Free Memorandum - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 1 of 11

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) ) ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA,

No. 99-550 L (into which has been consolidated No. 00-169 L) Judge Emily C. Hewitt Electronically Filed February 22, 2006

PLAINTIFF OSAGE NATION'S BRIEF ON HEARSAY AND FOUNDATION ISSUES FOR PLAINTIFF'S EXHIBITS 515 AND 86 Pursuant to the Court's Order dated February 17, 2006 and as directed in the Pretrial Conference on February 16, 2006, Plaintiff Osage Nation respectfully submits this brief on hearsay and foundation issues for Plaintiff's Exhibit 515 and the hearsay issues for Plaintiff's Exhibit 86. I. PLAINTIFF'S EXHIBIT 515 Plaintiff's Exhibit 515 is a letter dated October 18, 1996 from Gordon Jackson, Superintendent of the Osage Agency, to the Osage Tribal Council, denying the Osage Nation's request for a division order on an oil lease. Exhibit 515 is filed herewith as Exhibit 1. A. Authentication

Pursuant to Federal Rule of Evidence 901(b)(1), a document may be authenticated by the testimony of a witness with knowledge "that a matter is what it is claimed to be." The deposition testimony of Mr. Charles Hurlburt, an employee of the Osage Agency, will be introduced to show that Plaintiff's Exhibit 515 is a letter written by then Superintendent of the Osage Agency Gordon Jackson, and that the signature on the letter is that of Mr. Jackson. Pursuant to FRE

1

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 2 of 11

901(b)(1), Mr. Hurlburt's personal identification of the document and Mr. Jackson's signature are sufficient to authenticate the document. Additionally, FRE 901(b)(7) provides that a document can be authenticated by providing evidence that the document was filed in a public office as authorized by law and that it was produced from the office where items of that nature are filed. This letter was written pursuant to the United States' duty to approve division orders under 25 C.F.R. § 226.14, and was produced by the United States from the files of the Osage Agency. This authenticates the document pursuant to FRE 901(b)(7). See also Adv. Comm. Note (b), example 7 (public records are authenticated "by proof of custody, without more.") B. Hearsay 1. The Document Constitutes an Admission by the United States

Pursuant to Federal Rule of Evidence 801(d)(2)(A), an admission by a party-opponent is not hearsay if it is the party's own statement in either an individual or a representative capacity and it is offered against that party. The document clearly qualifies as a statement of the United States. The letter is written on United States Department of the Interior letterhead and is signed by Mr. Jackson in his capacity as the Superintendent of Osage Agency. Accordingly, the letter constitutes a statement of the United States in Mr. Jackson's representative capacity. Further, it is the duty of the Superintendent of the Osage Agency to approve or deny division orders. See 25 C.F.R. § 226.14 ("No production shall be removed from the leased premises until a division order and/or contract and its terms are approved by the Superintendent"). The document will be offered against the United States. The Osage Nation intends to use this document to show that the United States acknowledged its high fiduciary responsibility to the Osage Nation. Because the statement is being offered against the United States and is the 2

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 3 of 11

United States' own statement, the letter constitutes an admission and is not hearsay pursuant to FRE 801(d)(2)(A). 2. The Document Constitutes a Public Record and a Business Record

Even if the Court considers the document hearsay, it would still be admissible. FRE 803 provides a number of exceptions to the general rule excluding hearsay. FRE 803(8) provides that public records and reports are not excluded by the hearsay rule. Under FRE 803(8), "records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report," are not excluded by the hearsay rule. As shown above by the testimony of Mr. Hurlburt, this document is a statement of the Osage Agency. Because it was the duty of the Osage Agency to approve or deny requests for division orders, the document sets forth a matter observed pursuant to a duty imposed by law. 25 C.F.R. § 226.14. Additionally, the letter constitutes Mr. Jackson's official report of his decision on the request for a division order, meeting the "duty to report" requirement of FRE 803(8). See Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 600-01 (8th Cir. 2005) (holding surgeon general's report admissible under FRE 803(8) because it reported findings made pursuant to authority granted by law). Therefore, Plaintiff's Exhibit 515 is admissible pursuant to FRE 803(8). Alternatively, the document constitutes a business record under FRE 803(6), which provides a hearsay exception for records of regularly conducted business activities. The letter was written by a person with a duty to review division order requests, the Superintendent of the Osage Agency. 25 C.F.R. § 226.14. The document was kept in the files of the Osage Agency as part of it records. It is therefore admissible pursuant to FRE 803(6).

3

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 4 of 11

II.

PLAINTIFF'S EXHIBIT 86 Although not referenced in the Court's Orders dated February 17, 2006 and February 22,

2006, the Transcript of the Pretrial Conference (2/16/06 at 33) reflects that the Court requested briefing on the United States' hearsay objection to Plaintiff's Exhibit 86, which is a letter dated August 16, 1982 from the Comptroller General of the United States to the Secretary of the Interior withdrawing approval of the Bureau of Indian Affairs' accounting system. A copy of Exhibit 86 is attached hereto as Exhibit 2. For the same reasons discussed above with respect to Exhibit 515, Exhibit 86 is admissible. First, the letter is clearly an admission of a party opponent that does not constitute hearsay pursuant to FRE 801(d)(2)(A). The letter is a statement of a United States official acting in his official capacity regarding a matter within his legal authority, in this case withdrawing a previously approved accounting system. The United States intends to demonstrate that the Bureau of Indian Affairs' accounting systems were reliable and adequate to account for Osage trust funds. This letter would be offered against the United States to rebut that assertion. Accordingly, it is admissible as an admission of a party opponent. Second, even if the document is not considered an admission, it falls within the exceptions to the rule excluding hearsay set forth in FRE 803(6) & (8). As with Exhibit 515, Exhibit 86 reports the decision of a United States official regarding a matter within his authority and as to which he had a duty to act. The letter was kept in the ordinary course of business by the United States and was produced from the United States' files in the course of this litigation. Accordingly, it is admissible pursuant to FRE 803(6) or (8).

4

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 5 of 11

Dated this February 22, 2006 Respectfully submitted, /s/Wilson K. Pipestem WILSON K. PIPESTEM Pipestem Law Firm, P.C. 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 419-3526 Fax: (202) 659-4931 [email protected] Attorney for The Osage Nation

5

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 6 of 11

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 7 of 11

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 8 of 11

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 9 of 11

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 10 of 11

Case 1:99-cv-00550-ECH

Document 179

Filed 02/22/2006

Page 11 of 11

COMPTROLLER

GENERAL

OF

THE

UNITED

SiTAlES

The Honorable James G. Watt The Secretary of the Interior Dear Mr. Secretary:
Subject:

Withdrawal of Approval of the Bureau of Indian Affairs Accounting System (GAO/AF%D-82-109)

As a result of our recent review, we are withdrawing our approval of the Bureau of Indian Affairs accounting system. The reason for this withdrawal is that the system in cperation today is not the system the -troller General approved in 1953. Extensive design changes were made in the 1960rs and the system was not submitted for reapproval as required by Section 31 of Title 2 of the General Accounting Office "Policy and Procedures Manual for Guidance of Federal Agencies." Cur recent review disclosed this fact as well as serious design and operating problems. Recently we met with the Deputy Assistant Secretary for Indian Affairs (Operations) and other officials of the Bureau and the Depar&ant and explained this action to them. We offered to work with them to correct the problems in the current system and to assist in preparing the redesigned system for suhission to the CaPnptroller General for approval. From their excellent response, we are confident that Interior innd Bureau personnel will cooperate to develop and implement a good accounting system. Sincerely yours,

Signed CharIe~~.K. Bowsher Comptroller General of the United States

cc:

Mr. Richard Mulberry Inspector General

931105