Free Response - District Court of Federal Claims - federal

Case 1:89-cv-00218-EJD

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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,
Defendant.
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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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