Free Response - District Court of Federal Claims - federal

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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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