WASHINGTON – Keith Harper, one of the high-profile lawyers representing the American Indian plaintiffs and class members in the $3.4 billion Cobell settlement recently made with the Obama administration, has been serving as a party leader at the Democratic National Convention (DNC) for the District of Columbia, even though he lives in Bethesda, Maryland, according to a listing posted by the national organization, which released some contradictory information regarding Harper’s role at the convention.
According to Tania Jackson, a spokeswoman for the D.C. Democratic Party, Harper was selected as an unelected delegate by President Barack Obama. She noted that most states have delegates who reside in that state, but because D.C. is unique—not a state, but it has delegates—sometimes unelected delegates get appointed from other states. “He was one of the add-ons that came from the President,” Jackson said of Harper. “He is not an elected delegate.”
Brian Bond, a director with the national DNC, contradicted Jackson, saying that the national organization mistakenly listed Harper as representing D.C. as a delegate, instead of Maryland, where Harper resides. He also said Harper is a “platform PLEO, not a delegate.” According to Democratic Party rules, PLEO stands for “Party Leaders and Elected Officials.”
The Office of the Secretary of the DNC agrees with the D.C. Democratic Party, listing Harper as a 2012 delegate, not as a PLEO.
“[T]here are PLEO Delegates and PLEO standing committee members—PLEO standing committee members are not delegates,” Bond said via e-mail, explaining that Harper serves on the DNC Platform Committee at the DNC.
Bond added that the D.C. Democratic Party and the DNC Office of the Secretary are wrong about Harper being a delegate, and indicated his status will be corrected in the final roll released by the DNC.
Indian Country Today Media Network has been unable to learn why Harper was listed as representing D.C., rather than Maryland, but has confirmed that all Maryland delegates and PLEOs are from that state.
Harper, a lawyer with Kilpatrick Townsend & Stockton, played a role in drafting and approving his party’s platform, released earlier this week. It contains a provision promoting the Cobell settlement as an achievement for President Barack Obama. He also supported Obama as the Democratic Party’s nominee for president in the upcoming election, although he could not cast a vote for the President’s nomination as a standing committee PLEO. Harper has not responded to requests for comment.
Harper’s many connections to Obama have long been of interest to those monitoring the Cobell settlement. Over the past year, he has served as a Native American donation bundler for the Obama campaign, helping gather millions of dollars from tribal leaders; and he served on the President’s transition team just months before the $3.4 billion Cobell settlement agreement between the administration and the Indian plaintiffs Harper represents was announced in December 2009.
Harper’s firm is due to receive millions of dollars in payment if the settlement makes it through appeal. The settlement calls for almost $100 million for Cobell lawyers’ fees, and the lawyers have requested an additional amount, saying their final take should be over $220 million. Most Indian class members would receive less than $2,000 under the deal.
Whether Harper played a role in selecting administration officials he later negotiated the settlement with has not been confirmed by the White House, but his dealings on the transition team in late-2008 and early-2009 were focused on the Interior Department, the same agency that the settlement involved in late-2009. The New York Times reported in November 2008 that Harper appeared to “skirt the edges” of conflict-of-interest restrictions put in place by President-elect Obama that were supposed to ban transition officials from working in areas of the transition where they recently lobbied. The paper noted that he had recently lobbied the federal government on behalf of tribes and Indians.
Harper, a Cherokee Nation citizen, is currently named in court papers before the U.S. District Court for the District of Columbia as one of the lawyers representing the interests of the hundreds of thousands of Indian class members in their settlement claims against the Obama administration and the U.S. Department of the Interior.
“It is no secret that I am a supporter of President Obama and I will do anything within my (albeit limited) power to help his re-election,” Harper told ICTMN in February in an e-mail message in which he insisted that no tribal lobbyists attended a fundraiser for Obama last winter, although he was registered as a tribal lobbyist in 2008, helped coordinate the fundraiser and was seen attending at least some portions of it.
Dennis Gingold, the lead lawyer for the Indian plaintiffs who has worked closely with Harper, says he believes the Cobell settlement was not compromised by Harper’s ties to the Obama administration.
“I assure you that no quarter was given either by the plaintiffs, including Ms. Cobell [lead plaintiff Elouise Cobell who passed away in October 2011], or the government in this difficult case, or in the hard-fought settlement negotiations, which have resulted in the largest settlement involving the government in American history,” Gingold told ICTMN via e-mail in August.
“Thankfully, in our country, all citizens, including Indians and even attorneys, enjoy the freedom to support candidates of their choosing,” Gingold added. “I know of no bar or restriction on an attorney supporting any particular candidate. As lead counsel for 500,000 individual Indian trust beneficiaries for more than 16 years, I do not see any conflict whatsoever in Keith Harper’s support for President Obama.”
Gingold also indicated that Harper recused himself on all matters relating to Cobell during his tenure on the transition team. “Nonetheless and notwithstanding his recusal, prior to undertaking any role in the settlement of the Cobell litigation, Mr. Harper’s participation was reviewed and approved by appropriate authorities,” Gingold said.
When asked who those authorities were, Gingold indicated that Harper’s recusal was known to himself and Elouise Cobell, which doesn’t explain how and if Harper’s role was truly reviewed.
However, notice of his recusal was not provided to the overseeing court: “Keith’s participation on the Transition Team had nothing whatsoever to do with the Cobell litigation,” Gingold said. “Accordingly, no notice to the district court was required.”
Meanwhile, the Democratic Party has very recently touted the Cobell settlement as an accomplishment for Obama in its 2012 platform, which Harper played a direct role in drafting. It states, “President Obama and Democrats in Congress, working with tribes, have taken unprecedented steps to resolve long-standing conflicts, finally coming to a resolution on litigation—some dating back nearly 100 years—related to management of Indian trust resources, administration of loan programs, and water rights.”
Still, many Indians, including one of the people who has appealed it to the U.S. Supreme Court, say the settlement is flawed and is better for the Interior Department and the lawyers involved, including Harper, than individual Indians attached to the class-action suit.
Appellant Kimberly Craven, a Sisseton-Wahpeton Oyate citizen, who filed a petition for appeal with the high court on August 20, has said that Harper theoretically sat on both sides of the table by negotiating the settlement with the same people he helped get elected and appointed.
David Harrison, a lawyer representing three other Indian plaintiffs who are considering an appeal to the Supreme Court of the overall deal, has raised the same concern. “It strikes me as just a little bit unseemly,” Harrison said.