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Cobell and NARF Lawyers Battle Over Money

WASHINGTON – The lawyers for the Indian plaintiffs in the $3.4 billion Cobell settlement have filed a notice in federal court that says they do not want lawyers with the Native American Rights Fund (NARF) to receive contingency fees for that organization’s role in Indian trust legal proceedings related to the lawsuit.

The notice, filed July 30, says that NARF lawyers have already received a substantial amount of money through their representation of tribes in a separate tribal trust case, and it makes the case that the NARF lawyers left the Cobell suit in 2006 without the consent of the Cobell class representatives.

Cobell lawyers believe that NARF’s representation of the tribes presented “serious potential and actual conflicts” to the individual Indians involved in the case, according to a May 2011 filing on the matter.

NARF is a non-profit organization that provides legal representation and technical assistance to tribes, Native organizations and individual Indians throughout the nation. Officials there said they could not comment on pending litigation, but NARF lawyers have previously argued in court documents that they continued working on the case after 2006, and that they deserve more than $8 million for that work. They have argued, too, that nothing in their agreement in an engagement letter between them and the lead plaintiff in the case prevents them from seeking this reimbursement.

NARF initially began working on the Cobell case in 1996 after lead plaintiff Elouise Cobell contacted and met with John Echohawk, executive director of NARF, according to court documents. Cobell passed away in October 2011.

“One of the primary reasons for plaintiffs’ opposition is that, in lieu of continuing to fulfill its obligations as attorneys for plaintiffs, NARF instead chose in 2006 to represent several tribes in actions against the United States similar to this case,” the notice says.

“There exist serious potential and actual conflicts in representing both tribes and individual Indians in trust litigation,” the lawyers wrote in a brief filed last year on this issue. “NARF has never denied those conflicts, nor can it.”

The new notice adds that NARF has already received “substantial fees…from representing the tribes instead of continuing to represent these plaintiffs.” It says that of the 41 tribes NARF represented in the tribal trust litigation, 23 tribes have settled with the government for an aggregate total of nearly $350,000,000.

The notice notes that the Nez Perce Tribe recently announced that it paid NARF $3 million of its $33,693,000 settlement, which equates to approximately 9 percent of the Nez Perce settlement. While NARF’s fees in representing the other tribes remains undisclosed, the notice deduces that “if that 9 percent NARF fee is applied to the aggregate amount of all 23 settlements shown on Exhibit 1, NARF’s fees exceed $31,000,000.”

The notice also says that the NARF lawyers accepted the tribal cases without the consent of the Cobell class representatives.

“[B]y accepting these tribal representations without the consent of the Class Representatives and dropping the Cobell plaintiffs at a critical juncture in this litigation in order to represent the tribes, NARF put itself in the lucrative position to receive much greater fees than it could have ever hoped to receive in this litigation, where NARF expressly had disavowed contingent fees and had entered into a written engagement with the lead plaintiff in this litigation that does not provide for contingent fees,” the notice says.

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“Plaintiffs respectfully request that the Court consider this new information in deciding NARF’s Petition for Attorneys’ Fees and Costs,” the notice concludes.

The brief was filed with the U.S. District Court for the District of Columbia by the lead lawyer in the case, Dennis Gingold, and Keith Harper and William Dorris, lawyers with Kilpatrick Townsend & Stockton.

In an interesting side note related to the financial questions and conflicts surrounding lawyers in this case, Harper, a Cherokee partner with the firm, has played a major role in organizing several campaign fundraisers for President Barack Obama and worked on his transition team. He has performed those services for Obama at the same time as advocating for the Indian plaintiffs in the case, which would seem to be a conflict of interest, since the case is being settled with the Obama administration.

The new filing is likely to cause increased scrutiny of the requests for more money from all lawyers involved in the case.

The Cobell lawyers have already received strong rebukes from some parts of Indian country for requesting larger fees for themselves. Under the parameters of the case, they are due to make approximately $100 million, according to court filings, but they have made the case that they are due much more than that due partially to their long work on the case with little remuneration.

While the lawyerly bickering provides an interesting sideshow, most individual Indians involved in the case will receive less than $2,000 if it successfully proceeds.

“The Cobell class members opposed NARF's fees for the reasons set forth in plaintiffs' opposition brief,” Gingold told Indian Country Today Media Network in response to questions about the new filing. “In stark contrast, no one challenged the reasonableness or propriety of class counsel's fees on appeal.” Four Indian appellants have appealed the case on other reasons, however.

In a previous court document, the Cobell lawyers said that NARF agreed in 1996 to “be paid for its work on an hourly basis from funds contributed by foundations and others for purposes of the litigation.”

Cobell lawyers also said in that earlier brief that NARF did not want a contingency fee agreement, because officials there feared that could harm the organization’s tax-exempt status. At the same time, the Cobell lawyers said that NARF conducted an aggressive fundraising drive to supposedly fund their role in the Cobell litigation. They said that Elouise Cobell later “found it difficult to raise money for the litigation, finding that donors had already contributed funds to NARF to support its work in these proceedings…

“Because of NARF’s extensive fundraising efforts, Ms. Cobell was unable to pay the lead attorneys on a current basis, resulting in their agreement to proceed on a contingent fee basis.”

Gingold said that the federal government has also opposed fees requested by NARF.

The Cobell settlement was first announced as a negotiated deal between the Obama administration and the lead Indian plaintiffs in December 2009. It has since received approval by Congress and the president, as well as the court. The four Indians who unsuccessfully appealed various parameters of the settlement earlier this year are deciding whether to re-file.