The conventional wisdom of many Native American-focused policy officials is that Keith Harper, a Cherokee Nation citizen and a lawyer with Kilpatrick Stockton who helped settle the long-running Cobell lawsuit, should be confirmed by the Senate as a human rights ambassador to the United Nations as quickly as possible.
“Keith Harper—we really need to have [him] at the State Department as we plan for the World Conference on Indigenous Peoples,” said Jackie Johnson-Pata, director of the National Congress of American Indians, to a gathering of the United South and Eastern Tribes on February 5 in Arlington, Virginia. Her view is common among Harper’s lobbyist and lawyer friends in Washington, D.C., as well as among tribal leaders who have had positive interactions with him and his firm. Several of these tribal leaders sent letters of support for Harper to the Senate Foreign Relations Committee in recent months as the committee twice considered his nomination – first last September, then in February – and approved it both times narrowly along party lines.
There is a counter narrative, too—one that senatorial supporters and detractors of the Indian lawyer may have missed thus far, and one that has implications as to whether Harper should be confirmed by the full Senate: With his nomination now awaiting consideration by the upper chamber, some Native Americans say he should be held accountable for his lack of positions on a number of Indian human rights issues over his long legal career.
“I’ve personally never heard Keith saying anything substantial about Indian civil rights,” says Richard Monette, a law professor with the University of Wisconsin and former chairman of the Turtle Mountain Band of Chippewa Indians. “Besides the Cobell case, which made him and his firm very rich, he has been absent on most Indian issues—frankly, I’ve never even heard him even be a proponent of tribal sovereignty. Where has he been on Native voting rights and racism in the states toward Indians?”
While John Page, director of communications with Kilpatrick Stockton, has said Harper is not allowed to comment publicly on any matters during his nomination process, Harper’s continuing silence does not sit well with indigenous advocates who have questions about his views on meaty Indian-focused human rights topics, including tribal disenrollment and due process issues, limited tribal immunity from U.S. constitutional restrictions on political power, the Cherokee Freedmen citizenship controversy, and tribal-federal complexities surrounding the U.N. Declaration on the Rights of Indigenous Peoples.
For Cathy Cory, a disenrolled citizen of the Picayune Rancheria of the Chukchansi Indians who has become an activist in the difficult tribal disenrollment arena, Harper’s reserve on certain Indian human rights issues during his nomination process is representative of a pattern she has witnessed from him over a number of years. It may not have been a pattern that mattered to anyone but her when he was just a lawyer, but she feels it is relevant to the position for which he is now being considered.
Cory says that she and many Indians in her situation have tried unsuccessfully multiple times to get Harper to offer his assistance on tribal disenrollment and due process issues. She notes that several Indians who have been disenrolled from their tribes in California have posted letters online that they have sent and e-mailed to Harper in an effort to get him to take action on or interest in the issue.
“Specifically, we would like to discuss the growing problem of bad governance practices by tribal officials which, to date, have victimized thousands of individuals,” the disenrolled citizens wrote in one such letter in early 2009, inviting Harper, then an Obama transition team member, to meet at a time they knew he would be attending a nearby tribal conference. “The bad governance practices are often characterized by violations of law which strip or deny individuals and targeted groups of the basic rights and privileges enumerated and guaranteed by tribal, state, and/or federal statutes. In most instances, the victims of these bad governance practices are denied recourse against the tribal official perpetrators due to the fact that the officials invoke tribal sovereignty to escape prosecution.”
Cory, who was disenrolled from her tribe in 2006 along with 600 other tribal citizens, says that Harper seemed like he should have been the right person to contact, as he served on the president’s transition team, later worked in the Obama administration, has been a major campaign finance bundler for the president, and by most accounts continues to hold a place in the White House inner circle.
But Harper’s response was less than satisfying, Cory says, as he responded via e-mail in early 2009 that he would soon no longer be a member of the transition team, so he said the disenrollment concerns should be directed elsewhere in the new administration. She also says he chose not to meet disenrolled citizens at a candlelight vigil held during a tribal leadership conference hosted by the Pechanga Band of Luiseño Indians on January 24, 2009, yet he attended a tribal leaders’ meeting there at the same time where he was billed as a member of the Obama transition team, although he had told the disenrolled citizens that his transition service would end on January 20.
Pechanga has been frequently criticized for its disenrollments in recent years as its gaming enterprises have flourished, and its leadership has maintained that the tribe’s sovereignty provides a solid foundation for it decisions. Still, disenrollment remains a highly controversial issue in Indian country at-large because many Native citizens feel the action is a federally-sanctioned way to strip Indians of their identities.
“The conference at Pechanga was not the only time that Mr. Harper has declined comment or assistance in fighting the spread of this horrific illness of tribal disenrollment that is consuming Indian country in California and beyond,” Cory says. “After I received disenrollment papers from Picayune, I e-mailed Mr. Harper with details of the situation and asked for help, or at least commentary, three times between 2006 and 2008 at his Kilpatrick Stockton firm. Never did I receive a response.”
Cory knows that Harper was busy with the Cobell lawsuit at the time, but she also believes that if he was interested in one day being a world leader on indigenous human rights, he had the obligation to address the concerns of disenrolled tribal citizens at some point during his long legal career.
“Anyone who is placed in an international position with the purpose of defending and assuring indigenous rights cannot ignore the horrific tribal, civil, and human rights violations occurring against thousands of American Indian people at the hands of their own tribal governments,” Cory says, adding that she expects by now that Harper should have released a statement on whether he believes tribal disenrollment is appropriate under any circumstances—yet she and others searching for an opinion from him have not seen one to date.
Monette believes it is “quite fair” for people like Cory to be critical of Harper’s lack of response on the disenrollment issue. It is especially important, Monette says, because Harper and his firm have lobbied in the recent past for at least one tribe that has conducted controversial disenrollments, although Monette has offered no proof that Harper or his firm played a role in any disenrollment proceedings.
Beyond disenrollment issues, Monette says Harper’s resume appears “rather thin” for him to have been selected to serve as a human rights ambassador. “Keith seems to have been chosen because he was a strong bundler for the president, not because he was the best Indian person for this position,” he says. “And powerful Natives are supporting him because he has done favors for them.”
Monette’s critique aligns with recent widespread criticism of the Obama administration and its nominations of several people who seem to have little familiarity with topics involving the positions for which they have been nominated. President Barack Obama’s nominee to Argentina Noah Bryson Mamet, for instance, recently admitted that he had never been to the country. George Tsunis, a hotel businessman, knew little about Norway when asked questions about the country during his nomination hearing in January, despite being chosen by the president to become an ambassador there.
Like Harper, many of the nominees who have garnered the most scrutiny from both Congress and the press have been top bundlers for Obama’s presidential campaigns. “Nominating allies and top fundraisers to plum diplomatic posts isn’t a phenomenon Obama invented, but the lack of preparation on the part of his nominees is becoming the source of unflattering headlines,” ABC News reported in a February 7 article that highlighted some of “the most cringe-worthy moments from Obama’s nominees.”
Monette says that Harper can point to his time commitment involving Cobell as a reason for not having addressed more indigenous human rights topics, “but if he is going to be held up as the first Native American to do this job, one would assume he would be a leader in this field.”
The Cobell settlement also helped Monette to personally understand much about Harper’s character when faced by his critics. Having disagreed with each other on various parameters of the settlement, Monette claims the disagreement became physical in 2010 when Harper pushed him in a hallway at the D.C. District Court. “I brought one of the old class-action gurus to the Cobell courtroom one day as I was getting ready to testify about my problems with the settlement,” he alleges. “We were walking together down the hallway at the court, and Keith Harper gets in front of us and stops. And Keith shoved me—and I mean hard. He did it on purpose to try to provoke. It really, really threw me because it was just before I was scheduled to testify.”
Harper has not responded to requests for comment on this allegation, and Page, the spokesman for Kilpatrick Stockton, declined to comment. Paul Kamenar, a longtime class-action lawyer based in D.C. who was with Monette at the time of the incident, says he was not in sight range to see exactly what happened. “I’m not saying it didn’t happen,” he says. “But Richard is a very honest and forthright person, so I don’t have any reason to doubt him.”
Beyond the Monette incident, Kamenar says the Senate should investigate Harper and the Cobell legal team’s request for much higher lawyers’ fees than Congress approved for in the settlement. “I thought the $100 million that Congress allowed for lawyers’ fees was excessive, he says. "Then the lawyers requested $223 million from the court. It was outrageous.” A battle among Cobell lawyers over fees still continues at the D.C. District Court, with Kilpatrick Stockton lawyers saying that the Native American Rights Fund does not deserve the $8.1 million it has requested for work it performed during the case.
Marilyn Vann, president of the Descendants of Freedmen of the Five Civilized Tribes organization, is another indigenous advocate who has questions about Harper. In all the years that citizens with Cherokee and African-American ancestry – widely known as Cherokee Freedmen – have been asking the Cherokee Nation to enroll them, she has never heard Harper, a citizen of the tribe, take a position.
“I am not aware of Keith Harper writing any newspaper columns, or giving any interviews regarding the Cherokee Freedmen disenrollment issues, or on any tribal enrollment issues, including disenrollment, blood quantum, or moratoriums against registration of additional tribal members,” Vann says.
“I believe that the Cherokee Freedmen issue is very important as it deals with treaty rights of a tribal minority who were oppressed due to their ethnicity,” Vann says, noting that the U.N. previously took a position against disenrollment of South African citizens due to their ethnicity, and she hopes that Harper would support such a policy in the U.S. and other countries.
“I certainly believe that a prospective appointee to a human rights U.N. position should be questioned by U.S. officials who must approve an appointment as to [his] positions on legal and human rights issues of Indian country,” Vann adds.
Harper’s silence to date on tribal disenrollment and Cherokee Freedmen issues appears reminiscent of the silence Sen. John McCain (R-Arizona) blasted him for during his first confirmation hearing in September 2013, which centered on a letter drafted and distributed by the Cobell legal counsel during the appeals period of the Cobell settlement.
The letter included the names and addresses of four Native Americans – Kimberly Craven, Carol Good Bear, Mary Lee Johns, and Charles Colombe – all of whom appealed the settlement; it encouraged Cobell class members to directly contact the appellants, and it indicated they were holding up payments by exercising their legal right to an appeal. Several Indian country legal experts said the letter, which was distributed by e-mail to a large listserv and posted on the Cobell lawyers’ website from January 2010 through September 2013, amounted to harassment – and harassment did indeed result from the letter – but at the time Harper did not and would not say anything against it when queried by the press.
“[Y]ou couldn’t answer for a letter that mentioned people’s names, addresses, phone numbers—encouraging people to call and harass them?” McCain asked Harper at the September hearing. Harper responded that the letter was wrong, but he said he had no role in drafting it, laying blame on his co-counsel Dennis Gingold who has since said Harper’s characterization was “puzzling.” McCain has countered that he does not believe Harper, citing inconsistencies in his communications with Congress.
Russel Barsh, who previously worked for the U.N. Center for Human Rights focusing specifically on issues involving indigenous and tribal peoples, says it would be worthwhile for Harper to share much more about his indigenous human rights views, so that Indian country can be better served and suited to know whether it can and should support him. “If Mr. Harper were faced with a complaint before the Human Rights Council against an indigenous authority (such as the Navajo Nation faced in the Hopi land dispute), I wonder whether he would argue that indigenous leaders are subject to, or exempt from international human rights law,” he says. “I would be interested in his thinking on this. It is not an easy question.”
Barsh adds that he has no personal experience with Harper or the Cobell litigation, but he does believe that if the Obama administration is serious about advancing human rights through the U.N. system, it should choose representatives who have experience inside that system, and who know how to work within it.
“Being an effective U.S. lawyer is a good start but does not make someone an effective U.N. diplomat: it's a different administrative and legal system, and it's more about relationships and confidence building than rules,” Barsh says, adding that he previously worked alongside and trained young Native North Americans at the U.N., and he believes many of them would make excellent diplomats.
The Foreign Relations Committee to date has not focused on indigenous rights issues beyond the ones McCain raised during Harper’s two confirmation hearings, yet Harper’s top legislative supporters, including Sen. Barbara Boxer (D-Calif.), have repeatedly pointed to his Cherokee ancestry as an important reason for him to be confirmed.
“It’s a history-making nomination, and I hope the Senate moves soon on his nomination,” Boxer said last December, noting that Harper would be the first Native American citizen of a federally recognized tribe to become a U.S. ambassador if he is confirmed. (Chris Stevens, the former ambassador to Libya who was killed in the Benghazi attack at the U.S. consulate in September 2012, was a citizen of the non-federally recognized Chinook Tribe.)
Barsh says that if Congress is going to cite Harper’s Cherokee citizenship as a reason for supporting him, legislators should definitely examine his positions on Indian human rights issues. “If I were on the Senate Foreign Relations Committee, I would ask, ‘How does your Cherokee citizenship and experience as a Native American lawyer influence your perspective on the pursuit of human rights elsewhere in the world?’” he says. “Do indigenous nations have a role to play in the international sphere?" And, if the Obama administration hopes to gain credibility in Indian country and on the world stage by appointing a high-profile Native American as an ambassador, Barsh says it is fair to ask whether Harper’s Cherokee citizenship makes a difference in his outlook or the way he will do his job. “If yes, things could get interesting if he has gumption and a loose leash,” he says. “If not, then his Native identity is immaterial, regardless of what kind of human being he is.”
The full Senate must still vote on Harper’s nomination for him to be confirmed. Republicans are widely expected to vote down his nomination, especially given McCain’s impassioned arguments against him, along with critiques from Sen. John Barrasso (R-Wyoming), vice-chair of the Senate Committee on Indian Affairs, who has also been among Harper’s top opponents. Before last fall, Republican displeasure toward Harper might have been enough to sink his bid, but Senate Majority Leader Harry Reid (D-Nevada) recently changed the Senate rules to require only a simple majority to approve presidential nominees, as opposed the 60 votes that were previously necessary. That means if 51 Senate Democrats approve of Harper, he will be confirmed.
To date, pleas from tribal citizens to both the Obama administration and to the Democrats on the Foreign Relations Committee to reconsider Harper’s nomination have gone unheeded, with many Democrats choosing to highlight the historic nature of his nomination, rather than addressing issues that have been raised about his nomination.
The Democratic support for Harper troubles Craven, who had her name and address published in the infamous Cobell lawyer letter McCain decried at the September hearing. The Sisseton-Wahpeton citizen has told the Foreign Relations Committee that she and her family have been harassed as a result of the letter, and that individuals once associated with Harper who now work at the Department of Energy would not allow her to work on tribal projects any longer, which led to her exit in January from the National Renewable Energy Laboratory.
It has been frustrating for her to see Democrats, including the president that she donated to when he ran in 2008, push so hard to support a person that she believes is simply not qualified to be a human rights ambassador. While frustrated and currently looking for a job, she still holds out hope that grassroots Natives who may be more affected by human rights violations than powerful Native advocates in D.C. will contact their senators about this nomination.
“I want all members of the Senate – Democrats, Republicans, and Independents – to know that these are very real issues being raised about Keith Harper’s character and commitments,” Craven says. “This should not be a partisan battle.”