Skip to main content

Interior ordered to pay Cobell lawyers

  • Author:
  • Updated:
    Original:

WASHINGTON -- The Department of the Interior was ordered by the U.S.
District Court to pay attorneys' fees and expenses that have accumulated in
the ongoing Cobell v. Norton case.

The total amount ordered paid by U.S. District Judge Royce Lamberth is more
than $7 million. That money will come out of BIA and Interior accounts, and
will affect tribal programs.

On Jan. 26, Interior Associate Deputy Secretary James Cason sent a letter
to tribes notifying them that the court-mandated legal fee payment sent to
Cobell attorneys on Jan. 18 would adversely affect tribal programs. He
detailed where the $7 million would come from to forewarn them that some of
their expectations may not be met this year.

The largest impact will be in the area of historical accounting, with a
contribution of $2 million. That department, which focuses on identifying
the rightful owners of special deposit accounts, was chosen because it
would not be as difficult to move the work to a later and more protracted
timeline.

"It's a matter of do we get them done this year or next year," Cason said.

Tribal attorneys who expect payment for work they have done for the
Interior or BIA on water rights, boundary disputes or other issues may not
be paid this year, Cason said. Most of that work is performed by the
Justice Department, but from time to time tribal attorneys are asked to
step in.

In numerous cases such as this, lawyers would do a lot of background work
to make sure attorneys' fees would not be reimbursed out of tribal funds,
John Dossett, general counsel for the National Congress of American
Indians, said.

"In this case, none of that was done. I don't see [where] that happened.
Tribes are concerned that money will come out of tribal programs, and it's
clearly not what that fund is for," Dossett said.

Sen. Tim Johnson, D-S.D. and member of the Senate Committee on Indian
Affairs, wrote in a response to Cason's letter: "I understand the Court's
Order disturbed funding expectations; however, the inflammatory letter sent
was an entirely unnecessary and inappropriate attempt to undermine the
relationship between tribes and tribal members involved in the Cobell v.
Norton case. It is my sincere hope that the Department revisits this
decision and finds an adequate solution that fulfills its obligations to
the first Americans."

NCAI President Joe Garcia called for a fair settlement to be negotiated
soon and in good faith. During the annual State of the Indian Nations
address on Jan. 30, Garcia said the decision to take funds from the BIA
budget to comply with court orders to pay attorneys' fees "impedes our
progress as tribal governments on nearly all other issues."

"Every year, the BIA budget gets cut. Every year we see somewhere from $100
million to $150 million taken out and moved over to Office of Special
Trustee; that's a bigger concern. This issue of reimbursement of attorneys'
fees is much smaller."

The majority of funds that will be paid to the Cobell attorneys will not
come out of tribal programs. Cason said education and law enforcement are
exempted.

"One of the problems the critics have not embraced is where you take the
money from," Cason said, noting that there wasn't any money lying around
that wasn't in use and that the department had to abide by the court order.

A 0.1 percent levy, which will generate $1 million, was imposed on most
programs, including central office operations and tribal operations. In
each case, the levy was small and broad-based, Cason said.

"We tried to spread the millions out so no one particular program took a
big hit," Cason said.

"My advice to tribal leaders is, be careful. The financial environment has
changed."

Some tribes will have an allocation reduced by $100. Cason said if that
tribe works on a very slim margin, it would have a greater impact.

The BIA contributed $3 million to the attorneys' fee account, with $2
million of that coming from an account that would reimburse tribal
attorneys and the other $1 million from the 0.1 percent levy.

The Cobell plaintiffs referred to the levy and fund distribution as a
"cruel effort to inflict more pain on the victims of the government's
long-acknowledged misbehavior." They claim the funds used to pay attorneys'
fees come from areas that are designed to "punish Native Americans."

"Now that we have secured the rights to this accounting, and now that the
government must pay the costs of that accounting, the Interior Department
is planning to loot Indian accounts once again to cover up its misdeeds,"
said Eloise Cobell, lead plaintiff in the class action lawsuit.

The suit was filed nearly 10 years ago in an attempt to hold the government
accountable and reconcile Individual Indian Money trust accounts for lease,
royalties and other payments due tribal land owners. Cobell has stated that
some $300 billion is at stake.

The Office of Special Trustee contributed $300,000 of funds that were
planned for trust improvement activities; the Department of Treasury,
another $2 million.

Cobell said the government could have found funds elsewhere to pay these
legal fees. "They don't have to make Indians pay because they lost in
court," she said.

Scroll to Continue

Read More

The government, by its own admission, has spent some $100 million defending
this lawsuit. Cobell said the fees and expenses were planned and the
plaintiffs made it clear two years ago they would be seeking the legal
fees.

"It's an interesting irony; when we pay, they claim we are divisive and
terrible," Cason said of Cobell's criticism.

"If they are so concerned about the money they should say, 'We don't want
programs to be hurt, so don't pay this.' If there was some magical pot of
money somewhere -- I don't know where it is," Cason said.

The Cobell plaintiffs continue to claim the government cannot win this
drawn-out litigation. A settlement compromise has been placed on the table
for reimbursement to the IIM account-holders for $27.5 billion. That figure
is disputed by the government. The Senate Indian Affairs Committee has held
hearings on proposed legislation that will settle the lawsuit, but failed
to include monetary funds in the legislation.

"There are side effects of the litigation. I think the tribes have been
supportive, but as time goes by there are side effects to the budget,"
Dossett said.

A group of tribal leaders, in a recent meeting in Bismarck, N.D., offered
another possible settlement figure that ranges from $13 to $27.5 billion.

"I have never seen a more blatant and transparent attempt to politicize
this case in order to divide and conquer Indian country," Cobell said.

"The funds that were cut serve the nation's poorest peoples and we should
do everything that we can to maintain and increase program funding for
Indian Country, not cut funding," Johnson said. "There are clearly better
alternatives than cutting program funding, and I am willing to pursue
solutions at the legislative level that do not involve politicizing the
Cobell litigation."

The amount to be taken from tribal programs will not have as much impact as
the most recent budget submitted by President Bush, which cuts the BIA by
$65 million.

DISTRIBUTION OF ATTORNEYS' FEES:

* Dennis Gingold, lead plaintiff attorney: $2 million

* Thaddeus Holt: $491,000

* Mark Brown: $80,000

* Kilpatrick Stockton: $406,097

* Native American Rights Fund: $1.5 million

* Geoffrey Rempel: $40,000

* Stacy Gingold Bear: $8,000

EXPENSES RELATED TO THE LAWSUIT:

* Price Waterhouse Coopers: $2.5 million

* Thaddeus Holt: $350

TOTAL FEES AND EXPENSES:

$7,066,471

Source: Interior Department Associate Deputy Secretary James Cason's Jan.
26 letter to tribal leaders.