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Cobell Lawyers Up the Ante In Demand for More Money

How much money is fighting the good fight worth? And what happens when those who are fighting that fight take steps that alarm – and could hurt – the very people they are fighting for?

For years, the lawyers who fought on the Indian side of Cobell v. Salazar have worked to protect Indians from a government that seemed to want to swindle them at every turn. Now that the government has agreed to pay up via a $3.4 billion settlement, some Indians feel like their lawyerly protectors are doing the swindling. Congress is backing those Indians up, but the lawyers are acting like it’s all a political ploy. The problem for the lawyers is there’s not a whole lot of murky ground here—all the legal tap dancing in the world can’t distort the facts.

Two of the main lawyers for the plaintiffs, private practitioner Dennis Gingold and Keith Harper, of Kilpatrick Townsend & Stockton , have done some talking to the mainstream press lately, leaving questions unanswered about their intentions. In a blog entry posted on Legal Times dated March 8, the following details are presented as a result of interviews with the lawyers: “Harper and Gingold, who have both traveled in recent weeks to meet with potential beneficiaries, said the fee petition is not the hot topic. Potential class members want to know more about how to participate in the settlement, not how much the lawyers are getting paid, Harper said.

“Still, he said there have been a handful of questions about fees. But the dialogue, Harper said, has not been hostile. ‘I think beneficiaries understand that to get attorneys dedicated to working on a matter, as they were in this case, they ought to be compensated fairly. They get that point.’”

But some do not get that point, nor do they agree with the lawyers' views of fair compensation. Indian Country Today Media Network has tried numerous times over the last few months to talk to Harper on-the-record to get his thoughts on concerns that have been raised by Indians and others about the case, including lawyers' fees, but he hasn’t responded. His silence on the matter is notable, since he’s responded in the past to non-Cobell matters for ICTMN articles. Gingold has responded more frequently, but not to recent requests about lawyers’ fees.

The issue of lawyers’ fees has been a hot topic involving Cobell since the settlement was first announced in December 2009. It indicated that the lawyers would receive up to $100 million for their work, and no less than $50 million. It didn’t take long for Indian beneficiaries to figure out that a substantial majority of them would receive less than $2,000, while a relatively few lawyers would get exceptionally rich.

Even given that concern, some Indians chose not to argue with the numbers—after all, the lawyers had been working for 14 years to do the seemingly impossible. The lawyers helped those feelings along, putting out the argument that no lawyers would want to take on future Indian country cases if the lawyers in Cobell didn’t get paid well.

Then, in December 2010 after President Barack Obama signed the deal into law, the other shoe dropped, with the lawyers filing a claim with the U.S. District Court of the District of Columbia saying that they deserved $223 million, and that the overseeing judge could reject the earlier settled upon number.

Department of Justice officials were angry, soon asking Judge Thomas Hogan to grant no more than a $50 million award to the lawyers, and adding in court papers that the requests have been “grossly excessive.” And so were politicians on both sides of the isle, including retired Chairman of the Senate Committee on Indian Affairs Byron Dorgan, who told ICTMN in February that the “nearly one-quarter of a billion dollars” the lawyers are requesting would have “never gotten through Congress in the first place” had the lawyers been clear with their intentions from the outset.

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Some Indians were angry, too, including Richard Monette, an associate professor of law at the University of Wisconsin and Turtle Mountain Band of Chippewa citizen, who noted that the Cobell lawyers actually only won $455 million in the trial court, and then the appeals court threw that figure out of court and instead ruled that an accounting of Indian trusts could and must be done. “As a result, they won nothing—zero,” said Monette. “At that point the Cobell lawyers’ option was to appeal to the Supreme Court. They filed an intent to appeal to the Supreme Court, but then did not pursue it, choosing instead to cut a deal with Interior.

“Therefore, they won nothing. Rather they convinced Interior and Congress to pay them well in exchange for sweeping an injustice to Native people under the rug. Now they want $223 million dollars, not for winning a case, but for negotiating behind closed doors for six months. What a nice payday.”

Republican lawmakers in the House, including Rep. Don Young, R-Alaska, chairman of the Subcommittee on Indian Affairs, filed legislation in early March aimed at limiting the lawyers’ fees to $50 million. The bill has been referred to the House Judiciary Committee and to the House Committee on Natural Resources.

Gingold and Harper are now painting the legislation as politically motivated. “For some politicians on the more conservative side, it’s easy to demagogue plaintiffs’ lawyers,” Harper told Legal Times. “It’s an easy political shot to take with few consequences.” “Doc Hastings wanted to kill the settlement before, and he wants to kill it now,” Gingold told The Billings Gazette, referring to the Republican chairman of the House Natural Resources Committee, which includes the Indian subcommittee.

Young, who’s children and grandchildren are Alaska Native tribal citizens, is unhappy that the lawyers are saying the congressman is playing a political game, while the lawyers are framing themselves as being the noble ones—even though it’s the lawyers’ actions that would take a substantial amount of money away from the Indian beneficiaries of the case.

“Mr. Gingold and company are trying to divert attention from what they are doing and mislead their clients into thinking this is a political issue when it’s actually about Gingold and his colleagues trying to take money the lawyers didn’t earn,” Young said. He is primarily concerned that the plaintiffs’ lawyers misled Congress and their Indian clients, and he wants to examine why plaintiffs failed to disclose information that he says Congress and affected Indians had a right to know about.

As for the implication that the lawyers’ fees are somehow not important in Indian country, Young said the idea to limit fees at $50 million came from the recommendations of individual Indians as well as tribal leaders, and prominent tribal organizations, including the Affiliated Tribes of Northwest Indians, the Great Plains Tribal Chairmen’s Association, and the National Congress of American Indians.

Further, Young asked, “Why has Gingold never disclosed the contingency fee agreement under which he’s seeking $223 million to the class members who would be forced to pay it?”

On that point, Gingold and Harper are keeping mum. Harper told Legal Times that contingency fee documents are not typically made a part of the official record in class actions. “Is there a reason to treat this case different from other cases? In our mind, there isn’t,” he was quoted as saying. But for Indians, long known to have a special political status in the United States, there is all the reason in the world.