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Case 1:99-cv-00550-ECH

Document 222-2

Filed 04/03/2006

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1 IN THE UNITED STATES COURT ) ) ) ) ) ) ) ) ) ) ) OF FEDERAL CLAIMS

THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA, Plaintiff, v. UNITED STATES, Defendant.

Docket No.:

99-550L

Room 617 National Courts Building 717 Madison Place N.W. Washington, D.C. Thursday, February 16, 2006 The parties met, pursuant to notice of the Court, at 9:13 a.m. BEFORE: HONORABLE EMILY C. HEWITT Judge

APPEARANCES: For the Plaintiff: WILSON K. PIPESTEM, Esquire Pipestem Law Firm 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 (202) 419-3526

Heritage Reporting Corporation (202) 628-4888

Case 1:99-cv-00550-ECH

Document 222-2

Filed 04/03/2006

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275 1 that, I think, in a way that is for the Plaintiff's 2 usefulness. The rhetoric of Cheyenne Arapaho is way

3 in front of the current rhetoric of Mitchell White 4 Mounting Navaho and most important for me is my 5 immediate supervisor's Shoshone. The maximization

6 issue came up in the sand and gravel phase of 7 Shoshone, which is the -- it's kind of a mini-case 8 that ended up with some very important decisions being 9 issued. But the framework was -- the Plaintiffs, in

10 that case, had also reached back pre-Mitchell for some 11 standards on maximization and the Circuit found -- you 12 have to look at the briefing to see how that got away, 13 but it's actually not so unlike the situation here. 14 The Circuit came down pretty hard on this isn't -- our 15 standard isn't maximization. It's whatever standard

16 can be drawn out of the sand and gravel -- the mineral 17 regulations. And I think that's -- and I think the

18 Circuit would see this case the same way. 19 20 MR. LALONDE: THE COURT: Right. I don't think they would look --

21 and I think I may have signaled that in an earlier 22 opinion, but it's my view that the bare standard of 23 maximization on any of these obligations is just very 24 unlikely to be viewed in the current environment as a 25 read out, a direct read out of any of the obligations Heritage Reporting Corporation (202) 628-4888

Case 1:99-cv-00550-ECH

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276 1 that are here. Having said that, that doesn't leave I mean, there's not a lot And I'm going 2 us with much more, does it?

3 of law, frankly, on 161(a) and 162(a).

4 to be looking very hard to see, to the extent that 5 there is comparative information on how other kinds of 6 documents -- other similar types of investments are 7 handled. I am not persuaded, for example, from the

8 pretrial briefing, that using an average of what all 9 the other Indians received is particularly probative 10 on an investment regime, which required quarterly 11 payments. If I'm stuck, I will end up having to take If

12 judicial notice, and I will do this if I have to. 13 I don't get evidence on periodic interest rates, I 14 will just look at T-Bills.

You'll just notice that I

15 will just be looking at -- you know, I'll just be 16 looking at publicly -- at documents, which are -- that 17 would fit within the types of documents. I won't go

18 very far to do that, but I will look at the documents 19 that are publicly available about rates, interest 20 rates, that would fit into whichever investment regime 21 we're under. But looking at an annualized or multi-

22 year return, it strikes me, is not something that I 23 would do, knowing that there's publicly available data 24 that I could, by judicial notice, employ, if I were in 25 a situation of trying to find a test or benchmark for Heritage Reporting Corporation (202) 628-4888

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277 1 an investment period of three months. 2 I think we're trying to find language that

3 kind of -- that takes -- that doesn't have your agency 4 language in it. But on page four, those are the

5 government's investment practices in little iv are 6 consistent with the actions of a reasonably prudent 7 investor with a trustee in the circumstances. 8 are the circumstances? 9 10 trustee. 11 12 ward. MR. LALONDE: In fact, that's a government What

One of the circumstances are -THE COURT: A government trustee with a

That's a -- I mean, the government could be a

13 trustee in different circumstances; but, here, they're 14 the trustee with the money of a ward, which probably 15 put some additional pressure on the government as the 16 trustee. A government trustee, depending on what year

17 you're in, was following investment practices that the 18 Congress has been describing to the Department of the 19 Interior with different degrees of urgency about 20 attempting to make money. 21 come into it. The word "maximize" doesn't You'll find

I think it does come in.

22 it in legislative history.

But, I don't think cases It doesn't appear

23 currently say that's our standard. 24 to be. 25

Now, what's left of 5-1 after -- on page Heritage Reporting Corporation (202) 628-4888