[Congressional Record (Bound Edition), Volume 160 (2014), Part 7]
[Senate]
[Pages 9367-9372]
[From the U.S. 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 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

[[Page 9368]]

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 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

[[Page 9369]]

     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 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

[[Page 9370]]

     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.
       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?

[[Page 9371]]

       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

[[Page 9372]]

     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 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.

                          ____________________