Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:89-cv-00218-EJD

Document 157-2

Filed 05/26/2006

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PB Proposed Finding 5: To date, Congresshas appropriatedthree of the fow annual installmentsauthorized by the SettlementAct, rendering a total of to to S14,485,018.00 be allocated the CherokeeNation and its attorneys, though FY 2006. Docket No. 137,Joint StatusReport; Attachment to Docket No. 138,Declarationof DouglasA. Lords ("Lords Decl.").

5: NationResponse Cherokee in frndingis disputed part.The The proposed to 8.00 S14,485,01 in fundsappropriated date Nation-- not its belongto theCherokee attorneys.

PB Reply: of the FY through 2006. Of course, legalissue appropriated in that It is undisputed thereare$14,485,018 frrnds Finding5 andthey the factsin Proposed to ownership the fundsis a centralissuein the case.No onedisputes admitted. shouldbe deemed

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Case 1:89-cv-00218-EJD

Document 157-2

Filed 05/26/2006

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PB Proposed Finding 6: Of the sums already appropriated, I SI ,448,50 .80 hasbeenallocatedto the attorney escrow fund. Docket No. 137, 7. Joint StatusReport;Lords Decl.'1f

Cherokee Nation Response6: Not disputed.

6: USA Response None.

PB Reply: The CherokeeNation does not dispute ProposedFinding 6, andthe Governmentdoesnot respondto it at all. ProposedFinding 6 should be deemedadmitted.

Case 1:89-cv-00218-EJD

Document 157-2

Filed 05/26/2006

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Finding 7: PB Proposed for Act The Settlement provides an to be additional $5,000,000.00 in appropriated FY 2007for theCherokee 25 Nationandits attorneys. U.S.C.$$ the Of 1719c(c)(4),(dxl). thatamount, up Act Settlement makes to $500,000.00 Nation's to available payto the Cherokee fees. attorneys' their statutory attorneys Id. $ 1779e(b).

Cherokee Nation Response7: The proposedfrnding is disputed in part. The to additional$5,000,000.00 be appropriated under the SettlementAct in FY 2007 belongs to the CherokeeNation - not its attorneys. Moreover, the Act does not provide any specificamountof "statutoryattomeys'fees."

PB Reply: Finding 5, in will be appropriated FY2007. As with Proposed There is no disputethat an additional$5,000,000 factual issue the CherokeeÑation is disputing a legal issueregarding ownership of the appropriatedfunds, not a as to the amount of funds appropriated. The Govemment makesno responseat all. The facts in Proposed Finding 7 should be deemedadmitted.

Case 1:89-cv-00218-EJD

Document 157-2

Filed 05/26/2006

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Finding8: PB Proposed 18, On February 2005,theCherokee its Nationprovidedto the Secretary own that Resolutions purportedly "authorized payments its to certain andapproved" Boggs,as lawyersotherthanPatton follows: & Vy'ilcoxen Wilcoxen Estate Mr. Niebell of Hall Estill Ex. 6 at A-53to A-54. $550,000.00 $100,000.00 5280.524.57

Cherokee Nation Response8: The proposedfnding is disputed to the extent the that it characterizes CherokeeNation's Resolutionsas "purportedly" authorizing and approving paymentsto attorneys. The Resolutionsspeakfor themselvesand properly authorize and approvepaymentsto the attorneys,consistentwith the 2002 Settlement and Cherokee Act,25 U.S.C.$ 1779e(a), Nation law, seeCN Ex. 21, as well as the requirementsof the terminated contract under which Patton Boggs makes its claim. That contract makesthe payment of any fee to Patton Boggs subject to the approvalsrequired by applicable law, including tribal law, and tribal law requires any attorney fee payments to be approvedby the CherokeeNation Council.SeePB Ex.2 at3.

PB Reply: The word "purport" meansto "profess or claim." That the CherokeeNation still insists, as a legal matter, that that the that it was permitted to "authorize[]" and "approve[]" the paymentsmade to attorneys,demonstrates CherokeeNations purported to authorizethe payments. Again, the CherokeeNation is disputing facts only to the extend that the facts imply that the CherokeeNation is incorrect in its legal arguments. Such disputesdo not Finding 8 should Proposed Finding 8. Proposed comply with RCFC 56(hX2). The Governmentdoesnot address be deemedadmitted.

Case 1:89-cv-00218-EJD

Document 157-2

Filed 05/26/2006

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PB ProposedFinding 9: None of those attorneyslisted above in paragraph 8 dispute the amountsthey were paid. Ex. 5 at A-51 (March 31, 2005 letter from Mr. Wilcoxen, and the Hall Estill firm, to the CherokeeNation, stating "having acceptedthe Nation's fee determination, we have no dispute with the Nation .... "). Nor do they seek additional payment under the Settlement Act.Id.

9: Cherokee Nation Response Neibell and Hall Estill did disputethe initial recommendationsregarding the amount of fees to be paid to eachof them, seeCN Exs. indicatedtheir 17,19, but have subsequently of acceptance the Nation's decision. Pa)¡ments to the attorneyshave been made pursuantto the SettlementAct.

PB Reply: The CherokeeNation's responseis non-responsiveand the Governmentmakesno responseat all. Whether or not "Niebell and Hall Estill did dispute the initial recoÍìmendations," is irrelevant to whether they now dispute those payments. Moreover, the legal conclusion that "Paymentsto the attorneyshave been madepursuantto the SettlementAct" is irrelevant. ProposingFinding 9 should be deemedadmitted.

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