Leaders of the Passamaquoddy Tribe of Maine are questioning lawyer Keith Harper’s commitment to human rights given his treatment of the tribe during negotiations of their $12 million tribal trust settlement with the Obama administration last year.
Harper, a partner with the Kilpatrick Townsend law firm, was nominated by President Barack Obama in June to become a U.S. representative to the United Nations Human Rights Council in Geneva – an ambassador-rank post that would have him addressing human rights issues around the world. Harper was one of the lead lawyers in the $3.4 billion Cobell trust settlement with the Obama administration, and he raised over $500,000 for the Obama campaign for president last year. He also served on the Obama transition team and was appointed as a member of the president’s Commission on White House Fellowships in 2011.
Harper’s judgment was questioned by Sen. John McCain (R-Arizona) at a Senate Foreign Relation Committee confirmation hearing September 24, during which McCain read from a letter from January 2012 released by the Cobell counsel that included the names and addresses of four Native American class members who were appealing the settlement. The letter encouraged class members to contact the appellants. “You’re talking about human rights here,” McCain admonished Harper during the hearing, asking him why he never publicly spoke out against that letter. “I think these four people’s human rights were abused.” Harper claimed he wasn’t directly involved in the distribution of that letter, but McCain remains unconvinced Harper “is as ignorant as he claims,” according to the senator’s office.
With Harper’s nomination pending, Congress is getting interested in the terms of these deals. McCain’s spokesman said the senator is investigating Kilpatrick Stockton’s fees related to trust settlements, and the office of Sen. John Barrasso (R-Wyoming), vice-chair of the Senate Committee on Indian Affairs, said he is aware of the Passamaquoddy’s concerns, and he is looking into them.
The Passamaquoddy Tribe, one of the poorest in the nation, is concerned that Harper and his firm charged them a higher amount in lawyers’ fees than at least one other tribe the firm represented last year in tribal trust settlements. While appreciative of the money Harper helped them secure, they feel they were taken advantage regarding those higher fees. They also feel Harper should have informed them of his relationship with the Obama administration when they were negotiating their settlement.
“If he’s going to be working on human rights, how he treats tribes is important,” said tribal council member Christina Downing, who supports a congressional inquiry into Harper and his firm’s dealings with her tribe and others. “[W]ith him knowing our poverty, he really took advantage of our desperation. By doing that, it doesn’t seem right. It needs to be looked into.”
“It’s important to find out why we were treated differently,” added Ed Bassett, a tribal council member since January who has served as a vice-chief with the tribe. “[Harper] needs to be asked why one tribe had to pay more than the rest of them—and is there a pattern with this particular law firm in doing this kind of thing [to tribes].” Bassett also supports a congressional inquiry.
The background of the tribe is the starting point for understanding their concerns, said Downing, a council member since 2008 with the Pleasant Point branch of the tribe. She noted that the Passamaquoddy homelands are overrun by poverty, with a tribal unemployment rate that sometimes climbs over 50 percent. This is not a big-gaming tribe, she noted, and the tribal citizens don’t have high-powered, well-connected lobbyists. Many live a simple life, trying to earn a living on sustenance activities, especially fishing, while keeping their vibrant culture and language intact.
Two years ago, say tribal leaders, the tribe got a call from Harper, a Washington, D.C.-based partner with the Kilpatrick Stockton firm, asking if they’d be interested in settling their longstanding lawsuit centering on trust fund mismanagement by the federal government for possibly millions of dollars. Some former and current council members had signed the tribe up to be represented by the firm years before, but the case had long been stalled, and Harper’s offer was welcomed by the current leadership. “Our tribal members certainly could benefit—that was my first thought,” said Clayton Cleaves, who was elected as one of the tribe’s chiefs in October 2010.
Cleaves said that while the tribe was negotiating with the federal government on a settlement, Harper urged them to be quick. “[W]e were told [by Harper], ‘Well, you better hurry because some of the authorities who a pro-Native American are currently working in the Department of the Interior, and if you don’t settle, you’re going to end up in court for many years with the opportunity to lose your case.’
“The trigger was going to be pulled, and we would be dead in the water,” Cleaves recalled of the pressure he felt.
The tribe’s council agreed to a $12-million settlement that mandated 15 percent in lawyers’ fees ($1.8 million) to be paid directly to Kilpatrick Stockton by the U.S. government.
Downing said the tribal council had many questions about that arrangement. Harper initially wanted at least 30 percent for his firm, she said, but the tribe negotiated that down to 15 percent. When tribal leaders found out that the payment would be made directly from the federal government to the lawyers, they were displeased, preferring to pay their own bills and maintain their sovereignty, but Harper told them that was how it had to be done, council members recalled.
They say Harper also asked the tribe’s leaders to keep their settlement terms quiet. “I was suspicious because he told us not to disclose the amount we were going to get and not to discuss it with other tribes—that raised some red flags that maybe we weren’t all going to be treated equally,” Downing said.
What the tribe’s council did not know at the time was that two other tribes Harper was representing concurrently on trust settlements were securing vastly different deals. In the case of the Salt River Pima-Maricopa Indian Community, the tribe was allowed to pay its lawyers’ fees without government intervention (the tribe hasn’t released the percentage it agreed to pay), and in the case of the Tohono O’odham Nation only 6 percent in lawyers’ fees was called for under their settlement agreement that, like the Passamaquoddy’s, was unusual compared to a vast number of the other tribal settlements because it called for direct payment from the federal government to the lawyers (at least 51 out of 56 settled last year did not contain that requirement). In dozens of other trust cases settled at the same time by various law firms, including the Native American Rights Fund and several for-profit firms, the rates charged to tribes were nowhere near high as the 15 percent charged by Kilpatrick Stockton to the Passamaquoddy.
“If the tribe had known that we were being treated differently, then we would have wanted to speak with the lawyer about it,” Bassett said. “We didn’t have any of that information about his lower fee for the other tribe. It feels wrong to be charged the most, percentage-wise. It is wrong.”
The Passamaquoddy fee was high compared to that in other settlements, but was it unreasonable? “It is in the eye of the beholder in most respects,” said Eric Eberhard, a law professor at Seattle University who previously served as the director of the U.S. Senate Committee on Indian Affairs from 1989 to 1995. For comparison, he noted that Congress capped the fees in the Cobell trust settlement to individual Indians at approximately 6.5 percent, and, under the tribal cases settled in the Indian Claims Commission, Congress capped fees at 10 percent.
“It sure doesn’t feel like justice was served…,” Downing said. “Other tribes need to be aware.”
When contacted recently, John Page, director of communications with Kilpatrick Stockton explained that Harper, a Cherokee Nation citizen, was not allowed to comment publicly on any issues during the nomination process. However, Harper responded to concerns raised by Passamaquoddy leaders in an op-ed published on indianz.com in September 2012 to initial concerns raised by council member Newell Lewey. “It is common, of course, for contingent arrangements to exceed 30%, so 15% is not extraordinary is any sense,” he wrote at the time. “What is more, the Passamaquoddy Tribe enacted a resolution this year which expressly approved of the direct payment from the United States to our firm.” He also wrote that his firm had a contract with the tribe for 15 percent for nearly six years when the firm first started representing the tribe, and he said that one of the benefits in structuring a settlement so that payment of the lawyers’ fees goes directly from the government to the lawyers is that it ensures greater transparency.
Kilpatrick Stockton has also released new information rebutting the Passamaquoddy’s concerns. “The contingency agreed to between our firm and Tohono O’odham Nation was 6% because, in addition to the contingency fee, the Tribe paid us a discounted hourly rate on a monthly basis throughout the litigation,” Bill Austin, a Kilpatrick Townsend Partner said in an e-mailed statement. “In contrast, the Passamaquoddy Tribe elected to hire our firm on a pure contingency basis in lieu of making any monthly payments. Both arrangements were fair and based on the preferences of each client. Regarding the settlement approval, we cannot discuss specifics because of attorney-client privilege.”
Austin further said the tribe made an informed decision to accept the settlement. “That decision was formally expressed in a Joint Tribal Council Resolution enacted by Tribal leadership. Had the Tribe decided to continue litigation, we were prepared to continue to zealously represent them as we had throughout the case.”
Tribal leaders agree that they did pass a resolution supporting the agreement, but they are displeased that they were not told how their agreement was different from most other tribal trust settlements. They ask if the goal was to achieve transparency, why did Harper urge them not to talk about their settlement agreement with other tribes. And they ask why the firm will not release all its fee arrangements with tribes it represented in the trust cases if transparency is its goal.
Council members also said the firm’s contract was negotiable and nothing was set in stone six years ago, which is how they got the firm to charge less than the 30 percent the firm originally wanted to charge.
As a result of the settlement, the tribe’s council decided to make per capita payments of approximately $3,000 to each tribal citizen last year. “A lot of people went out and bought school clothes; a lot of people renovated their homes with new storm doors and paint,” Cleaves said.
Meanwhile, American Lawyer magazine reported this April that Kilpatrick Stockton was able to increase its partners’ salaries at a rate of 36.5 percent in the past year as a result its work on the Indian trust settlements, amounting to a salary of $750,000 per partner per year. The money really started flowing in June 2011 when the D.C. District Court awarded it a sizeable portion of $85 million due to the lawyers for its representation in the Cobell trust case, which was approved by Congress in 2010, and centered on individual Indian claims of trust mismanagement by the federal government.
Harper and his firm have not responded to requests on how the money was divvied among its lawyers who worked on that case, but on September 10 of this year, the firm and other Cobell lawyers filed a new request with the court asking for an additional $11.25 million out of the Cobell settlement account, of which Harper assessed in court documents that he is due an additional $776,933 for 1,472.2 post-settlement hours he claims he worked through June 30. The firms’ other lawyers who worked on the case are requesting over $3 million in additional fees. The Lannan Foundation filed a motion to intervene September 24, saying that it had already awarded the Cobell lawyers millions of dollars in grants covering these post-settlement fees.
Members of Congress have vowed to look into many tribal settlements, but the Passamaquoddy know their deal is done, and it doesn’t feel so good after all. “I feel like a fish on a hook,” Downing said.