 (Apr. 24, 1980); 46 Fed. Reg. 35,361 (July 8, 1981); 47 Fed. Reg. 53,130 (Nov. 24, 1982); 48 Fed. Reg. 56,862 (Dec. 23, 1983); 50 Fed. Reg. 6,055 (Feb. 13, 1985); 5 1 Fed. Reg. 25,115 (July 10, 1986); 53 Fed. Reg. 52,829 (Dec. 29, 1988); 58 Fed. Reg. 54,364 (Oct. 21, 1993); 60 Fed. Reg. 9,250 (Feb. 16, 1995); 61 Fed. Reg. 58,211 (Nov. 13, 1996); 62 Fed. Reg. 55,270 (Oct. 23, 1997); 63 Fed. Reg. 71,941 (Dec. 30, 1998); 65 Fed. Reg. 13,298 (Mar. 12,2000); 67 Fed. Reg. 46,328 (July 12, 2002); 68 Fed. Reg. 68,180 (Dec. 5,2003); and 70 Fed. Reg. 71,194 (Nov. 25,2005).

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The Department did not publish a notice of federally recognized Indian entities in 1990. 11. Early Department Publish Lists of Indian Entities and Groups Charles J. Kappler, Indian Affairs: Laws and Treaties Vol. 1, at 1021-1046 (1904) (copy of relevant section); Felix S. Cohen, Handbook of Federal Indian Law, at 457-484 (1942) (copy of relevant section); Theodore H. Hass, Ten Years of Tribal Government Under I.R.A., at 21-34 (1947)(copy of relevant section); H.R. Rep. No. 2503, at 722-1042 (1953)(copy of relevant section); Department of the Interior, Bureau of Indian Affairs Memorandum "Tribal Organizations: Indian Reorganization Act; Oklahoma Indian Welfare Act; Other Organization; Unorganized" (July 2 1, 1966); Department of the Interior, Bureau of Indian Affairs Memorandum "Organizational Status of Federally Recognized Indian Entities" (Dec. 5, 1969); American Indians And Their Federal Relationship: Plus a Partial Listing of Other United States Indian Groups, United States Department of the Interior, Bureau of Indian Affairs (March 1972); and Governing Bodies of Federally Recognized Indian Groups (Excluding Alaska), United States Department of the Interior, Bureau of Indian Affairs (March 1978).
Interrogatory No. 2. If your response to Request for Admission No. 2 is a denial,

identify each federally-recognized Tribe that did not receive any federal funds or federal assistance at any time during the period 1969 through 1996 and state the reason why each such Tribe did not receive any such funds or assistance.
Response to Interrogatory No. 2. Defendant objects to the phrases "federal funds" and

"federal assistance" as so vague and ambiguous that Defendant can not properly respond to the request. Defendant objects to this request because no Tribe receives federal funds or federal assistance solely by virtue of being a federally-recognized Tribe. Defendant objects to this request as being overly broad and burdensome. For some of the programs relevant to this litigation, the agencies do not organize their files or records according to whether a Tribe is federally-recognized, and the request for admission poses an undue burden

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and expense to conduct a search to identify responsive records. For example, the LIHEAP and the Job Training Programs do not rely solely on federal recognition of a Tribe as a qualification, and even non-federally-recognized Tribes are eligible for these programs. Accordingly, for those programs, a search to determine whether all federally-recognized Tribes received funds would require Defendant to search all its files in all locations for all years in the time period for each Tribe that received funding in order to determine which Tribes received funding during the time period and compare tinat iist to the iist of federaiiy-recognized Tri'~es every year in for question. Such a request is unduly burdensome. Defendant restates its general objection numbers 6, 14, 15, 16, and 17, and reiterates that this request for admission is not reasonably calculated to lead to admissible evidence. Defendant also objects to this request as overly broad and burdensome because it refers to any funding or federal assistance given by any government agency at any time during the period of 1969 and 1996. It would be impossible for Defendant to determine whether every federally-recognized Tribe has ever received any kind of federal funding or assistance during that twenty-seven year period. In addition, Plaintiff represented to the Court in its Report on Why Discovery Should Be Permitted Prior to Responding to Defendant's Motion to Dismiss that it sought discovery on a limited basis and only on certain statutes listed in the Second Amended Complaint. Accordingly, Defendant answers the interrogatory and request for production based only on the basis of the United States Department of the Interior Bureau of Indian Affairs, the Department of Housing and Urban Development, the Department of Health and Human Services Indian Health Service, the Department of Health and Human Services Low Income Home Energy Assistance Program, the United States Department of Agriculture Commodity Food Program, the United States' Department of Labor's Comprehensive Employment and Training Act of 1973 and Job Training Partnership Act. For the Tribal Priority Allocation program and other Indian programs administered by

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Interior, Defendant objects to this interrogatory because no Tribe receives funding through the programs by virtue of being a federally-recognized Indian Tribe. Defendant restates its objections that this request is unduly burdensome and overly broad. The request for documents is overly broad and burdensome in that it seeks responsive materials to prove a negative question. Presently, there are 561 federally-recognized Tribes, and this figure has changed over time. Moreover, the request spans 28 years. Defendant, therefore, cannot determine whether every federaiiy-recognized 'Tribe has received some amount of federai funds at some point after its recognition. Any responsive documents are not maintained in any one location as a single unit or units that are readily accessible. Responding to this interrogatory and request for production would require Defendant to search all of its documents for every Tribe, including a document storage facility in Lenexa, Kansas, where potentially responsive documents may have been sent for storage alongside thousands of non-related documents. Such responsive documents, however, are not retained in a single filing system. Defendant would have to compile all of these records for every federally-recognized Tribe over the entire time period in order to develop a list of all federally-recognized Tribes and their level of fbnding to determine whether any Tribe has not received any funding. Doing so would require great time, effort, and expense. In addition, because of the nature and variety of Indian Tribes and programs, compilation of a single list would be exceedingly difficult, if not impossible. A reasonable inquiry has been made and the information known or readily obtainable by Defendant is insufficient to allow Defendant to respond to this interrogatory. Responsive documents are not available. Interior does, however, make public the total distribution of TPA fbnds per year at a macro level. These figures are contained in the publically available Budget Justifications for the Bureau of Indian Affairs. For the United States Housing Act of 1937 programs, subject to and without waiving the foregoing objections, Defendant states that, at this time, Defendant is unable to provide a list of

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Tribes that did not receive hnding pursuant to these programs because the Department of Housing and Urban Development disposes of applications for hnding after seven years, pursuant to its normal document retention as described in its Records Disposition Schedule Handbook. Defendant is, however, investigating whether some list of Tribes that did receive hnding or assistance under the United States Housing Act of 1937 could be provided. Subject to and without waiving the foregoing objections, Defendant is unable at this time to respond to this interrogatory and request for documents. Defendant wiii attempt to suppiement this response with additional information, which it expects to have by October 27,2006. By that date, Defendant will either supplement its response or provide a date by which it will be able to do so. With regard to the IHCIA, Defendant objects to this interrogatory on the ground that it is unduly burdensome and overly broad, and on the grounds states in general objections numbers 15 and 16. To comply with this interrogatory and request for production would require several steps: (I) each IHS program that operates under IHCIA, such as the Division of Grants Operations and Grants Policy, must identifL the federally recognized Tribes that received hnding through that program for each of the twe