The Cobell lawyers are stoking the ire of political power players and Indians who are alarmed by their growing requests for remuneration. The requests, if granted, would take a major percentage of the settlement funds away from some of the poorest citizens in the nation.
The settlement agreed to by the Obama administration in 2009 and approved by Congress last fall caps the fees for the lawyers who represented the Indian beneficiaries at between $50 million to $100 million. Individual Indians are expected to receive, on average, less than $2,000 from the $3.4 billion deal, which is supposed to redress the Department of Interior’s mismanagement of trust funds it has held for some Natives since the 1800s.
The Cobell lawyers had publicly agreed to the cap while approval of the deal was being steered through Congress, from December 2009 through November 2010. However, in December 2010, soon after Congress signed off on the deal and President Barack Obama signed it into law, the lawyers presented an argument in court that the fees they had agreed to were too small. In papers filed with the U.S. District Court for the District of Columbia on December 14, they said “fair compensation” would be $223 million. They further argued that the court would be within its purview to increase their payment.
Lawmakers and federal officials who played key roles in the approval process are disappointed by the lawyers’ actions, and some believe they are harming Indian interests. Sen. John Barrasso, R-Wyoming, said in early February that he “would not have supported legislation that included attorney’s fees in the amount of $223 million.” He had made it clear last summer that he believed even $100 million for the lawyers to be far too generous a payment. “If you limit the attorneys’ fees to $50 million dollars instead of the $100 million that the lawyers want, that’s more money that goes to the tribes,” he said in an interview with Capitol News Connection last July.
Late last year, lead plaintiff Elouise Cobell acknowledged the important role Barrasso played in getting the settlement approved in Congress, and thanked the vice chair of the Senate Committee on Indian Affairs for his work.
That a Republican such as Barrasso would oppose large fees to tribal lawyers is not surprising to observers of D.C. politics, but a key Democratic ally, former Senate Committee on Indian Affairs Chairman Byron Dorgan, D-North Dakota, is also lambasting the move. “It’s a profound disappointment to me that the lawyers are trying to go beyond the agreement reached by Congress,” said Dorgan, who is set to launch a foundation with the Aspen Institute that will focus on Indian youth policy. “I would expect the court to respond to the interest and the wishes of Congress on this—it would not be justified for the court to go beyond what Congress agreed would be fair.”
Having retired from the Senate at the end of his term in January, Dorgan now works as a policy advisor for the Arent Fox law firm, and he still has major influence on tribal issues. He called it a “cruel irony” that the very lawyers who are supposed to be fighting for Indian interests are now “chipping away at their justice… The case was about trying to get money to Native Americans—not to lawyers,” he said, adding that there is already, “plenty of money within the context of the settlement for the lawyers.”
Dorgan said that the “nearly one-quarter of a billion dollars” the lawyers are now requesting would have “never gotten through Congress in the first place” had the lawyers been clear with their intentions from the outset.
The Obama administration is also sticking to the parameters of the original agreement. In response to the December Cobell lawyers’ filing, Justice Department officials said in a petition that the plaintiffs’ filing was “defective and not in compliance with the letter or spirit of the Settlement Agreement that the parties jointly submitted on December 10, 2010, for the Court’s consideration and preliminary approval.” A spokeswoman for the Justice Department said it is safe to assume that the agency will continue to argue that the funds included in the settlement should go directly to the plaintiffs, and not to the lawyers in additional fees.
Indians who will be hurt by the lawyers’ requests are also raising concerns. “The lawyers got congressional approval of the settlement by promising fees would be under $100 million, and are now pulling a bait and switch at the expense of Indians and taxpayers,” said Kimberly Craven, a Sisseton-Wahpeton Oyate citizen, and a possible beneficiary under the settlement. “They told us publicly and consistently $100 million, which cannot in anybody’s eyes be seen as a good faith estimate for $223 million. This is another example of how the settlement is designed to benefit attorneys and the class representatives rather than the clients.”
Richard Monette, an associate professor of law at the University of Wisconsin and Turtle Mountain Band of Chippewa citizen, said he believes the $100 million estimate for the lawyers’ fee was not made in good faith, so he thinks the Justice Department could withdraw its support. “I do believe that they misled Congress and that Congress should revisit the matter on that basis as well,” he added.
Ted Frank, founder of the Center for Class Action Fairness, a watchdog legal group, said his firm has heard from some Indian class members who are interested in being represented at future fairness hearing scheduled in the case. He said the firm will do so, and “will be objecting to the fee request, and a number of aspects of the settlement and authorizing legislation that run afoul of federal law and Supreme Court precedent on class actions.”
Frank added: “I think the fee request would be a great surprise to many of the senators who voted for the bill on the understanding that they weren’t authorizing more than $99.9 million in fees; if the $223 million fee request had been publicized in November, the bill wouldn’t have passed. The DOJ may well argue that the court doesn’t even have the authority to award more than $99.9 million; I look forward to seeing their brief.”
The plaintiffs’ lawyers, who include solo practitioner Dennis Gingold and Kilpatrick Stockton partner Keith Harper, have not suggested that they are willing to back down. In their December court filing they provided the following rationale for their request: “Class counsel have undertaken 15 years of highly contentious and difficult litigation against defendants, including an extraordinary 12 month legislative approval process. In framing and prosecuting this case, they undertook substantial risk, litigated novel procedural, jurisdictional and substantive legal issues, and navigated through a series of unique appellate [decisions].”
Gingold expanded his argument in an article published in The National Law Journal on February 2: “What we are asking for is on the lowest end of the scale for attorneys who take cases on contingency-fee basis. We shouldn’t be treated differently than anyone else.… I’m not embarrassed at all by the fee.”
Harper, a citizen of the Cherokee Nation of Oklahoma who did not respond by press time to requests for comment, has been less vocal about his role in negotiating for a higher payment.
Related: Cobell’s Final Toll