Free Response - District Court of Federal Claims - federal

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IN THE UNITED STATESCOURTOF FEDERALCLAIMS NATION OF THE CHEROKEE OKLAHOMA, Plaintift
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THE I-]NITEDSTATESOF AMERICA, Defendant.
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PATTONBOGGSLLP
Intervenor Plaintiff.
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No. Case 218-89

Chief Judse Edward J. Damich

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THE UNITED STATESOF AMERICA,
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TO THE CHEROKEE NATION'S PATTON BOGGS' RESPONSE FACTS ON OF T]NCONTROVERTED PROPOSEDFINDINGS MATTERS RELEVANT TO BUT NOT COVERED BY PATTON FINDINGSAND PATTON BOGGS'CROSSBOGGS'PROPOSED MOTION FOR SUMMARY JUDGMENT Plaintiff to Pursuant RCFC56 andthis Court'sMarch 28,2006Order,Intervenor Nation'sProposed to Boggs")filesthisResponse the Cherokee BoggsLLP ("Patton Patton Factsarenot Proposed Nation'sNinety-Nine Findingsof "Relevant"Facts. The Cherokee Judgment' for Boggs' Cross-Motion Summary Patton of for disputed purposes resolving

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CN's ProposedFinding Fact 1. I. Historv of the litieation A. Oriein of the claims. 1. In December 7966,the CherokeeNation, later joined by the Choctaw and Chickasaw Nations, filed suit against the State of Oklahoma, challenging Oklahoma's title to the Nationv. Okla.,397U.S. 620,621(1970). riverbed. Choctøw Arkansas

1. PB's Response of Not disputedfor purposes this motion.

CN's ProposedFinding Fact 2. 2. ln 1970,the SupremeCourt held that the CherokeeNation, along with the Choctaw and Chickasaw Nations, retained title to the riverbed. Choctø,vNation v. Okla., 397 U.S. 620

(re70).

2. PB's Response of for purposes this motion. Not disputed

CN's ProposedFinding Fact 3. 3. Following the SupremeCourt's 1970 ruling, the CherokeeNation sought compensation from the United States for the damages that the Nation sustained as a result of the Govemment's failure to recognize and protect the Nation's title to the land, including the value of land and mineral resourcesused by the United States in the construction and operation of the McClellan-Kerr Arkansas Riverbed Navigation Project, which was authorizedby Congressin 1941 and built between 1957 and 1971.See CherokeeNation of of Okla. v. UnitedStates,782F.2d87l,873 n. 2 (10th Cir. 1986)(recitation history),rev'd Nation of Okla.,480 U.S. 700 (1987);seealso grounds,UnitedStatesv. Cherokee on other CN Ex. 12r (MemorandumdatedNovember5,2003 from JamesWilcoxen to JulianFite).

3. PB'sResponse of Not disputedfor purposes this motion.

"CN Ex._" refers to the exhibits that the CherokeeNation submits with the Cherokee Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment.

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CN's ProposedFinding Fact 4. the 4. Efforts made to obtain legislation to compensate Nation in the late 1970sand early Nation of Okla., 480 U.S. 700, See United Statesv. Cherokee 1980swere not successful. (1987); seealso Cherokee Nation of Okla. v. United States,782 F.2d 871, 873 n.2 701-02 (1Oth Cir. 1986).

4. PB's Response of Not disputedfor purposes this motion.

CN's ProposedFinding Fact 5. 5. ln 1982, Congress enacted a special jurisdictional statute which waived statutes of limitation and allowed the Nation to file suit against the United Statesfor any claims that the Nation might have "...arising from construction of the Arkansas River Navigation System, including, but not limited to, the value of sand, gravel, coal, and other resources 23,1982,Pub.L 97-385,96Stat.1944. Act of December taken..."

5. PBts Response Not disputed for purposesof this motion.

CN's Proposed Finding Fact 6. B. The Oklahoma litieation. by 6. On May 23, 1983,pursuant to the specialjurisdictional act, the Nation, represented attorneys Paul Niebell and Andrew Vy'ilcoxen,filed a claim in the United StatesDistrict Court for the EasternDistrict of Oklahoma seeking compensationfrom the United States under the Fifth Amendment for the damagescausedby its construction and operation of the McClellan-Kerr Arkansas Riverbed Navigational System. CN Ex. 2 Complaint in CherokeeNation of Okla. v. United States,No. 83-306C (E.D. Okla); CN Ex. 1 Docket Entriesfor No. 83-306C(8.D. Okla).

6. PB's Response of Not disputedfor purposes this motion.

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CN's Proposed Finding Fact 7. 7. Although the CherokeeNation prevailed in the District Court and the Court of Appeals for the Tenth Circuit, the Supreme' Court reversed, holding that the United States' navigational servitude barred the Nation's claims for compensation based on the Fifth Nation of Okla.,480 U.S. 700 (1987). v. Amendment.UnitedStøtes Cherokee

7. PB'sResponse of Not disputedfor purposes this motion.

CN's ProposedFinding Fact 8. 8. On remand,the CherokeeNation sought compensationbasedon the "fair and honorable dealings"clauseof the Indian Claims CommissionAct of 1946,ch. 959, $ 2, 60 Stat. 1049, at 1050 (formerly codified as amended 25 U.S.C. $ 70a), which had been made applicable to the Nation's claims by the 1982 special jurisdictional act. The District Court rejected those claims, and the Court of Appeals for the Tenth Circuit affirmed. CherokeeNøtion of Okla. v. UnitedStates,937F.2d 1539 (10th Cir.),reh'g denied,948F.2d635 (10'Cir 1991).

8. PB's Response of Not disputedfor purposes this motion.

FindingFact9. CN's Proposed Court but for Nationpetitioned certiorari, on May 18, 1992,the Supreme 9. The Cherokee Nation of Okla. Cherokee issuedan orderdecliningto reviewthe TenthCircuit'sdecision. 504 v. United Stqtes, U.S.910(1992).

9. PB'sResponse of for purposes this motion. Not disputed

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CN's ProposedFinding Fact 10. 10. The litigation efforts in the District Court for the Eastern District of Oklahoma, the Court of Appeals for the Tenth Circuit and the Supreme Court were undertaken by attomeysPaul Niebell, Andrew'Wilcoxen, and,beginning in 1985,JamesWilcoxen, with the subsequentassistance@eginning in 1989) of associatecounsel, Hall Estill. CN Ex. 12 (Wilcoxen Memorandum of November 5,2003 to Julian Fite); see a/so CN Ex. I (Docket CN Ex. 19. Entriesfor No. 83-306C(E.D. Okla.));CN Ex.141'

10. PB'sResponse of Not disputedfor purposes this motion.

CN's ProposedFinding Fact 11. 11. The services provided by these attorneys were performed under a contract dated 'Wilcoxen and Paul Niebell with the Cherokee September8, 1988 entered into by James Nation. That contract retained these attorneys on a contingent basis and they received no payment before the payments made under the 2002 Cherokee, Choctaw and Chickasaw Settlement Act. CN Ex. 7; CN Ex. 16. The Wilcoxen/l{iebell Contract authorized the CN Ex.7 . Seealso CN Exs. associationof other counsel,and Hall Estill was so associated. t2. 14.19.

11. PB'sResponse of Not disputedfor purposes this motion.

CN's ProposedFinding Fact 12. of 12. Beginning in July 1991, the CherokeeNation, with assistance its legal counsel, claims. CN Exs. 12 at3,14,19. exploredpossiblelegislationto resolveits damages

12. PB'sResponse of Not disputedfor purposes this motion.

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CN's ProposedFinding Fact 13. Mike SynarintroducedH.R. 4209, a bill to amend 13. On February7,1992, Congressman the 1982 special jurisdictional act to allow compensationto be awarded notwithstanding the Govemment's rights under its navigational servitude. 138 Cong. Rec. H396-04, 397 (daily ed.Feb.7,1992).

13. PB'sResponse Not disputed for purposes of this motion.

CN's ProposedFinding Fact 14. 14. H.R. 4209 was favorably reportedby the House Committee on the Judiciary on August 3, 1992, H. Rept. 102-773,passedthe House on August 4, 1992, and was referred to the (daily ed. Aug. 4,1992). 138 Senate. Cong.Rec.H7321-01,7323-7324

14. PB's Response Not disputed for purposes of this motion.

FindingFact 15. CN's Proposed on in 15. A parallelbill, S. 2750,had beenintroduced the Senate May 20, 1992,I38 20, but 8 57 Cong.R:ec. 029-01,7037-703 (daily ed.l|l4ay 1992), did not pass.

15. PB'sResponse Not disputed for purposes of this motion.

CN's ProposedFinding Fact 16. C. The Claims Court Litieation 16. On April I7,1989, the CherokeeNation retainedPatton Boggs to bring claims "for damagesor equitable relief arising from the violation of the duties of the United Statesto protect the tribal lands and to managethe tribal resourcesof the CherokeeNation." CN Ex actions for an injunction 8 (PattonBoggs Contract at 1). Patton Boggs would "prosecute which are directly interrelatedwith pending legislative efforts," but would and/or damages, not representthe Nation in the pending Tenth Circuit litigation. Id.

16. PB's Response Not disputed for purposesof this motion.

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CN's ProposedFinding Fact 17. 17. The Nation's contract with Patton Boggs further stated that in considerationfor the provided,PattonBoggs would be paid "not to exceed$5000 per month for fees ... services and for acfual out of pocket expenses,"and, in the event of an "agreedmonetary or other quantifiable recovery for the CherokeeNation ... additional compensationof ten percent 00%) of the amount recoveredless the amountspreviously paid by said CherokeeNation ... providedthat approvalsrequiredby law, if any, are obtained."CN Ex.8 at2,3.

17. PB'sResponse Not disputed for purposes of this motion.

CN's ProposedFinding Fact 18. 18. On April 2I, 1989, Patton Boggs filed the complaint in this still pending case for See againstthe United States. Docket entriesfor No. 218-89 (Fed.Cl.). damages

18. PB's Response Not disputed for purposes of this motion.

CN's ProposedFinding Fact 19. for 19, By a decisionenteredon October 5,1990, the Claims Court dismissed, failure to from state a claim, the Nation's claims for: failure to evict casual (non-mineral) trespassers from the the Nation's lands; failure to survey those lands; failure to remove trespassers Nation's farm and range lands; failure to issue farming and grazing leasesfor the Nation's lands; and failure to managethe Nation's timber lands. CherokeeNation of Okla. v. United (1990). states,2l cl. cr. 565,574-76,577-79

19. PB's Response disputed for purposesof this motion. Not

CN's ProposedFinding Fact 20. 20. The Court, in its October5, 1990decision,also found that the casedid not encompass claims related "to the construction of the fArkansasRiver] Navigation System." Cherokee & Nation,2l Cl. Ct. at 580-81 n. 11.

PB's Response20. Not disputed for purposes of this motion.

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CN's ProposedFinding Fact 21. 21. The Court's October 5, 1990 decision held that the Nation's complaint did contain of allegations stating claims for lossesresulting from trespasson and mismanagement the barred Nation's mineral resourcesin the Arkansas riverbed, but that such claims would be by the statuteof limitations, exceptfor thoseaccruingwithin six yearsof the filing of the suit (April 21, 1983) or which fall within the continuing claim doctrine. CherokeeNation, 2l Cl. Ct. at 570-72.

21. PB's Response Not disputed for purposesof this motion.

CN's Proposed Finding F act 22. 22. The Claims Court, in its October 5 decision, also deferred consideration of the Nation's claim for an accounting of the income generatedby its trust land and resources, stating that the Court's jurisdiction to order an accounting depended on first finding liabilitv in the United States.CherokeeNation, 2l Cl. Ct. at 582.

PB's Response22. Not disputed for purposes of this motion.

CN's Proposed Finding Fact 23. 23. The Claims Court issuedadditionaldecisionsin 1991 and 1992,after PattonBoggs,on behalf of the Nation, filed amended complaints at the Court's direction, to restate the claims with greaterspecificity. The United Stateschallengedthe adequacyof the amended complaints and the Claims Court issued several decisions, accepting some claims, and Nation of Oklø. v. UnitedStates,23Cl. Ct. 117 (1991);24 Cl. Ct. striking others.Cherokee

(1992). Cr. 69s(1992);25 Ct.361
23. PB's Response Not disputed for purposes of this motion.

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CN's Proposed FindingF act 24. 24. On August 2I, 1991,the Court denieda motion filed by Patton Boggs for entry of a partial final judgment on the dismissed claims for purposes of an immediate appeal. Nation of Okla.v. UnitedStates,23Cl. Ct.735 (1991). Cherokee

24. PB's Response Not disputed for purposesof this motion.

FindingFact25. CN's Proposed that motionsrequesting the the 25. On May 19, 1992and July 20, 1992, Courtrejected 26 Nation of Okla.v. UnitedStates, Cl. Ct. Cherokee himself from the case. Judgerecuse Cl. zIs (1992);26 Cf.794(1992).

25. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 26. 26. On January 28,1994, the Court issuedan unpublishedorder in which it declinedto rule on a motion for summary judgment that had been filed by the United States, and instead indefinitely stayed all proceedings in the case until quiet title actions could be litigated against the third parties who were alleged to be trespassing on the Nation's riverbedlands.Ex. 3.

26. PB's Response Not disputed for purposesof this motion.

CN's Proposed Findingß act 27. joint motion, the Claims Court stayed to 17. On February 15, !994, in response the parties' implementation of its January 28 order, for a period of one year, so the parties could pursue a possible legislative settlement of the case.See CN Ex. 5, CherokeeNation of No. Okla. v. UnitedState,s, 95-5056Slip. Op. at 5 (Fed' Cir. April 12,1996).

PB'sResponse2T. Not disputed for purposes of this motion.

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CN's ProposedFinding Fact 28. 28. For the next year, the parties pursued legislative settlementof the case.SeeCN Ex. l3 (Patton Boggs Memorandum to Principal Chief Smith and General Counsel Julian Fite datedNovember7,2003 at 6-7).

28. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding F act 29. 29. When the legislative efforts failed and the Court's February 1994 stay expired, the Nation, represented PattonBoggs,filed an appealon February 17, 1995,seekingreview by decisionsof this Court. SeeCN Ex.4. of the adverse

29. PB's Response Not disputed for purposes of this motion.

CN's ProposedFinding Fact 30. 30. On March 16, 1995, the Court of Appeals issued an order to show causewhy the see CN Ex. 5, and Patton Boggs responded appealshould not be dismissedas premature) on behalf of the Nation.ld

30. PB'sResponse of Not disputed for purposes this motion.

CN's ProposedFinding Fact 31. 3 1. On October 30, 1995, the Principal Chief of the CherokeeNation sent a letter to Patton Boggs terminating its contracts. CN Ex. 10; see also Patton Boggs Complaint in Intervention at fl 15 (stating that Patton Boggs' contract was terminated, although identiffing dateof terminationas "April 30, 1995.")

PB's Response 31. Not disputed for purposesof this motion.

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CN's ProposedFinding Fact 32. 32. On April 12, 1996, the Court of Appeals for the Federal Circuit issued an order accepting appellatejurisdiction over the lower court order imposing an indefinite stay, but declining jurisdiction on all other matters,and set a briefing schedule.CN Ex. 5, Cherokee No. 95-5056Slip. Op. (Fed.Cir. April 12,1996). Nation of Okla. v. UnitedStates,

32. PB's Response for purposesof this motion. Not disputed

CN's ProposedFinding Fact 33. 33. By letter dated April23,1996, the Nation confirmed that Patton Boggs' servicesfor both legislative and litigation matters had been terminated, and requestedthat the firm transferits files to the Nation. CN Ex. 11.

33. PB's Response disputed for purposesof this motion. Not

CN's ProposedFinding Fact 34. The Cherokee Nation retained other law firms to handle the appeal before the Federal Circuit. SeeOpening and Reply Briefs of the CherokeeNation in CherokeeNation of Okla (1995) and1997 No. 95-5055(Fed. Cir), reprintedat 1995V/L 17043907 v. UnitedStates,

(1997). wL 33s45042
34. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 35. 35. The appeal was successful,and the Federal Circuit reversed the order imposing an indefinite stay.CherokeeNation of Okla. v. United States,124 F.3d 1413 (Fed. Cir. 1997).

35. PB's Response Not disputed for purposesof this motion.

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CN's ProposedFinding Fact 36. in 36. On remand, the Nation was represented this Court by JamesWilcoxen. SøeDocket for entries 89-219;seealso CN Exs. 12,14.

36. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 37. 37. The litigation before the Court of Federal Claims was stayed while the Cherokee Nation, representedby JamesWilcoxen and counsel associatedwith him, the Hall Estill firm, along with CherokeeNation officials and staff, focused its efforts on legislation to seek a global resolution of all issuesarising from the Arkansas Riverbed. CN Exs. 12, 14, 16.

37. PB's Response Not disputed for purposesof this motion.

FindingFact38. CN's Proposed Act. D. The 2002Settlement H.R. 3534,was matters, Riverbed the 19,2001, bill to settle Arkansas a 38. On December (dailyed.Dec.19,2001)' 10909 Rec.H10908-03, 147 in introduced theHouse. Cong.

38. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 39. 39. On April 17,2002 a hearingwas held on H.R. 3534 before the House Committeeon CN Resources. Ex. 6.

39. PB's Response Not disputed for purposesof this motion.

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CN's ProposedFinding Fact 40. 40. Before the House Committee on Resources,CherokeeNation Principal Chief Chad Smith describedthe matterscoveredby the SettlementAct, stating: [T]his legislation is the culmination of many years of work by the successionof tribal administrations to resolve the complex controversies surrounding the Nations' ownership of the bed and banks of the Arkansas River in Oklahoma. Our earliest efforts to reach a settlement for lost beganin the late 1970s... riverbedresources The current bill, H.R. 3534, would settle the three Nations' damageclaims againstthe United Statesnow pending in the Court of Federal Claims, and it would give them, in a single lump sum, the past and future fair rental value of the lands being used for the two powerheads that were constructedon tribal lands on the bed of the Arkansas.The bill would also compensate the Nations for the lands being occupied by adjacent landowners and other potential claimants in the lower segmentsof the River. In exchange for the appropriated sums, the three Nations would dismiss their lawsuits againstthe Governmentand disclaim any right, title or interest in the 7,750 acres of lands being occupied by non-tribal interests. Those disclaimers will serve to eliminate the cloud of tribal claims in the title to lands being occupied by these people and relieve the Govemment of the very expensive burden of having to bring ejectment litigation againsta very largenumberof Oklahomacitizens... CNEx.6,at90.

40. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 41. 4I. The United States, representedby Deputy Assistant Secretary for Indian Affairs Wayne Smith, explained at the House hearing that the amount of the settlementwas based on reaching agreementon specific categoriesof losses,set out in a chart which he offered to the Committee.CN Ex. 6 at32.

41. PB's Response Not disputed for purposesof this motion.

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Findingßzct42. CN's Proposed 42. Deputy AssistantSecretarySmith further explainedat the House hearing that to had agreement beenreachedon all issuesbut one, and that negotiations resolvethe CN werecontinuing. Ex. 6 at32. remaining issue

42. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 43. Brad Carson,the principal House sponsorof the bill, also 43. Oklahoma Congressman was being paid: describedthe matters for which compensation Enactment of this legislation, H.R. 3534, will bring about clear, tangible benefits. First it will eliminate the need for the Department of Justice to bring hundredsofdefendants into court due to their occupancyofparts of will pay the three the 7,750 acresof drybed lands.Second,the settlement they actual presentvalue of the loss of past and future assets tribes for the would have had if not for the construction of the McClelland-Kerr navigation system.Third, positive movement of the legislation will result in the dismissal of the mismanagementcase against the Bureau of Indian Affairs. And, finally, the settlementwill provide the tribes with resources that will, in turn, be used to further economic development in the region, benefiting Indian and non-Indian membersof thesecommunities alike... CNEx.6,at92-93.

43. PB's Response Not disputed for purposesof this motion.

FindingFact44. CN's Proposed 4,2002,H. Rept. on out 44. H.R. 3534wasreported of the HouseCommittee September 1015 passed Houseon Octoberl, 2002.148 Cong.Rec.D1013-01, the and 107-632, (digest, Oct. 1,2002).

44. PB's Response Not disputed for purposesof this motion.

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CN's ProposedFinding Fact 45. S. 45. On November 14,2002, the House considered 2017, and amendedit to include,as Title VI, the text of H.R. 3534, the Cherokee, Choctaw, and Chickasaw Nations Claims 148 Cong. Rec. H8912-03,8913the Act. S. 2017 passed Houseas amended. Settlement 8919,8923 (daily ed. Nov. 14,2002).

45. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 46. 46. On November 20,2002 the SenatepassedS. 2017 as amendedby the House, and including the Cherokee, Choctaw and Chickasaw Nations Claims Settlement Act. 148 (daily ed.Nov. 20,2002). Cong.Rec.511773-01,11783

46. PB's Response Not disputed for purposes of this motion.

CN's Proposed FindingFact 47. Choctawand signed5.2017, and the Cherokee, 47. OnDecember 13,2002 the President Act becamelaw. Pub L. 107-331,Title VI, 116 Stat. ChickasawNations Claims Settlement 25 U.S.C.$$ 1779-17799. at 2845,codif,red

47. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 48. il. Cherokee Nation consideration of the attornev feesclaims

48. In late 2002, the various attomeys who had representedthe Nation over the years regardingpaymentof their fees.SeeCN Exs. 12 and 13. beganto raisequestions

48. PB's Response for purposesof this motion. Not disputed

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CN's ProposedFinding Fact 49. 49. To addressthose questions, the Cherokee Nation undertook an examination of the SeeCN Ex.12, CN Ex' 13. claims being madeby thoseattorneys.

49. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 50. 50. At the direction of the Nation, both James Wilcoxen and Patton Boggs submitted reports setting out the justifications for their fee claims. CN Ex. 12 (Memorandum dated November 5, 2002 from James Wilcoxen to Cherokee Nation General Counsel, Julian Fite); CN Ex. 13 (Memorandum dated November 7, 2002 from Patton Boggs to Cherokee Nation Principal Chief and GeneralCounselJulian Fite). 50. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 51. 51. JamesWilcoxen, the widow of Paul Niebell, and the Hall Estill firm (which had been associatedas counsel under the V/ilcoxen-Niebell contract), thereafter supplementedtheir initial submissionwith additional information and billing records.See CN Ex 14, letter of May 2,2003 from JamesWilcoxen to Julian Fite; see ø/so CN Ex. 16 at A-110-4115, MemorandumdatedOctober6,2003, from Julian Fite.'

51. PB's Response Not disputed for purposesof this motion.

To protect attorney client privilege, the CherokeeNation maintains attorney billing recordsas confidential and, accordingly,thoserecordsare not submittedwith this Statement.

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CN's Proposed Finding Fact 52. 52. The submissionsmade by the attorneys,as well as Tribal records, were reviewed by the Nation's general counsel, Julian Fite, who prepared a memorandum, dated October 6, 2003, setting out his preliminary views on allocation of fees under the SettlementAct. CN Ex. 16. That memorandum was provided to the Principal Chief of the CherokeeNation, and by letter dated October 24,2003 to JamesWilcoxen, Joe Reeder (formerly a partner with Patton Boggs, but at that time outside counsel to Patton Boggs), Katherine Boyce at PattonBoggs,and MargaretSwimmerat Hall Estill. Id. at A-108 - A-109.

PB's Response 52. Not disputed for purposes of this motion.

CN's ProposedFinding Fact 53. 53. Mr. Fite's analysis consideredthe attorneysfee claims in light of the decades-long effort to secure compensation for damages to the Nation's interests in the Arkansas riverbed. He statedthat: Except for the original litigation confirming the title to this property [the 1970 Supreme Court decision on the Arkansas riverbed], none of the several lawsuits and appeals ever resulted in favorable disposition of any issues.However, the long term and continued litigation efforts helped to keep these issues alive so that the eventual legislative solution could be reached. Likewise, the long and many efforts to reach a legislative settlement of these matters went down many dead end roads until they reachedfruition last year. added). CN Ex. l6 at A-113 - A-114 (emphasis

53. PB's Response Not disputed for purposes of this motion.

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CN's ProposedFinding Fact 54. 54. Mr. Fite also explained that: "on these many efforts, the Cherokee Nation has expendedwell over $3 million to outside attorneys.In addition, the time of staff attorneys and administrativepersonnelon thesematterswould run into the hundredsof thousandsor the possibly over $l million." CN Ex. 16 at A-114. In that context, Mr. Fite considered pending fee claims being made by eachoutside counsel.

54. PB's Response Not disputed for purposes of this motion.

CN's ProposedFinding Fact 55. 55. Mr. Fite statedthat the first identified written contract with JamesWilcoxen and Paul Niebell was in 1988, for servicesin prosecutingclaims which the CherokeeNation may have against the United States in any court or other tribunal, that it provided for the payment of fees not to exceed l0%o of the recovery, and that each of the attorneys had in submitted recordsregarding their time and expenses providing services.CN Ex. 16.

55. PB's Response Not disputed for purposes of this motion.

CN's ProposedFinding Fact 56. 56. As to JamesVy'ilcoxen,Mr. Fite noted that he provided servicesto the Nation since 1985, CN Ex. 16 at A-110, and had submiued a statementof his time on the mattersfrom and 2219 hoursfrom 1988to 2003, 1985to 2003 (showing1750hours from 1985-1987, He for a total of $595,350at $150 per hour), plus $2638.83in expenses. notedthat Mr. 'Wilcoxen time estimated his time from 1985 to 1992, thereafter had contemporaneous records, and had not been paid for any of the work done on these matters. CN Ex. 16 at A112.

56. PB's Response for purposesof this motion. Not disputed

CN's ProposedFinding Fact 57. 57. Mr. Fite recommendednot paying Wilcoxen for time spent before the first executed contractwas madein 1988.CN Ex. 16 at A-II4.

57. PB's Response Not disnuted for Þurposesof this motion.

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CN's ProposedFinding Fact 58. 58. For the period 1988 through2003, Mr. Fite noted that Wilcoxen and the attorneys working with him "are the only ones with payments deferredto this final resolution," and "that Wilcoxen was involved from the beginning until final resolution." Mr. Fite premium of $ 150,000for long a recommended paymentof $400,000,with a "performance term unpaid serviceand results,for a total of $550,000."CN Ex. 16 at A-ll4'

58. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 59. 59. As to Paul Niebell, Mr. Fite reviewed the time records submittedby his widow, which showed482 hours from 1980-1984,1101hours from 1985-1988and 1127 hours from a 1988 to 1994. Mr. Fite recommended payment of $100,000to Mr. Niebell's estate.CN Ex. 16 at A-110,A-112, A-114.

59. PB's Response Not disputed for purposesof this motion.

CN's Proposed Finding Fact 60. 60. As to the Hall Estill f,rrm,Mr. Fite found that the firm worked on thesematters for the contract.CN Ex. 16 at A-110, A-112. Nation underthe terms of the V/ilcoxenÀtriebell

60. PB's Response Not disputed for purposes of this motion. Of course, the fact that Mr. Fite made conclusionsdoesnot make such conclusionsbinding on the Court.

CN's ProposedFinding Fact 61. Mr. Fite reviewed that firm's billings, found its records to be detailed and 61. and recommendedpayment in the amounts shown ($264,938.22 for the contemporaneous bonusof with a performance for period 1989-1994, and $15,586.35 the period 2002-2003), - A - 1 1 3A - 1 1 5 . , C $ 1 0 0 , 0 0 0 . N E x . 1 6A - 1 1 2

61. PB's Response Not disputed for purposes of this motion. Again, while Patton Boggs does not dispute the fact that Mr. Fite made certain findings, the fact that he made findings establishes nothins material to this case.

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CN's Proposed Finding Fact 62. 62. l'.4r.Fite examinedthe terms of the contract betweenthe Nation and Patton Boggs. He also noted that the firm had a second contract with the Nation, for lobbying services, "much of which had to do with ArkansasRiverbedmatters."CN Ex. 16 at A-113. 62. PB's Response Not disputed for purposes of this motion. Mr. Fite's musings on the scope of Patton Boggs' secondcontract is not even relevant to whether, in fact, Patton Boggs' second contract had anything to do with the Arkansas Riverbed or this case.

CN's ProposedFinding Fact 63. 63. Mr. Fite statedthat PattonBoggs had beenpaid $403,959under the litigation contract from 1989through 1997, andthat "in a letter datedAugust 1I,7995, Kate Boyce, a Patton $126,000in unbilled feesfor Boggs partner,indicatedthat PattonBoggs had accumulated (Letter agreement betweenthe Riverbedlegal work." CN Ex. 16. at A-113; see also Ex.9 CherokeeNation and Patton Boggs for other services).

63. PB's Response Not disputed for purposes of this motion. But, Mr. Fite's statementsrecorded in the CN Ex. 16/Patton Boggs Exhibit 4 prove no more than Mr. Fite made such statements.

CN's ProposedFinding Fact 64. 64. Mr. Fite also statedthat under the two contracts,the Nation had paid Patton Boggs a at totalof $1,053,908.48.1d.A-113;see also Ex.15.

64. PB's Response disputed for purposes of this motion. Of course, what Patton Boggs was paid Not under another contract is entirely irrelevant to what the Settlement Act required the Secretary to pay to Patton Boggs.

CN's Proposed Finding Fact 65. 65. Based on this information, Mr. Fite recoÍrmended that Patton Boggs be paid the premium of $25,000for additional $126,000that it claimed was due, plus a performance in supplementalassistance the passageof the SettlementAct in 2002. CN Ex. 16 the firm's a tA - 1 1 5 .

65. PB's Response Not disnuted for Durposesof this motion. CN Ex. 16 says what it says, but that does

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not support the inference the Cherokee Nation makes as to why Mr. Fite actually recommended payment to Patton Boggs of 5151,000. Of course, Mr. Fite's motivation is irrelevant, as is the entire process through which the Cherokee Nation purported to approve payments to Patton Boggs. It matters not how many persons participated in the decision to "approve" payments to Patton Boggs, because the Cherokee Nation had no right to make such an after-the-fact approval.

CN's ProposedFinding Fact 66. 66. Mr. Fite also pointed out that following the termination of the Patton Boggs' contract, the Nation retainedthe servicesof Swidler Berlin to representit in the claims case,that the frrm's serviceswere terminated in 1999 and that the Nation had paid the firm $202,120 in connectionwith servicesprovided in the case.He statedthat the firm was making no claim paymentand he recommended none.CN Ex. l6 at A-111, A-113,A-115. for additional 66. PB's Response Not disputed for purposes of this motion. It does not matter what Swidler Berlin did or did not do, becauseit is not entitled to be paid under the SettlementAct.

CN's ProposedFinding Fact 67. 67. Mr. Fite invited the interested attorneys to comment on the recommendations CN containedin his memorandum. Ex. 16 at A-108 - A-109 (October24,2003letter).

67. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 68. 68. By letter datedNovember 8, 2003, the widow of Paul Niebell objectedto Mr. Fite's proposal to pay her husband'sestateonly $100,000,stating that the payment would amount to only $37 per hour for his time. She askedthat he reconsiderthe matter, as her husband regularly chargedhis time at $100 per hour. CN Ex. 17.

68. PB's Response Not disputed for purposes of this motion. Mr. Niebell died without working on the only matter that brought about a Cherokee Nation recovery. Thus, under his wholly contingent contract, he was entitled to nothing. It makes no difference whether his Estate sought more, becausehe had no colorable claim to anything.

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CN's Proposed Finding Fact 69. 69. By letter dated December 5, 2003, Hall Estill commented on Mr. Fite's recommendation,fi¡rther describedits servicesand requestedadditional compensationfor time that had not been billed and for the delay in receiving payment. CN Ex. 19'

69. PB's Response Not disputed for purposes of this motion. This fact is irrelevant because(a) Hall Estill had no right to be paid directly by the Cherokee Nation and (b) it later withdrew any claim for additional payments.

CN's ProposedFinding Fact 70. 70. Patton Boggs respondedto Mr. Fite's invitation by telephonecalls in early November, and a letter datedNovember 14.2003. CN Ex. 18.

70. PB's Response Not disputed for purposesof this motion.

CN's ProposedFinding Fact 71. 71. In his letter datedNovember 14,2003, PattonBoggs' counselMr. Reederstatedthat the firm's claim was "based squarely on the Litigation Contract," questionedthe Nation's decision to terminate that contract, and describedthe servicesthat the firm had provided to the Nation prior to the contracttermination.CN Ex. 18 at2-3.

71. PB'sResponse Not disputed for purposesof this motion.

CN's Proposed Finding ß act 72. 72. In the November 14,2003 letter, Patton Boggs also took the position that the lawsuit it filed in the Claims Court was "the only basis, and, indeed, the statutorily statedbasis, CN for the resultinglegislativesettlement." Ex. 18 at2.

PB'sResponseT2. Not disputed for purposesof this motion.

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CN's Proposed Finding Fact 73. 73. Inresponse to a requestby the Nation for more specific information about the number of hours that Patton Boggs statedit had billed on this matter, its counsel submitted a letter datedDecember17, 2003 in which he explained: the diffrculty in reconstructing time worked but never fully recorded becauseour Attomey Contract neither required or contemplatedthat we would charge by the hour and submit and maintain precise, detailed data Further complicating this arduoustask, as explained in our in that maruLer. November 2002 submission, Patton Boggs installed a new computerized billing system in December 1990. While we do not have all the time that was devoted to this cause,we have attemptedto recapturefrom the billing system the total professional hours devoted to the Arkansas Riverbed litigation matters. CN Ex. 20.

73. PB's Response Not disputed for purposes of this motion. Of course, Patton Boggs' bills were irrelevant becauseit was entitled to be paid a ten-percent contingency feefrom the Secretary.

CN's Proposed FindingF act 74. 74. Patton Boggs submitted to the Nation a one-pagechart which reported a total of 6,528 hours of time by 53 individuals, CN Ex. 20. The chart does not differentiate Ítmong of partners,associate attorneys,paralegalsor law clerks, or describethe substance the work done.

74. PB's Response Not disputed for purposes of this motion.

CN's ProposedFinding Fact 75. 75. On February 23, 2004, to implement the statutory restrictions on the use of the $20 million payment to the Nation under the Settlement Act, the Council of the Cherokee Nation adoptedan Act, as a matter of tribal law, to govern its use of those funds. Cherokee Nation Legislative Act 5-04, the ArkansasRiverbed Trust Fund ManagementAct of 2004. CN Ex. 21.

75. PB's Response Not disputed for purposes of this motion. Indeed, this fact further proves that there was no such "approvaltt extant at the time the SettlementAct was passed.

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CN's ProposedFinding Fact 76. 76. The Cherokee Nation Arkansas Riverbed Trust Fund Management Act of 2004 requires, inter aliø, the approval of the Chief and the Council with regard to the payment of attorneys'fees. Ex. 21 at $ 5. CN

PB's Response 76. Not disputed for purposes of this motion. Indeed, this fact further proves that there was no such "approval" extant at the time the SettlementAct was passed.

CN's Proposed Findingßact 77. analysisof 77. [n2004, Mr. Fite retainedoutsidelegal counselto provide an independent on his preliminary recommendations the attorney fee claims. See CN F;x.22.

77. PB's Response Not disputed for purposesof this motion.

FindingFact78. CN's Proposed 78. By letter dated July 9, 2004, outside counselconcurredin large part with the recommendations made by Mr. Fite, but raised some additional questionsfor his consideration. Ex. 22. CN
PB's Response 78. Not disputed for purposesof this motion.

CN's Proposed Finding Fact 79. 79. Among the questionsraised by outside counsel was the extent to which Patton Boggs was obligated under its "litigation" contract with the Nation also to provide legislative and lobbying servicesrelated to the Arkansas Riverbed, but for which the firm was separately paid under its other, "lobbying," contract with the Nation. CN Ex. 22 at 5.

79. PB's Response Not disputed for purposes of this motion. Mere speculation by the Cherokee Nation's outside counselis not a materÍal fact.

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CN's ProposedFinding Fact 80. 80. Outside counsel also questionedthe basis for Patton Boggs' assertionthat the firm had over 6000 hourstime in the matter.CN Ex. 22 at7.

PB'sResponse 80. of Not disputedfor purposes this motion. Mere speculation by the Cherokee Nation's is outsidecounsel not a materialfact.

CN's ProposedFinding Fact 81. 81. Outside counsel concurredin Mr. Fite's view that "any determinationof the amount of this 'equitable contingency fee' should take into account the primary fact that recovery under the Act arose from the efforts and contributions of several attorneys and law firms (including employees the Nation) in additionto PattonBoggs."CN Ex. 22 at7. of

81. PB's Response Not disputed for purposes of this motion. Legal conclusions by the Cherokee Nation's outside counsel are not binding on the Court and, in this case, have no bearing on the case becauseno one contends that Patton Boggs was terminated for cause.

CN's Proposed Finding Fact 82. 82. Mr. Fite's recommendations were provided to the Principal Chief who, in turn, formally submitted the matter to the Council of the Cherokee Nation. See CN Ex. 23 16, (Rules CommitteeMeeting Minutes for September 2004 atA-143).

82. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

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CN's Proposed Finding Fact 83. 83. In accord with Nation law and practice, the Council referred the matter to the legislative Rules Committee, which is a standing Committee comprised,at that time, of all 15 members of the Council. See CN Ex. 23 (Rules Committee Meeting Minutes for 16,2004at A-141,A-143). September

83. PB's Response for purposes of this motion. It is simply not relevant how many times Not disputed the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary wâs mandated to pay.

FindingFact84. CN's Proposed feesat six considered issueof attorneys the Nation RulesCommittee 84. The Cherokee 18,2004, November 20,2004, 16,2004,October held meetings, on September Committee CN 17,2005. Ex. 23 at A-I43 - Aand 17,2005, February January 16,2004, December 145;Ex. 24 at A-147 A-153;8x.25at A-158;F;x.27at A-169 AI70;Ex. 28 at A-175 Ex. A-180; 30at A-195- A-196.

84. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

CN's ProposedFinding Fact 85. 85. The underlying records relating to the attorney fee claims were made available for review by Council members. See CN Ex. 25 (Rules Committee Meeting Minutes for November18.2004 at A-158).

85. PB's Response Not disputed for purposes of this motion. It is simply not relevant how mâny times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretaly was mandated to pay.

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CN's ProposedFinding Fact 86. 86. At each Committee meeting when the attorney fee issue was substantivelydiscussed, the interested attorneys were provided with the opportunity to present their position in supportof their claims for fees.See CN Ex. 23 af.A-143 - A-145; Ex. 24 at A-147 - A153;Ex. 27 at A-167, A-169- A-170;Ex. 28 af A-175- A-180; Ex. 30 at A-192,A-195 A-196 (Rules Committee Meeting Minutes for September16, October 20, December16, January 77, and February 17).

PB's Response 86. Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

CN's ProposedFinding Fact 87. 87. Patton Boggs appearedat five of the six meetings,through either partners of the firm or local counsel,presentedits position to the Committee and respondedto questions.See CN Ex. 23 at A-143- A-145;8x.24 at A-147- A-153; F,x.27 at A-167, A-169- A-170; Ex. 28 at A-175 - A-180; Ex. 30 at A-192, A-195 - A-196 (Rules Committee Meeting 16, Minutes for September October20, December16, January17, andFebruary17).

87. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

CN's ProposedFinding Fact 88. 88. Committee members had the benefit of recommendationsfrom not only the Nation's General Counsel and outside legal counsel, but also the Nation's legislative counsel. CN Ex.26.

88. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary wâs mandated to pay.

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CN's Proposed Finding Fact 89. 89. After hearing presentations,the Council membersdebatedthe issue during the Rules meetings. See CN 8x.23 at A-143- A-145;Ex.24 at A-147 - A-153; E;x.27at Committee A-767, A-169- A-170;Ex. 28 at A-175- A-180; Ex. 30 at A-192,A-195 - A-196.

89. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

CN's ProposedFinding Fact 90. 90. During those meetings, members of the Council expressedtheir desire to deal fairly with the attorneys who had representedthe Nation throughout these proceedings and to honor the Nation's obligations. Council members discussedthe work done by each of the attorneys,the extent to which eachhad, or had not, beenpaid, and the results achieved.See CN Ex. 27 at A-169- A-170: Ex. 28 at A-175- A-180.

90. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretâry was mandated to pay.

CN's ProposedFinding Fact 91. 91. During the Rules Committee meeting on January 17,2005 a motion to pay Patton failed,following a 5-5 vote.CN Ex. 28 at A-I77. Boggsthe sum of $151,000

91. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary \üas mandated to pay.

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CN's Proposed Finding Fact 92. 92. Following that vote, the Rules Committee approved fee payments for attorneys Wilcoxen and Niebell in the amounts recommendedby Mr. Fite, and approved a fee payment to Hall Estill, but without the $100,000 bonus that Mr. Fite had recommended. CN Ex. 28 at A-177 - A-178.

PB's Response 92. Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authorify, or what procedures it followed in "approving" attorney's fees which the Secretary was (approve" a mandated to pay. Moreover, the fact that the Cherokee Nation did not $100,000bonus to Halt Estill does not change the fact that it approved almost three times that in feesdespitethe fact that Mr. Wilcoxen was solely liable for such fees.

CN's ProposedFinding Fact 93. 93. The Committee then resumed discussion of the fee payment for Patton Boggs. A motion was made to pay Patton Boggs $900,000.The motion was subjectto further debate, but including argumentfrom PattonBoggs'counsel, the motion failed by a vote of 4-8. CN Ex. 28 at A-178 - A-180.

93. PB's Response Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authorify, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

FindingFact94. CN's Proposed 94. On February 14, 2005, the full Tribal Council approved the Committee feesfor Wilcoxen (by a vote of 13 to 1), for Niebell and for regarding recoÍrmendations (by votesof ll to 3 each),CN.Ex.29 at A-188 - A-189, and enacted: Hall Estill to of Resolution 18-05(for payment $280,524.57 Hall Estill) (CN Ex. 32); Resolution No. to No. 19-05(for paymentof $100,000 the estateof Paul Niebell) (CN Ex. 33); and (CN Ex. 34). to V/ilcoxen) of No. Resolution 20-05(for payment $550,000 James

PB's Response 94. Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" attorney's fees which the Secretary was mandated to pay.

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CN's ProposedFinding Fact 95. 95. On February 17,2005, the Rules Committee resumedconsiderationof the Patton Boggs fees, and adopted (by a vote of 8-7) a resolution approving Mr. Fite's recommendation the flrrmbe paid $151,000. Ex. 30 at A-195 - A-196. that CN

PB's Response 95. Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretary was mandated to pay.

CN's ProposedFinding Fact 96. on 96. The Rules Committee'saction and Mr. Fite's recommendation Patton Boggs' fees on full Council during its regularsession March 14, 2005. CN were then considered the by Ex. 31 at A-209- A-212.

PB's Response 96. Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in "approving" Patton Boggs' fee which the Secretaty was mandated to pay.

CN's ProposedFinding Fact 97. 97. Following debateon the issue,the Council (by a vote of 8-5) enactedResolutionNo. 29-05 (CN Ex. 35), approving the Rules Committee recommendationto pay Patton Boggs CN $151,000. Ex. 3I at A-209- A-212.

PB's Response 97. Not disputed for purposes of this motion. It is simply not relevant how many times the Cherokee Nation considered a matter over which it had no authority, or what procedures it followed in o'approving" Patton Boggs' fee which the Secretary was mandated to pay.

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CN's ProposedFinding Fact 98. 98. Taking into account payments already made (exclusive of additional paymentsmade under the lobbying contract), the Council's decision brought the total paid to Patton Boggs ,See CN Ex. 35 and CN Ex. 16. under its litigation contractto at least$554,959.

PB's Response 98. Not disputed for purposes of this motion.

Finding Fact 99. CN's Proposed Chiefforwarded the February 2005andMarch30,2005, Principal 18, dated 99. By letters processing paymentfrom and to the Council resolutions the Bureauof Indian Affairs for Act. underthe Settlement CN Exs. 36,37. of theNation'sshare the fundsappropriated

99. PB's Response Not disputed for purposes of this motion. Of course, the fact that the Principal Chief took certain actions does not establishthe Cherokee Nation's legal right to take those actions.

Respectfully submitted,

N o . 1 8 1 9 90) N o .4 7 0 6 77) G LLP GREENB Ave,NW, Suite500 800Connecticut DC Washington, 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected]
David P. Callet David S. P

Mav 26.2006

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