UPDATED SEPTEMBER 13, 2012: Keith Harper, one of the principal lawyers who worked on the Cobell settlement, has provided ICTMN with new information that clarifies some of the incidents and questions discussed below. Mr. Harper states that while serving on the Obama transition team he fully and properly recused himself from any matters relating to his work on the Cobell case, and that his work on the transition team could not have played a part in the negotiations of the Cobell settlement because those negotiations were, he writes, “handled by career lawyers at the Department of Justice, along with career staff from the Departments of Interior and Treasury and overseen by District Court Judge James Robertson. There was from time-to-time involvement by political appointees, but I did not recommend any of such individuals for their positions and was not in any way part of their selection.” The piece originally published on September 10, 2012 as “White House Says Lawyer in Cobell Deal Recused on Administration Conflicts; Facts Contradict” was updated to reflect this information on September 12, 2012 and was previously updated on September 11, 2012 to reflect more concerns from Passamaquoddy tribal leaders over their issues with the Kilpatrick Townsend & Stockton firm, as well as NARF’s ongoing conflict over fees with the Cobell lawyers.
WASHINGTON – The White House says that one of the high-profile lawyers representing the Indian plaintiffs and class members in the $3.4 billion Cobell settlement recused himself on issues related to the Cobell Indian trust case while he was working for the Obama administration’s transition team in late 2008.
The Cobell settlement is being appealed to the U.S. Supreme Court by Kimberly Craven, a Sisseton-Wahpeton Oyate citizen who argues it is unfair to individual Indians, most of whom will receive less than $2,000 under the deal, while the lawyers may get almost $100 million, and have requested an additional $123 million. She has argued that Harper appears to have been sitting on both sides of the table by negotiating the settlement with people he helped get elected and appointed.
The White House, however, says that Harper’s relationship with the Obama administration didn’t improperly influence the negotiation of the Cobell trust settlement. “As a member of the 2008 transition team, Mr. Harper recused himself from any issues related to the Cobell settlement agreement, including recommendations for appointees at the Department of the Interior,” spokesman Shin Inouye said after a September 7 ICTMN article revealed Harper’s roles on the administration’s transition team, on the current Obama campaign as a tribal donation bundler, and his role in drafting a platform supportive of the Cobell settlement for Obama at the recent Democratic National Convention.
Both the White House and Harper told ICTMN after that article was published that they could not say what specific areas Harper advised on as part of the transition team, and the White House referred all questions about that to Harper. But Harper, prior to his clarification, had said he signed a confidentiality agreement that prevents him from explaining his Interior Department-related decisions.
A tribal trust case Harper and his firm worked on for the Passamaquoddy Tribe resulted in a settlement with the Obama administration of $12 million this April. In that agreement, the federal government stipulated that the lawyers were to be paid 15 percent of the settlement—$1.8 million. The agreement also said that fees for Harper’s firm were to be paid directly from the federal government. Dozens of other tribal trust settlements announced at the same time were not structured in this manner; instead, tribal officials in most cases received the full settlement, and the tribes then decided how to pay their lawyers—and in all known cases they paid their lawyers at rates lower than what Harper’s firm received for its work for the Passamaquoddy Tribe. There were 41 tribal trust settlements announced at the time.
It hasn’t been publicly revealed how Kilpatrick Townsend & Stockton was paid for settlements it handled for other tribes. In addition to Passamaquoddy, Harper’s firm represented the Salt River Pima-Maricopa Indian Community and the Tohono O’odham Nation in settlements this year. It continues to represent the Ak-Chin Indian Community, which has not agreed to a settlement to date.
“The money always went to the tribes,” John Echohawk, director of the Native American Rights Fund (NARF) says of the tribal trust cases NARF oversaw. Many of NARF’s clients ended up paying about 10 percent of their settlements to NARF, and some paid less. NARF is currently involved in a legal battle with Cobell lawyers, arguing they should be compensated for work done on the case. Cobell lawyers believe NARF should not get anything for its work on the case.
Newell Lewey, a council member with the Passamaquoddy Tribe since October 2010, says he and other council members were not informed by Harper’s firm that their agreement was different than many the other tribal trust settlements. “I don’t know why we paid 15 percent up front, and I don’t know why the federal government paid our lawyers directly,” he says. “It is interesting [and] concerning. I don’t know why it happened this way.”
Lewey adds that Harper’s close connections with the Obama administration “would have been nice to know in February,” when the council was deciding whether to accept the settlement. Lewey says he plans to investigate this situation with the tribal council and with Kilpatrick Townsend & Stockton. The Passamaquoddy Tribe did pass a resolution supporting the agreement, but Lewey says they didn’t have all of the information that is now coming to light, which he thinks they should have had.
Of course, the case could also be made that the tribe might have gotten a worse deal if they hadn’t had a lawyer close to the administration—yet another reason why transparency is crucial, says Tom Rodgers, a tribal lobbyist with Carlyle Consulting who was not involved with those 41 settlements. ”The key thing is whether the tribes/tribal councils were made aware of this arrangement,” he says. “That is the critical ethical question.”
In April, Indian Country Today Media Network asked the U.S. Justice Department for a copy of all 41 tribal trust settlement agreements, but a spokesman said the agency would not release a breakdown of the settlement agreements—including their payment structures to lawyers—despite the administration’s transparency policies, which say that the administration “is committed to creating an unprecedented level of openness in Government.” In that policy statement, President Barack Obama is quoted saying: “Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.”
How Harper and the firm secured the payment mandate for the Passamaquoddy deal is unclear, but U.S. Rep. Don Young, R-Alaska, and chairman of the U.S. House Subcommittee on Indian and Alaska Native Affairs, feels that individual Indians are getting shortchanged by the lawyers. “Congressman Young finds Mr. Harper’s dual roles representing both Obama’s interests and the Indian interests in the Cobell case to be troubling,” says Luke Miller, a spokesman for the congressman. “Even if we are to believe the White House, the perception is that Mr. Harper helped write a deal aimed primarily at financially benefiting the rich trial attorneys representing about 350,000 individual Indians instead of the individual Indians themselves.”
When Obama was elected, Elouise Cobell, lead plaintiff of the case until her passing in October 2011, urged Harper and other Native transition team members to work to get a friendly administration in place that would be sympathetic to her long-running case and other Indian issues. “This is our last big chance to get a lot of things done,” Cobell told The Missoulian in a November 2008 article. “Maybe if we get the right people in these positions, we can all work together: the tribes, Congress and the administration.”
Dennis Gingold, the lead lawyer and private practitioner in the Cobell case who has worked closely with Harper, doesn’t think Harper’s ties to the Obama administration and campaign compromised the Cobell settlement, but he also notes that the overseeing court never had a chance to make that determination, and Harper never recused himself in front of the court.
Rep. Young, who has chaired the Indian affairs subcommittee since 2010, sees problems with both Harper’s role and the White House’s explanation of it. His spokesman says that since the Republicans took control of the House in 2010, the Obama administration has not given Indian affairs leaders there any information on the Cobell lawsuit other than what its lawyers have filed in court.
With so many Indians watching—and now the U.S. Supreme Court watching, too, given Craven’s appeal petition filed there on August 20—perceptions are important, says Eric Eberhard, a law professor at Seattle University who worked as a staff director on the U.S. Senate Committee on Indian Affairs under U.S. Sen. John McCain, R-Arizona, in the 1990s and was later appointed by President Bill Clinton to the Board of Trustees of the Morris K. Udall Foundation. “Even when the rules governing conduct are clear, there are always gray areas and at some point the question becomes not so much one of compliance with the law, but more one of whether the conduct creates an appearance of a conflict of interest or impropriety,” he says. “Whether there is an appearance problem when the law is not clear is usually a subjective call. In those situations, the accepted D.C. standard generally is that if you don’t want to see it on the front page of the newspaper, don’t do it.”