[Congressional Record Volume 160, Number 84 (Monday, June 2, 2014)]
[Senate]
[Pages S3320-S3325]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HARPER NOMINATION
Mr. McCAIN. Mr. President, today the Senate will consider the
nomination of Keith Harper as the U.S. Representative to the U.N. Human
Rights Council.
I am generally deferential to the President's decisions when it comes
to nominations brought before the Senate for confirmation, but in
extraordinary circumstances I don't hesitate to oppose them. Given the
extraordinary circumstances present in this case, I must strenuously
object to this nominee.
Mr. Harper is the latest State Department ``bundler-blunder'' that is
slated for a U.S. ambassadorship. Earlier this year we saw the
administration nominate several wholly unqualified top Democratic
fundraisers to serve as ambassadors to various posts around the world.
One such fundraiser, Mr. George Tsunis, was nominated to serve as the
U.S. Ambassador to Norway. During his confirmation hearing, Mr. Tsunis
revealed his complete unawareness about the country in which he would
serve as our Nation's top envoy. For example, he referred to Norway's
head of State as their President, not knowing that the country is led
by a constitutional monarch.
Another Presidential pick, Colleen Bell, for Hungary could not answer
a single question at her Senate hearing about U.S. strategic interests
in that country, but that is OK. I am certain her professional
background as a TV soap opera producer will come in handy while the
crisis in Ukraine continues to unfold.
Inside the beltway, these nominees are known as ``campaign
bundlers,'' partisan political operatives who have each fundraised
hundreds of thousands--if not millions--of dollars for the President's
campaign. Mr. Harper is another example of a campaign bundler wholly
ill-suited to serve in the diplomatic post for which he has been
nominated.
According to the Center of Responsive Politics, which tracks campaign
donations, Mr. Harper is on a list called ``758 Elites.'' These are
donors who combined ``at least $180 million for Obama's re-election
effort.'' That is a quote from the Center of Responsive Politics. Mr.
Harper is classified as a bundler of $500,000 or more, and his
contribution level matched such notables as actor Will Smith, actress
Eva Longoria, and Hollywood producer Harvey Weinstein.
I am not naive as to why some of these ambassadorships are doled out.
Candidly speaking, Presidents from both parties frequently issue these
diplomatic posts as political favors. But I have never before seen an
administration this brazen in transmitting individuals who are so
terribly and fundamentally unfit for foreign service. Traditionally,
according to the retired Foreign Service group, about 30 percent of
ambassadorships go to political appointees. Since the election of 2012,
that is up to 50 percent. Some go to countries that, frankly, deserve
better than someone whose only qualification is whether they raised
$500,000 or more for the campaign of President Obama.
Some of my colleagues will say that what sets Mr. Harper apart from
these other campaign donors is his cultural heritage. They say Mr.
Harper would be the first Native American in history to hold the rank
of U.S. Ambassador. They also say he should be
[[Page S3321]]
rewarded for his work as one of the lead class action attorneys in the
Supreme Court case Cobell v. Salazar.
I truly respect that Mr. Harper would be the first Native American to
serve as a U.S. Ambassador. What concerns me is his character--
particularly his conduct in connection with a matter that could rightly
be described as one of the greatest mistreatments of Native Americans
by the Federal Government in recent memory. That matter is known as the
Cobell case.
In the 1990s hundreds of thousands of Native Americans, led by
Elouise Cobell, entered into a class action suit against the Interior
Department for mismanaging billions of dollars in land assets that were
held in trust for Indian tribes.
During my previous tenure as chairman of the Senate Committee on
Indian Affairs, I worked with my colleague, then-vice chairman Byron
Dorgan, to end the protracted Cobell lawsuit and enact legislation to
settle the case in Congress.
Ultimately, it wasn't until 2010 that Congress finally passed
legislation that compensated the Cobell plaintiffs at $3.4 billion. My
colleagues know that Mr. Harper was the co-lead counsel for the Cobell
plaintiffs and often touted the number of his clients at about 500,000
Native Americans. When the lawsuit was settled, Mr. Harper and his
legal team stood to earn up to $99 million in attorney's fees that were
written into the Cobell settlement legislation and paid for by the
American taxpayer. Let me emphasize: For this good work, Mr. Cobell and
his legal team were going to earn $99 million in attorney's fees.
Without a doubt, the legislation was a massive bonus check for Mr.
Harper and his team, and he and his team have actually sued the Federal
Government to receive another $123 million--more than the $99 million
he already got. Most of the Native American clients will receive about
$1,000 each, and many are still waiting to receive their first payment
to date.
Unfortunately, my Democratic colleagues conveniently ignore that Mr.
Harper served on President Obama's 2009 transition team for Native
American issues while he actively sued the Interior Department. Does it
concern my colleagues that several months after the President installed
his leadership team at Interior and Justice, the administration
essentially fast-tracked the settlement with the Cobell attorneys or
that just 1 year later Congress enacted the $3.4 billion Cobell
settlement legislation as a top White House priority, ending an over
decade-long legal battle? Evidently not.
Now the administration claims there was no wrongdoing or conflict of
interest on the part of Mr. Harper in his service to the President's
transition team, and I have no choice but to take their word for it,
albeit skeptical. But we do know of at least one appalling and
unforgivable incident that has dogged Mr. Harper throughout the
Senate's consideration of his nomination--and rightfully so.
When the Cobell lawsuit was settled and Mr. Harper's legal team stood
to earn tens of millions of dollars, a number of Native American
plaintiffs--Mr. Harper's own clients--raised grave concerns that their
attorneys would receive such a sizable payout. They argued that more of
the Cobell settlement should go to the thousands of Native Americans
who had been wronged by Interior.
Four affected Native Americans banded together and filed a lawsuit to
challenge the Cobell settlement for this and other reasons. One
appellate told the court that ``huge fees awarded to class counsel
often indicate the interests of the absent class members have been
sacrificed to those of the lawyers.'' As a result of this legal
challenge, the court temporarily delayed the Cobell payouts to the
plaintiffs and, of course, to Mr. Harper.
In what can only be described as bullying, the Cobell legal team
fired back at these four Native Americans. They transmitted a letter
dated January 20, 2012, to all of their 500,000 clients that listed the
home addresses and telephone numbers of the four appellants and urged
all of Indian Country to call and harass them for challenging the
Cobell settlement. The letter reads:
Your payments are being held-up by 4 people . . . [each]
believes that you are not entitled to the relief (nor the
payment of your trust funds) . . . This means you will
receive nothing from the settlement: no payment, no
scholarship funds, no land consolidation, and no further
trust reform . . .
Here is the best part. In the letter that was sent to 500,000 people,
it said:
[If] you want to ask them directly about their motives, you
should contact them at the following address or phone
numbers.
I hope my colleagues understand what was done there. These four
Native Americans received harassing calls, death threats, had their
jobs threatened. One had to disconnect their phone. Another was
essentially run off her reservation.
I will submit two articles for printing in the Record at the
conclusion of my remarks. The first is an article from the Missoulian
entitled ``Objectors to $3.4B Indian trust settlement get angry phone
calls,'' which further describes how this letter affected their
personal lives. The second is an article from the Native American Times
entitled ``Cobell Class Members question settlement, attorney
conduct.''
The harassment letter was accessible on the Cobell team's Web site
during the Harper committee hearing. It was on his Web site during the
hearing in the committee, but it was promptly removed the day after I
questioned Mr. Harper about it.
I will also submit for printing in the Congressional Record at the
conclusion of my remarks the previously referenced letter provided that
the contact information of those four individuals be redacted.
At his committee hearing, Mr. Harper adamantly denied any
responsibility for the letter and blamed the strategy entirely on
another Cobell attorney. However, Mr. Harper has since muddied his
story and later admitted he was aware of the letter on the very day it
was transmitted. If he didn't pen the harassment letter or approve it,
as he dubiously claims, he certainly did nothing to retract it or
denounce it until his Senate hearing.
There is also no disputing that Mr. Harper has held himself out and
is overly proud of his status as one of the lead counsels on the Cobell
case.
I would argue that those four Native Americans' human rights were
abused. People such as Mr. Harper can't be a party to or complicit with
a letter attempting to harass Native Americans for exercising their
rights and then expect to obtain the Senate's imprimatur to serve as
our Nation's ambassador on human rights. That is the irony of all of
this. He clearly abused these people's human rights, and now he is
going to be an ambassador on human rights?
Mr. Harper has not sufficiently answered my questions about his
involvement with the harassment letter or how much in legal fees he has
profiteered from Cobell over the years.
I will also submit for the Record his written responses to my hearing
questions which conflict with his verbal testimony about the harassment
letter and other matters.
I can't in good conscience support Mr. Harper's nomination. The
global community faces serious human rights crises, and this is whom
the administration sends to speak on behalf of all Americans, including
Native Americans? I urge my colleagues to vote against Mr. Harper, and
I call upon the administration to transmit a nominee who has an
unblemished record of protecting human and civil rights--a record of
accomplishment and integrity commensurate with this very important
post.
Here is the situation. Mr. Harper will probably be confirmed today on
a partisan vote--on a party-line vote. He won't get 60 votes. He will
probably get 55 or maybe 1 or 2 less. This is another example of a
deprivation that is taking place of my right to advise and consent and
that of every single Member of the minority. This nomination would not
have come to this floor if we still required 60 votes. But, instead, my
colleagues across the aisle have decided to deprive Members on this
side of their right of advice and consent because he will be confirmed,
probably, today on a party-line basis despite the fact of a clear
record of abuse of human rights by a majority here in the Senate.
I tell my colleagues on the other side of the aisle: If we gain the
majority in this Senate as a result of this November's election, I will
do everything in my power to restore their rights as a minority--their
rights of advice and consent. The fact that it was taken away from us
for the first time in the
[[Page S3322]]
history of the Senate is a despicable and black act that will live in
history.
Mr. President, I yield the floor.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Missoulian, Jan. 31, 2012]
Objectors to $3.4B Indian Trust Settlement Get Angry Phone Calls
(By Matt Volz)
Helena.--Carol Good Bear started getting the calls about a
week ago, after the attorneys who had negotiated a $3.4
billion settlement over misspent Native American land
royalties published the phone numbers and addresses of the
four people objecting to the deal.
At first, the resident of New Town, N.D., hung up on the
angry voices at the other end. After 15 calls, she unplugged
her home phone and started screening her cellphone calls.
She said she worries for her safety now that her address is
in the hands of hundreds of thousands of people who might
blame her for holding up their money.
``To put my name out there for the public, I think that's
scary that these attorneys would use this tactic and
intimidate me into dropping my appeal,'' Good Bear said. ``I
don't have protection. If somebody is upset about all this
and comes at me with a gun, what am I supposed to do?''
The attorneys who published the Jan. 20 open letter
represent up to 500,000 plaintiffs in the class-action
lawsuit named after Elouise Cobell, the Blackfeet woman from
Montana who spent nearly 16 years trying to hold the U.S.
government accountable for more than a century's worth of
mismanaged Native American accounts.
The lawsuit claims U.S. officials stole or squandered
billions of dollars in royalties owed for land leased for
oil, gas, grazing and other uses.
Cobell died in October, just months after a federal judge
approved the largest government class-action settlement in
U.S. history.
Under the settlement, $1.4 billion would go to individual
Native American account holders. Some $2 billion would be
used by the government to buy up fractionated tribal lands
from individual owners willing to sell, and then turn those
lands over to tribes. Another $60 million would be used for a
scholarship fund for young Natives.
The settlement took a year to push through Congress, then
months for final judicial approval. After the settlement was
approved, Good Bear and three other people filed separate
objections, each for different reasons.
Those appeals must be heard by a federal appeals court
before any money from the settlement can be distributed, with
the first scheduled to be heard Feb. 16.
The plaintiffs' attorneys, led by Dennis Gingold of
Washington, D.C., wrote in their letter that the ``hopes and
wishes of 500,000 individual Indians'' had been delayed by
those four people. If it wasn't for them, the first payments
would have been made before Thanksgiving, the letter said.
``There is little doubt that they do not share the desires
or care about the needs of the class, over 99.9 percent of
whom support a prompt conclusion to this long-running,
acrimonious case,'' the attorneys wrote.
The letter went on to list the names, phone numbers and
addresses of Good Bear, Kimberly Craven of Boulder, Co.;
Charles Colombe of Mission, S.D.; and Mary Lee Johns of
Lincoln, Neb. The attorneys invited people to ``ask them
directly about their motives'' and cautioned them to ``please
be civil in your communications.''
The letter was published in the ``Ask Elouise'' email that
updates class members on the settlement and also was
published on at least one website dealing with Native
American issues.
Gingold said Monday that he was preparing for oral
arguments and could not comment on the letter.
Good Bear and Johns, who agreed to speak to the Associated
Press, said they believe the letter was an attempt to
intimidate them into dropping their appeals, but it will not
work.
``Obviously they don't know me to think I could be brow-
beaten into quitting,'' Johns said.
Both said they have received phone calls of support
interspersed with the angry ones.
Craven and Colombe declined to comment, referring questions
to their attorneys. Craven's attorney, Ted Frank, said in an
email that he took his concerns to the plaintiffs' attorneys
and they agreed to stop disseminating the letter.
Frank said he was satisfied with that promise and that
attempting to have the judge address whether the letter was
right or wrong would only distract from the appeal.
``Other than a corrective communication and sanctions,
there isn't much else we could get in relief from the court,
and neither is worth the distraction from preparation for
oral argument,'' Frank said.
Each objector is appealing the settlement for his or her
own reasons. Craven and Johns both say the settlement does
not include an accounting for how much money was lost, which
is what Cobell originally set out to accomplish, and that
many class members did not understand that they could have
opted out of the deal.
Johns and Good Bear both object to the class of landowners
that the settlement creates, saying each is different and
their claims should be assessed differently. Johns added that
the tribes should have been involved in the process from the
start, not just individuals.
____
[From Native American Times, Feb. 6, 2012]
Cobell Class Members Question Settlement, Attorney Conduct
(By Dana Attocknie)
Attorneys released names, addresses and phone numbers of the four case
appellants in an email to the public and media Jan. 20
Washington.--Class Counsel for the Cobell v. Salazar class
action lawsuit sent out a letter Jan. 20 to Class Members
throughout Indian Country explaining the reason for the delay
in their monetary payment rests with four Class Members who
are appealing the settlement.
``What they did by sending out this letter is very, very
unethical,'' Mary Lee Johns, Cheyenne River Sioux/Lakota,
said. ``They sent out this email to all the individuals and
listed our names, addresses and telephone numbers. One of the
individuals that appealed is getting death threats and now
they got her address. This is not the way to conduct business
in Indian Country.''
Johns is appealing the settlement along with Carol Eve Good
Bear, Fort Berthold Reservation, and Charles Colombe, Rosebud
Sioux. They are represented by David Harrison, an attorney
based out of Albuquerque, N.M. They are in the early stages
of their brief, which is due to be filed in March with oral
argument set for May 15.
Harrison said the suggestion in the letter, dispersed by
the plaintiff's counsel, that the appellants don't believe
fellow Class Members are entitled to relief or payment from
their trust funds is not true. ``It's not that they're just
trying to make sure that nobody's paid; they're trying to
make sure that this deal is legal,'' Harrison said.
Another appeal is from Class Member Kimberly Craven,
Sissten-Wahpeton Oyate, who is represented by Ted Frank, an
attorney with the non-profit Center for Class Action Fairness
located in Washington, D.C. The Craven brief was complete
Jan. 6 and oral argument is scheduled for Feb. 16 in
Washington, D.C. before a three judge panel.
Frank said Craven believes the settlement is illegal and
it's in the best interest of the Indian community that it be
overturned. He said the Historical Accounting Class is not
giving Class Members an opportunity to opt out if they feel
their right to an injunction is more valuable than the
monetary relief. In addition the structure of the settlement
payments contradict what the D.C. circuit said would be
permissible in earlier Cobell litigation, because it's not
rationally related to the damages Class Members have
suffered, he said.
``So you have a problem that Class Members who have
suffered the most injury are getting the same as or less than
Class Members who have suffered no injury at all,'' Frank
said. ``(Also) There's the problem of conflict of interest
created by the fact that Ms. Cobell negotiated a settlement
that would pay $12.5 million dollars to herself.'' The
beneficiaries of the settlement fall into two groups; the
Historical Accounting Class and the Trust Administration
Class. Harrison's clients also question the fairness of the
Accounting Class and the blanket $1,000 payment everyone
would receive.
``The courts have been saying all this time, and the
plaintiffs have said, the case is about an accounting, we
want an accounting, and now they're saying `Oh heck with the
accounting, just give everybody $1,000 and we'll call it
even,''' Harrison said, adding that some account holders have
a great deal of money go through their account while some
people have very little. ``One hundred and seven thousand
Indians, collectively, only have $15,000 between the whole
bunch of them in their accounts in recent years, but every
one of those 107,000 people is going to get $1,000. . . to
them the settlement probably seems like a very good deal.''
Harrison also said the leftover money to be divided between
land owners is based on a formula that measures how much
money has gone thru a person's account, which would not be
fair either. ``They're not going to be paid out based on how
much (a person) lost or how much you have coming; it's going
to be based on how much you got. The people who got paid
improperly; If they got paid more than they had coming they
get unjustly enriched again and if they got paid less than
they had coming they're going to get victimized again, and
that's just the way the formula works.''
Last year some Individual Indian Money (IIM) account
holders also questioned why their attorneys may receive more
money than them from the $3.4 billion settlement. The Class
Counsel is requesting $223 million, which is 14.75 percent of
the 1.5 million dollars to be dispersed to Class Members.
Lead attorneys for the settlement include Keith Harper, of
Kilpatrick Townsend & Stockton LLP, and Dennis Gingold.
Harper toured Indian Country last year with other Cobell
attorneys explaining the settlement and defended their
request for remuneration. During a March 2010 meeting in
Anadarko, Okla., Harper said the amount requested by the
attorneys is not double the expenses. He then quoted Gingold,
who said they are only asking for what their expenses were,
and at the end of the day it's up to the courts to decide
what they will get paid.
Class Counsel's letter to Class Members stated there is
little doubt the appellants do
[[Page S3323]]
not have the same desires or care about the needs of their
fellow Class Members, and the appellants' behavior does not
seem to be in the best interest of Class Members.
Johns said she hasn't received many calls because of the
letter, but most callers were supportive and one person just
wanted to understand the settlement and the appeals. ``This
has nothing to do with Elouise Cobell, please understand
that. People always use her passing away and all that to try
and make us feel bad, but this has nothing to do with her.
The reason why I did what I did was based upon what I believe
was wrong with the suit,'' Johns said. ``Now it has nothing
to do with the money, it has nothing to do with any of that.
It has to do with the protection. I'm doing it because I
believe that they're opening up the gate to a lot of serious
problems for Indian Country in the next 20 years.''
Johns said she was upset when she initially found out that
IIM account holders were, ``jerked into this class action
suit without our consent'' and also that tribes weren't
involved. She said since the class action was brought about
by four individual Indians there was not the unique
government-to-government relationship. She feels
individualizing Indians will help break up the tribes and
references the Dawes Act to illustrate her point. ``You know
the intent of the Dawes Act was to break up these tribes so
that's one of the reasons why I was very concerned,'' she
said. ``We're standing basically by ourselves without the
protection of our tribe.'' Another concern is the land. Johns
said the settlement was originally supposed to be about an
accounting and not about the land. She said the lands were
severely mismanaged by the federal government and people put
too many cattle on their land so it was overgrazed and ended
up with prairie dogs and the grasses were just not the same.
``. . . the biggest rip off was when the federal government
sat down with the Cobell lawyers and made this deal because
they were basically getting away free for this amount of
mismanagement . . . ,'' Johns said. ``The federal government
is winning on this one. They got home free without ever
having to restore lands, and they didn't ever have to pay
individual Indians for mismanagement of their land. They made
this deal, and to me, it's an unholy deal that these
attorneys have negotiated with the federal government so that
they could collect $99 million dollars. So who loses on this?
They keep saying, `Oh, you know, you're going to get this
money.' What kind of money? You know maybe everybody is going
to get maybe $1,200 dollars . . . and yet look at what we're
losing.''
Johns said the Cobell attorneys should have made sure the
lands were restored back to their original state before an
agreement was made. She said Class Counsel sat down with the
federal government when they originally lost the case and
that's when the government said it would throw in $3.5
billion if an Administration Class was included for the
mismanagement of lands, plus some of the money would be used
to purchase lands that were fractionated shares. ``Now,
there's another part of this that people didn't understand,
was this whole $1 billion dollars that they're giving the
federal government to buy the land back. That's a bait and
switch deal,'' she said. ``Before that land that they
purchased for $100 can be given back to your tribe, your
tribe has to pay the federal government $100. So basically,
all it did was give the federal government $1 billion dollars
to buy Indian land . . . to me it's a shell game and the
Indians are the ones who are losing out.''
Johns other concerns are: the settlement is a complicated
process, the Bureau of Indian Affairs could not participate
in explaining to the individual Indians what their rights
were, and it was not clear how to opt out. She said there are
cases, with members of the Three Affiliated Tribes for
example, where Indian people are seeking justice in court but
because of the class action settlement they cannot seek a
claim against the federal government. ``If you didn't opt
out, you're forever barred from ever going to court on
mismanagement,'' Johns said. ``One of the things that the
federal government wanted to do was hurry up and get this
done so they could wash their hands of us. They opted out.''
Frank also mentioned the case of Ramona Two Shields v.
United States, where ``the government is arguing that the
Cobell settlement is preventing these Indians from getting
their fair recovery.''
Johns also questions who the lead plaintiff is now. In
other words who is directing Class Counsel? Lead Plaintiff
Elouise Cobell died Oct. 16, 2010. The remaining plaintiffs
are James Louise Larose, Thomas Maulson and Penny Cleghorn.
Johns said people may say she's being unfair by appealing the
case but questions who is looking out for the Indian people--
``People like the four of us that really truly want to make
sure that this is good for the people,'' she said.
``Everybody's glad that I did it,'' Johns said. ``My tribe
passed a resolution that was totally against the Cobell
(class action suit/settlement). I feel very confident that
what I'm doing is in the best interest of . . . my family and
those who got up and objected to Cobell all along.''
Cobell spokesperson Bill McAllister told Native Times that
Class Counsel is not commenting on the case.
____
From: [email protected]
Sent: Friday, January 20, 2012
To: Mary Zuni
Subject: Ask Elouise Letter
Dear Indian Country: Following the passing of our leader
and friend, Elouise Cobell, Class Counsel is responding to
your continuing questions and concerns regarding the
settlement of the Cobell lawsuit.
What is the current status of the settlement?
Unfortunately, notwithstanding the hopes and wishes of
500,000 individual Indians and despite Class Counsel's best
efforts, the settlement has been delayed by 4 class members,
each of whom is challenging the landmark settlement in the
U.S. Court of Appeals for the D.C. Circuit. We expect that
these appeals will be resolved in another 6 months, provided
that no appellant seeks further review in the Supreme Court.
But for these appeals, your Historical Accounting Class
payments would have been distributed before Thanksgiving
2011, and it is likely that your Trust Administration Class
payments would have been made by Easter 2012.
However, because of the appeals, your Historical Accounting
Class and Trust Administration Class payments cannot be made
until after the appeals have been resolved, provided that we
prevail on appeal. No one knows when that will occur.
Historical Accounting Class payments should be made within a
few weeks after the appeals are decided. Trust Administration
Class payments should be made within about 6 months after you
receive your Historical Accounting Class payment.
Class Counsel understands your increasing frustration and
concerns. We know the difficulties many of you face and we
have spoken to hundreds of you who are in extremis this
winter season. It is with our utmost sympathy and
disappointment that we share this unfortunate news.
Who is appealing? And, why are they appealing? Your
payments are being held-up by 4 people: Kimberly Craven
(Sissten-Wahpeton Oyate), Charles Colombe (Rosebud Sioux),
Carol Eve Good Bear (Fort Berthold Reservation), and Mary Lee
Johns (Cheyenne River Sioux). Notably, Colombe, Good Bear and
Johns are represented by David (Davey) Harrison, an
Albuquerque lawyer and former BIA employee.
Their reasons vary slightly, but are the same on one
fundamental point. At bottom, each believes that you are not
entitled to the relief (nor the payment of your trust funds)
that has been provided in the settlement agreement
notwithstanding a century of abuse, malfeasance and breaches
of trust by the United States government. Each of the
appealing class members has filed papers that will kill the
settlement if any one of them prevails on appeal. This means
that you would receive nothing from the settlement: no
payment, no scholarship funds, no land consolidation, and no
further trust reform.
Craven has railed against the settlement since it was first
announced over two years ago, going so far as to claim:
``after 14 years of acrimonious litigation, the Cobell
plaintiffs are entitled to no monetary recovery whatsoever
from the courts.'' (http://thehill.com/blogs/congress-blog/
judicial/112807-bailing-out-the-smartest-guys-in-the-room).
Mary Johns has sought to remove the judge who approved the
settlement, Thomas F. Hogan. There is little doubt that they
do not share the desires or care about the needs of the
class, over 99.9% of whom support a prompt conclusion to this
long-running, acrimonious case.
Why would anybody appeal? I'd like to contact these class
members, how do I do that? We know of no explanation for
their behavior that is consistent with your best interests.
However, if you want to ask them directly about their
motives, you should contact them at the following address or
phone numbers: Kimberly Craven, Mary Lee Johns, Carol Eve
Good Bear, Charles Colombe.
Notwithstanding your frustration and difficulties, if you
choose to contact any of the 4 appellants, please be civil in
your communications.
Isn't there something you can do to speed up this process?
No. Class Counsel has reached out to the 2 attorneys who
represent the 4 appealing class members to resolve or settle
whatever issue they may have with the settlement. However, we
have been rebuffed or ignored each time. Unless each of the
appealing class members withdraws his or her appeal, there is
no way to shorten the judicial review process.
Haven't you been paid? Class Counsel has not been paid. We
are in the same position that you are in--we will not be paid
until the appeals have been resolved.
Prior Ask Elouise letters can be found on the settlement
website: http://cobellsettlement.com/class/ask_elouise.php.
There is also a ``frequently asked questions'' section to
answer the most common questions received: http://
cobellsettlement.com/press/faq.php.
Kind Regards,
Class Counsel,
Cobell v. Salazar.
____
Questions for the Record Submitted by Senator John McCain for Keith
Harper, Nominated to be U.S. Representative to the U.N. Human Rights
Council Senate Foreign Relations Committee Hearing on September 24,
2013
1. How long did you serve as ``co-class counsel'' on
Cobell?
The Cobell class was certified on February 4, 1997, and so
I began to serve as class counsel on that date.
[[Page S3324]]
2. On what date did you first learn about the January 20,
2012 ``Ask Elouise'' letter?
I learned of the January 20, 2012, ``Ask Elouise'' letter
on January 20, 2012, after it was released.
3. Did you receive a draft or have prior knowledge of the
January 20, 2012 letter before it was published?
No.
4. As co-class counsel, was it your responsibility to
review documents and communications to plaintiffs including
the January 20, 2012 ``Ask Elouise'' letter, prior to
transmission or publication?
No. Lead Counsel--who is a solo practitioner not part of
Kilpatrick Townsend & Stockton LLP (``Firm'')--was
responsible for determining who among the litigation team
were responsible for which tasks. Under this arrangement, the
principal attorneys each had their own areas of
responsibility. The ``Ask Elouise'' letters were not part of
my responsibilities.
Lead Counsel did not circulate the January 20, 2012, ``Ask
Elouise'' letter either to me or, to the best of my
knowledge, to any of the lawyers in the Firm prior to its
publication.
5. How did you become aware of the January 20, 2012 ``Ask
Elouise'' letter?
I became aware of the ``Ask Elouise'' letter on January 20,
2012, after the letter's public release, when a lawyer
representing one of the appellants sent an e-mail in
objection.
6. When the letter became public, why did you reportedly
refuse to respond to press inquiries concerning the letter?
At the time of the letter's release, we were in active
litigation. Although I personally did not support the letter,
I was told by a Firm colleague that the Class
Representatives, at the time, did support it. Accordingly, I
was duty bound to not comment in a manner contrary to the
letter and therefore could not express my reservations
publicly about the re-publishing of the contact information
of appellants.
7. What is your understanding of how the January 20, 2012,
``Ask Elouise'' letter was transmitted to plaintiffs? By
mail, online, print publishing, email, or other?
At the time of the September 24, 2013, hearing, my
understanding was that the letter was posted on January 20,
2012, on the internet site www.indiantrust.com and that it
had not been mailed or emailed to the entire class of 500,000
individuals. I have since confirmed that the letter was not
emailed or mailed to the entire class of 500,000 individuals.
Rather, I have now been informed that it was emailed by the
claims administrator at the direction of Lead Counsel's
litigation consultant, on January 20, 2012, to a listserv
comprised of those who had requested periodic electronic
updates on the litigation. It was also posted on the
indiantrust.com website at approximately that same time.
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.
8. Is it correct that you would not receive attorney's fees
under the Cobell settlement legislation until the appeal
discussed in the January 20, 2012 ``Ask Elouise'' letter was
resolved?
Yes.
9. Is it correct that one of the appellants identified in
the January 20, 2012 ``Ask Elouise'' letter appealed the
settlement because she determined that plaintiff attorneys
were seeking excessive attorney's fees?
No.
10. What is your connection to the website, ``Indian Trust
Settlement'' (www.IndianTrust.com)?
My connection to the website was, and remains, of limited
scope.
The website www.indiantrust.com is owned by a litigation
consultant to the Lead Counsel. 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. During that time,
the website published material relevant to the case, such as
court filings. I and other Class Counsels worked on briefs
and other materials, which were filed by paralegals or the
litigation consultant. After filing these documents, the
litigation consultant to Lead Counsel published them to the
website.
I understand that the website is presently administered by
the Garden City Group (GCG), the official claims
administrator for the Cobell case, though the litigation
consultant maintains ownership.
11. On what date was the January 20, 2012 ``Ask Elouise''
letter (www.indiantrust.com/elo/1_20_12) removed from the
Indian Trust Settlement website?
After learning of the letter's release, I expressed my
misgivings about publishing the letter, especially the
contact information of the appellants, to both other Class
Counsel and other professionals at Kilpatrick Townsend. I
urged my colleagues to facilitate removing the letter and to
avoid posting material that could be construed to suggest
harassment of appellants. On or around January 21, I was
informed by colleagues that discussions about removing the
letter from the website would be held with one of the
appellant's attorneys who had objected to the letter. I
understand from GCG that on January 22, 2012, the litigation
consultant for Lead Counsel requested that GCG remove the
letter from the website. On or about January 22, I was told
by a Firm colleague that the letter was removed from the
website. Additionally, my colleagues and I checked the
website at that time and there found no link to the letter.
Thus, at the time of my testimony on September 24, 2013, I
was under the impression that the letter was indeed not on
the Indiantrust website.
After I was informed on September 24, 2013, that the letter
was still available through an Internet search, my law
partners requested that GCG delete the letter so that it
would be unavailable through an Internet search. I have been
told that GCG did so on September 24, 2013.
12. Why was the January 20, 2012 ``Ask Elouise'' letter
removed from the website when it was and was it removed under
your request or direction?
After I was informed on September 24, 2013, that the letter
was still available through an Internet search, my law
partners immediately requested that GCG delete the letter so
that it would be unavailable through an Internet search. I
have been told that GCG did so on September 24, 2013.
13. What is your interpretation of the cap on fees,
expenses and costs in the Claims Resolution Act of 2010 for
Cobell v. Salazar?
While Congress considered capping fees as an amendment to
the Claims Resolution Act, it ultimately decided not to do
so. The Class Representatives, our clients, did have an
agreement with Defendants that neither side would appeal any
fee award between $50 and $99.9 million. In addition, under
this same agreement, Class Representatives agreed not to
affirmatively assert Counsel be paid more than $99.9 million
in attorneys' fees.
14. Were you part of a petition to federal courts for $223
million in attorney's fees in the class action lawsuit,
Cobell v. Salazar?
The Class Representatives, our clients, decided that,
consistent with the Agreement with Defendants, there would be
an express request for $99.9 million in fees. The Petition
for Fees specifies that ``Plaintiffs hereby assert a fee of
$99.9 million for Class Counsel's work through December 7,
2009.'' The Petition went on to explain that the Court had
the discretion to award more under the controlling law, but
that both Plaintiffs and Defendants agreed not to appeal if
the award was between $50 and $99.9 million. The Petition
also stated, consistent with client direction, that in
comparable cases, awards ranging around $223 million would be
consistent with controlling law. I was one of the counsel who
signed this petition on behalf of our clients. The Court
ultimately awarded the $99 million amount asserted by
plaintiffs in the petition for fees.
As I understand it, the Class Representatives, especially
Ms. Elouise Cobell, believed that it was critically important
and consistent with the best interest of the Class to seek a
fee award in accord with fee awards for non-Indian class
actions of similar size and complexity. She expressed concern
that otherwise attorneys would be reluctant to represent
Native American plaintiffs without financial means who are
deprived of their rights by the federal government or other
entities. This was unacceptable to Ms. Cobell and she was
particularly sensitive to this point because, as she made
clear on the record, she had grave difficulties finding
lawyers to bring the Cobell case in the first place.
15. Are you associated with a petition for additional fees
related to the Cobell settlement? If so, for how much?
No.
16. Approximately how many hours did you bill your clients
for work in relation to Cobell at Kilpatrick and Native
American Rights Fund (NARF)?
As a partner with Kilpatrick, I worked a total of 4,837.7
hours on Cobell through June 30, 2013.
I am no longer at NARF and I do not have access to this
information, however, NARF's court filings indicate I worked
19,671 hours on the Cobell case.
17. Approximately how much in fees have you collected to
date in relation to Cobell?
On July 27, 2011, District Judge Thomas Hogan awarded
plaintiffs $99 million in attorney's fees. Of that amount,
Judge Hogan awarded approximately $85 million to be
distributed, after all appeals were final, to Class Counsel.
Class Counsel included Dennis Gingold, Thaddeus Holt, and
Kilpatrick Townsend & Stockton LLP. The remainder of
approximately $14 million was set aside because other counsel
who had worked on the case in times prior were seeking their
own award, which in aggregate amounted to approximately $14
million. The Court later ordered that these fee issues be
mediated but thus far the mediation has not been fruitful.
18. What fees did you secure from tribal governments for
work on the class action lawsuit, Cobell, or any other
lawsuit against the federal government for mismanagement of
tribal trust assets? Please identify each tribal government,
the type of fee, and the rate that was negotiated for each.
We did not receive any payment for fees from tribal
governments for work on the Cobell case. As for tribal trust
lawsuits, the Firm received the fees as follows for our four
tribal clients:
Ak-Chin Indian Community (AZ) agreed to pay the Firm hourly
fees on a monthly basis so there was no contingency fee.
Tohono O'odham Nation (AZ) agreed to pay discounted hourly
fees on a monthly basis plus a 6% contingency fee at the end
of the case. The amount of that fee paid to the Firm at the
end of the case was $1,425,000 (this was in addition to the
fees paid each month since 2006).
Initially, in 2006, the Passamaquoddy Tribe of Maine agreed
to pay fees in an identical
[[Page S3325]]
manner as the arrangement with Tohono O'odham. However,
within a few months of our engagement, the Tribe asked us to
change the arrangement so it would not have to pay the
discounted hourly rates on a monthly amount. Accordingly, we
modified the agreement consistent with the client wishes so
that compensation for attorneys' fees was exclusively through
a contingency fee. Unlike other clients, the Passamaquoddy
Tribe made no payment of fees on a monthly basis throughout
the litigation, thus the contingency fee agreed to was 15%.
This is well below the standard of 30%-40% for comparable
contingency fee arrangements. When the case settled, the
amount paid to the firm was 15% of the settlement or $1.8
million. In an October 1, 2013, letter to Indian Country
Today, Passamaquoddy Chief Joseph Socobasin on September 24,
2013 confirmed that the Tribe ``was very happy with the
settlement representation prepared by Kilpatrick Townsend &
Stockton firm.''
The Salt River Pima-Maricopa Indian Community (AZ) has not
given the Firm permission to disclose the specifics of its
fee arrangement. However, we can disclose that they paid
monthly fees with a contingency at the end similar to Tohono
O'odham.
19. In your negotiations with tribal governments over fees
referenced above, were tribal governments made aware that the
defendant, the federal government, would be responsible for
covering or directly paying their fees to you?
Yes. Two tribes--the Passamaquoddy Tribe and the Tohono
O'odham Nation--agreed to have the funds directly paid to the
Firm. This was not unusual and indeed the model used in other
cases such as the Osage litigation (represented by another
Washington, D.C., based law firm). The Tribes had full
ability to opt for non-direct payment to the attorneys. The
Salt River Pima-Maricopa Indian Community, for example,
decided to keep the terms of counsel fees confidential and
therefore did not seek direct payment to counsel. For the
tribes that did authorize direct payment, they did so
expressly. Both the Passamaquoddy Tribe and the Tohono
O'odham Nation expressly authorized direct payment to our
Firm in tribal council resolutions approving the settlements.
20. Please identify which tribes you negotiated fees
referenced in the above questions between 2008 and 2010?
None of the fees negotiated for tribal trust cases were
negotiated in this time frame. All were negotiated in 2006 or
early 2007.
21. Did you negotiate Cobell fees at different rates for
different tribes? Why is there a variance in rates?
No. Cobell fees were not negotiated for or with tribes. The
fee in Cobell was determined by the court and paid out of the
common fund. Therefore, all plaintiffs in the Cobell case,
irrespective of tribal affiliation, were treated the same.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
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