WASHINGTON – In a July 30 notice filed by the lawyers for the plaintiffs of the $3.4 billion Cobell settlement, they chastised lawyers with the Native American Rights Fund (NARF) for working on behalf of tribes in trust cases beginning in 2006, arguing that this representation created a conflict of interest, which is one reason they believe NARF lawyers should not be awarded any contingency fees for their role in the case. But evidence suggests that Cobell lawyers with the Kilpatrick Townsend & Stockton law firm participated in the same practice on which they have been critical of NARF.
Press reports indicate that the firm represented at least three tribes that reached trust settlements with the Obama administration in April 2012. The Star Democrat in Easton, Maryland reported in June that several of the firm’s partners represented the Passamaquoddy Tribe, the Salt River Pima-Maricopa Indian Community, and the Tohono O'odham Nation of Arizona in those settlement proceedings. Those tribes received approximately $40 million under that settlement, but it hasn’t been disclosed how much the firm received for its representation.
Keith Harper, a partner with Kilpatrick Townsend & Stockton, was one of the signatories of the July 30 notice filed with the U.S. District Court for the District of Columbia that rebuked NARF for representing tribes in that same tribal trust case. A May 2011 filing that preceded the notice, also signed by Harper, indicated that the Cobell lawyers believe that NARF’s representation of the tribes presented “serious potential and actual conflicts” to the individual Indians involved in the Cobell case.
David Coventry Smith, William Dorris, and Michael Alexander Pearl, all of Kilpatrick Townsend & Stockton, are also listed as signers of that 2011 brief decrying NARF’s actions. Smith was singled out in the Star Democrat’s report for his work on the tribal trust case, telling the paper that it was “gratifying to see a very favorable resolution" in the tribal trust case. He did not mention that his firm had previously raised concerns that said NARF was in conflict for representing tribal trust clients, while his firm concurrently represented both tribal interests and individual Indians’ interests in the Cobell trust case.
Smith did not disclose in the report how much he was paid in the tribal trust case, but he was quoted as saying that his “plans are to return to construction and business litigation and hopefully hang around Easton [Maryland] and not travel so much.”
Several lawyers with Kilpatrick Townsend & Stockton, as well as lead lawyer for the plaintiffs Dennis Gingold, a private practitioner, have previously argued that they deserve over $200 million for their work in the Cobell case. The terms of the settlement allow them to collect approximately $100 million, but they have argued that that amount is too low. The federal government has argued against their requests for more money.
Most individual Indians involved in the case will receive less than $2,000 under terms of the settlement.
Why Kilpatrick Townsend & Stockton should not be punished at least in some part on contingency fees in the same way that the firm has argued NARF should be punished is not clear.
Gingold defends the firm’s work, saying that he believes it properly informed lead plaintiff Elouise Cobell and himself of their tribal representation in the other case.
“In advance of Kilpatrick Townsend's representation of tribes, unlike NARF, Kilpatrick Townsend addressed to the satisfaction of Ms. Cobell and me all potential and actual conflicts issues that we identified relevant to the individual Indian trust beneficiaries and tribes in trust litigation,” Gingold told Indian Country Today Media Network. “Also, unlike NARF, Kilpatrick Townsend's representation of four tribes did not reduce or otherwise compromise its commitment to the Cobell litigation and its settlement.”
While Gingold has previously raised specific concerns over NARF’s payment from tribes, and he and the other Cobell lawyers attempted to calculate how much they made in the tribal trust case, he has not expressed the same curiosity over how much money Kilpatrick Townsend & Stockton received from representing tribal interests.
“I have no idea what Kilpatrick Townsend will be, or has been, paid for its representation of 4 tribes in the settlement of their trust litigation,” Gingold said in a follow-up e-mail. “I don't even know if the firm has settled each of their tribal trust cases. Nor do I know the identities of each of the KT lawyers who have worked on those cases. What I do know – which is the most important point – is that KT's representation of individual Indians has not been compromised as a result of its representation of tribes. Unfortunately, NARF walked away from its individual Indian clients more than 6 years ago when it elected to represent more than 40 tribes in enforcing tribal trust claims against the government. KT did not.”
Harper and Smith have not responded to requests for comment.
John Echohawk, executive director of NARF, said that his organization expects to file a response to the Cobell filing “soon.”
The final decision on lawyers’ fees will be made by Judge Thomas Hogan, of the U.S. District Court for the District of Columbia.
In reviewing the situation, Matthew Fletcher, director of the Indigenous Law Center at Michigan State University, said, “It's sad that what people might remember most about the Cobell litigation is how much the lawyers got paid.”