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Cobell, with her lawyers, including lead lawyer Gingold (seated), in 2009

Cobell Lawyers Reprimanded for Money Request

Rob Capriccioso
2/23/11

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.

Sen. John Barrasso, R-Wyo.

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

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skinu's picture
skinu
Submitted by skinu on
I TRIED TO TELL YOU FOOLS NOT TO PROSTITUTE YOUR OLD PEOPLE FOR THIS PHONY WOMAN!! THIS WAS NEVER ABOUT YOU IT WAS ABOUT HER AND A WAY TO GET RICH!!!SHE PAID FOR THIS WITH GRANTS AND TRIBES HELP NOW GETS MILLIONS AND HER LAYWERS WANT DOUBLE WANT THEY AGREED TO,HMMMM...SHE DRIVES OUR REZ IN HER CADDY ALWAYS LOOKIN DOWN HER NOSE AT US "DIRTY INDIANS" WELL YOU SOLD OUT TO MS.NO PERSONALITY FOR 1.5 LARGE, SHE CAN TAKE MINE AS I RATHER LOOK THE RIGHTFUL OWNERS OF THIS,THE OLD FOLKS, IN THE EYE!!THIS IS A HUGE FAIL AND A DISGRACE. YOU FOOLED LOTS COBELL BUT NOT EVERYONE TAKE YOUR BLOOD MONEY AND GO TOTALLY AWAY ALREADY!!

maryleejohns's picture
maryleejohns
Submitted by maryleejohns on
We knew this group were not to be trusted and now it goes to show everyone who was telling those of us to be thankful for these attorneys and Elouise Cobell who stands with them. Why did she agree to their change in tactics? Who is the leader? The other area of "Interest" to me is the manner in which notification is going out. A 16 page document that our people have to read to make a decision and the "Opt Out" has to take place the day of the "Fairness Hearing" - plus if you choose to Opt Out then you cannot testify at the hearing. How did these dates get established? So if you want to testify to the manner in which this was shoved down the throats of the land owners then you cannot Opt Out. But if you don't then your agreeing to the rip off. They have us coming and going... how did this happen?

rainy's picture
rainy
Submitted by rainy on
The (Cobell Lawyers) and Ms. Cobell may have done more for this Law suit and themselves than History will eventually give them credit for. Historically, this Law Suit follows a precedent set by the Indian Court of Claims, in which Indian Tribes and Legal Aristocrats entered into Contractual and Non-contractual agreements: that such payment to their Lawyers for legal services rendered would eventually come out of the Award made to the Tribes. In the past Indian Tribes were at the mercy of the Legal system. Currently the Nations stand on equal ground just as they did in the past but with one distinct difference. Indian Nations across the country still own the land!!

maryleejohns's picture
maryleejohns
Submitted by maryleejohns on
What I find espically problematic are several new areas. The first is the document that has been sent out to the Individual Indian Money Account holdes (IIM). Sixteen pages!! are we serious!! the second area is the procedure for "Opting Out", and third the procedure for the fairness hearing. A person has until the 20th of April which happens to be the date of the Fairness Hearing and if you "Opt Out" you cannot be testify at the Fairness Hearing. So this leaves many of us who want to tell the Judge that this Agreement was totally inappropriate and that the claiments did not protect the best interest of the IIM Account holders cannot "Opt Out" but if we don't then by default we have accepted the deal. Once more the Cobell has pulled a dirty trick out of their bag of tricks.

wanbli's picture
wanbli
Submitted by wanbli on
THEIR ATTRACTIONS TO THE GREED AND DOMINANCE OF A MIDDLE CLASS WHITE SUBURBANITE LIFESTYLE IS NARCISSISTIC AND CAN BE DEFINED AS SELF HATRED, AND SELF RED NATIONALIST HATRED AS ONE THAT GIVES THEIR SOULS FOR THE POLITICAL GREED, FAVORITISMS AND THE REWARD OF THE SYSTEMATIC VIOLENT DOMINANCE OF EMPIRE LUSTS FOR POWER!

howah's picture
howah
Submitted by howah on
i knew this group was not to be trusted , from the start also i agree with you.

marybrink's picture
marybrink
Submitted by marybrink on
Kudos to Cobell for pursuing justice for her people, Natives of any Nation, tribe and band! Mr Dorgan, my heartfelt thanks in standing up for my people! I, for one agree wholeheartedly, the money is long overdue in coming to the Native, and the attorneys working towards resolving this issue have my respect but PLEASE, keep in mind you would not have the job you have if this was not the will of the people. Injustice by the government must stop, and remember whom you represent, not yourselves but us! More money in your pockets will not meet the needs of my people who have always ever been on the "down" side when the United States needed what we had!

iimaccountholder's picture
iimaccountholder
Submitted by iimaccountholder on
It seems we lost focus of the Cobell Lawsuit claims: fix the broken government system and conduct any accounting of “all” funds, neither was done. Our government hates Indians who is our federal protector. They hate any Judge who provides justice. They were held in contempt of court and lying to a federal judge. They hate investigators and federal employees, Indian or not, who provides the truth. They dismissed the honest and rewarded the dishonest. They promoted fear in Indian Affairs. They recruited the ignorant to fix the Indian problem. They destroyed records important for a larger settlement. They spent more money in the appearance of trust reform then the settlement award. They stole our land, destroyed it or gave it away. They cannot account for money from our lands. They have done a thousand more destructive things of anything Indian over the past century and are well recorded in the Courts. All the court documents are available and free to read but were expensive to construct. There are testimonies of federal managers protecting their historical mismanagement and those reporting plans for trust reform failure at tax payer’s expense. To understand the governments’ hatred for Indians you must read these court documents that the Cobell Legal Team investigated, prepared and presented to the Court and is recorded forever. There is no greater recap of planned Indian termination and the continuation of it because in the trust reform era (1994 to present), the government fixed nothing. If the Cobell lawsuit of 1996 was not filed then the Trust Reform Act of 1994 creating the Office of the Special Trustee for American Indians (OST) would have said they owe us Individual Indians nothing. Then what? OST is a circus of events that wasted billions in an expensive appearance of trust reform and still is today. It seems all federal organizations that services Indian property is reported as corrupt and broken. Why? Tribes and Individual Indians had the greatest opportunity to band and charge the enemy in the battlefield of law to correct the past and fix the future and we failed. It seems Tribes think the Individual Indian is a foreigner on their lands. It seems Tribes think of us as a dis-enrolled squatter. What they should know is the same trust that Cobell was trying to fix is also the tribal trust. The same government that destroyed tribal lands and money also governs the Individual Indian lands and money. The same government that administers broken trust services to Tribes also administers to Individual Indians. We have the same enemy but we were never on the same side. Over the past century, the broken trust responsibility is justification for many lawyers to be hired by Tribes, Individual Indians and the government for lawsuits of Indian claims. If the broken government trust was recognized and enforced as a public trust from the beginning then Indian services would have been protected, enforced and provided more money to Tribes and Individual Indians then to all others. So why fix it when Indians get poorer and others get richer all from Indian property and assets. It was once said that crime doesn’t pay, in the Indians’ case crime does pay. I believe the Lamberth court investigations and the Cobell Legal Team have provided the ultimate evidence of a broken government and now a Court system. Regardless of smoking gun evidence there will be no justice for Indians ever. In my opinion, I don’t think there will ever be another lawsuit similar to Cobell because many records have been destroyed and now the government controls the rest. I was not in the Courtroom but witnessed a government gone wild and rogue. This government was imploding and drafted every deceitful action possible to undermine Cobell. The government learned new things from Cobell but already knew that Indian Country lacked unity. They knew we would fight amongst ourselves and counted on it. Without unity, federal Indian business will be samo-samo. Could Indians ever organize a million man march on Washington DC? It’s easy, the settlement award is optional. The equitable award will never be known because of the governments’ reckless performance. Opt out and wait for another claimant with funding to file another lawsuit and attempt to get more money or file individually. Who has more money, you or the U.S? You are not forced to sell your land or interest but understand the same broken government is still in charge. What you will eventually see is the Government keeping the lawsuit in court forever, litigate until you are broke, you die or forced to accept minimum. If your land is in sole ownership then take control of it yourself. Land fractionation will only get worse and more co-owners will be added on to the hundreds already there. Opt in and accept your award, sell your small land interest to the Tribe and participate in a land program that will create a greater economic land policy that will build a larger and productive Native Nation. I don’t think there will ever be another legal team more effective then the Cobell attorneys. I wish the going rate for class action attorney’s fees was up front but that must be the going rate. I wish the attorneys get their new fee’s but from new money if not then Thank You Ms. Cobell and Mr. Dennis Gingold for court work that will probably be never done again. Thomas M. Wabnum Prairie Band Potawatomi IIM Accountholder BIA/OST retired

dhowe52's picture
dhowe52
Submitted by dhowe52 on
I have inherited some land, so this effects me. To me all this does is confirm and enhance my distaste and suspicion for those who use the rule of law for their own personal gain and/or prestige. Greed and self importance always seems to take the day. How much is enough? When will it stop? Native people for generations have pondered these things. Land, money, natural resources seem to corrupt and change things and always the Indian gets the short end of the stick. These lawyers fit that mold that I have in my mind of what law is all about. The rich get richer and the poor get poorer. Unfortunely they will never understand,the strength and richness Indian people have is in the land itself, our ancesters made it that way.
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