Some senators are having problems with answers provided by lawyer Keith Harper, a Cherokee Nation citizen, about his work on the Cobell settlement and other tribal trust lawsuits.
Harper’s nomination to become a U.S. representative to the United Nations Human Rights Council in Geneva – an ambassador-rank post that would call for him to address human rights issues around the world – is scheduled to be marked up by the U.S. Senate Foreign Relations Committee on December 18. Some senators are likely to withhold support for his nomination, according to Senate sources.
Harper, a partner with Kilpatrick Townsend, has been a major campaign finance bundler for President Barack Obama and was co-counsel for the Indian plaintiffs in the $3.4 billion Cobell settlement with the Obama administration. He has received strong support from the National Congress of American Indians, Indian environmentalist Billy Frank, the Inter Tribal Council of Arizona, the Navajo Nation, the Cherokee Nation and several other tribes and Indian organizations.
Still, he faced tough questioning during his nomination hearing September 24 from Sen. John McCain (R-Arizona). McCain said during the hearing that he could not support Harper’s nomination in part because the Cobell legal team posted online and sent by e-mail a letter that included the names and addresses of four Native Americans who launched an appeal of the settlement, and encouraged class members to contact the appellants. McCain said the letter was an invitation for harassment, and that it called into question Harper’s leadership and capacity for human rights oversight.
McCain, Sen. John Barrasso (R-Wyoming), a member of the committee and vice-chair of the Senate Committee on Indian Affairs, and Sen. Bob Menendez (D-N.J.), chair of the committee – asked Harper to submit written answers to questions for the record.
Harper’s responses have not satisfied some of the senators, Senate sources say, due partly to information from parties involved in the case that does not align with some of Harper’s accounts. Emily Schillinger, a spokeswoman for Barrasso, says her boss “continues to have serious concerns about this nomination.” McCain’s office is also continuing to review Harper’s record and responses.
Senate sources say one concern is that Harper said that he and his firm had nothing to do with the letter, and that it was only posted online, not e-mailed to Cobell class members; he also said the letter was removed from the website run by the Cobell team. However, after the hearing, it became clear that the letter still was on the website, and the letter had been e-mailed to some class members.
In his written responses about that discrepancy, Harper said he was told by the Garden City Group, a firm the Cobell counsel hired to help administer the lawsuit, that the letter had been removed. “Lead Counsel and the litigation consultant maintained custody and control of the website content at all times while the case was in active litigation, which ended in December 2012,” Harper said.
Senators are currently exploring whether Harper’s response here meshes with a September 2013 affidavit filed by William Dorris, a partner with Kilpatrick Stockton, which indicated class counsel had day-to-day control of the website.
On whether the letter was e-mailed, Harper said in his written response to McCain that the letter was e-mailed “to a listserv comprised of those who had requested periodic electronic updates on the litigation.” He did not say how big that listserv was, nor who was on it. “Because I was not responsible for managing postings to the website, or distributions to the listserv, I did not understand the precise manner in which the letter was posted and distributed until I was informed by colleagues after the September 24, 2013, hearing,” Harper added.
At the hearing Harper held his co-counsel, Dennis Gingold, accountable for writing the letter and promoting it. But Gingold told Indian Country Today Media Network after the hearing that Harper’s characterization was “puzzling,” and he has since offered an additional comment. “The subject ‘Ask Elouise’ letter was a good, important letter and it was fully supported by the Cobell class representatives as well as thousands of class members,” Gingold said. “Every member of the litigation team knew that or should have known that.”
Senate sources also say there is concern from some senators that Harper highlighted in his answers a letter from Passamaquoddy tribal leaders who support him and his firm’s work on their 2012 tribal trust settlement, while failing to note that several council members are displeased.
Since the hearing, the committee has received letters from two of the Native Americans who were listed in the controversial letter, Kimberly Craven and Carol Good Bear, who said they were harassed after it was disseminated.
In Good Bear’s letter, she notes that she remains a member of the Cobell class, yet Harper said at his confirmation hearing that he did not speak out against the letter because he didn’t think it was in the best interest of the class members. “Mr. Harper owed me a duty to protect me, not to make me a refugee from my own reservation,” she wrote, adding she was forced to move away from her reservation after receiving harassing phone calls that threatened her daughter.
Craven, who also said in her letter to the senators that she was harassed, told ICTMN that she hopes they understand that Harper and the other lawyers did things throughout the handling of the case that she believes were unethical. She notes at one point the overseeing judge admonished the Cobell counsel for the filing of a brief against her appeal, which the judge said “border(ed) on misrepresentation.”
"My experience with the Cobell counsel—all of them, including Keith Harper—is that they are attorneys who were willing to treat concerned tribal members who are members of the Cobell class with disrespect and rudeness to achieve their end goal: getting enriched with millions of dollars at the expense of some very poor people,” Craven says.
Still, several tribes and Indian organizations have sent letters of support to the committee in favor of Harper’s nomination, and the Department of State has been gathering positive testimonials and sharing them with the committee. At the same time, the Native American Rights Fund, the Lannan Foundation and the Indian Land Tenure Foundation have all filed arguments in D.C. District Court that say the Cobell counsel has not fulfilled its financial responsibilities to them as part of the Cobell litigation.
If Harper makes it through this hearing, he could be confirmed by the full Senate under new filibuster rules recently implemented by Senate Majority Leader Harry Reid (D-Nevada) that require only a majority of the chamber to vote affirmatively for passage of presidential nominations. And his service would be historic, as no Native American is believed to have previously held a similar position.
Democratic senators on the committee have not responded to requests for comment on Harper’s answers.
John Page, director of communications with Kilpatrick Stockton, has said Harper is not allowed to comment publicly on any issues during the nomination process.