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

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I THE UNITED STATES COURT OF FEDERAL CLAIMS N
THE CHEROKEE NATION OF OKLAHOMA, Plaintiff, and PATTON BOGGS LLP, Intervenor-Plaintiff v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 89-218(L) Chief Judge Edward H. Darnich

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CHEROKEE NATION'S RESPONSE PATTON TO BOGGS' PROPOSED FINDINGS
OF UNCONTROVERTED IN SUPPORTF ITS CROSS-MOTION SUMMARY FACT O FOR JUDGMENT
FOR $1,247,501.80 Pursuant to RCFC 56(h)(2), the Cherokee Nation hereby responds to Patton Boggs' Proposed Findings of Uncontroverted Fact in Support of its Cross-Motion for Summary Judgment. Because Patton Boggs' proposed findings omit findings on matters relevant to its Cross-Motion for Summary Judgment, the Nation also submits a separate statement, as provided by RCFC 56(h)(2), of the Cherokee Nation's Proposed Findings of Uncontroverted Facts on Matters Relevant To But Not Covered By Patton Boggs's Proposed Findings and Patton Boggs' Cross-Motion for Summary Judgment.

PB Proposed Finding 1. Patton Boggs entered into an attorney fee contract with the Cherokee Nation with respect to this litigation. Ex. 2 at A-39 (the "Contract").

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Cherokee Nation response. The proposed finding is disputed to the extent that it omits material facts that are relevant to the disposition of Patton Boggs' Motion for Summary Judgment. The proposed finding fails to state, inter alia, that Patton Boggs' contract was made with the Cherokee Nation on April 17, 1989 and was terminated in 1995. See Patton Boggs Complaint in Intervention at fl 15; see also CN Ex. 10.'

PB Proposed Finding 2. The Contract provided for, inter alia, monthly compensation and "compensation of ten percent (10%) of the amount recovered less the amounts previously paid by said Cherokee Nation for attorney fees pursuant to this Contract for litigation; provided, that approvals required by law, if any, are obtained." Id. at 2, 3.

Cherokee Nation response. The proposed finding is disputed to the extent that it omits material facts that are relevant to the disposition of Patton Boggs' Motion for Summary Judgment, namely the proposed finding fails to state that Patton Boggs' contract was terminated on October 30, 1995. See Patton Boggs Complaint in Intervention at fl 15; see also CN Ex 10.

PB Proposed Finding 3. Patton Boggs was paid a total of $403,959 in monthly payments under the Contract. Ex. 4 at A-47 (October 6, 2003 letter from the Cherokee Nation's General

Counsel, Julian Fite).

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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
THE CHEROKEE NATION OF OKLAHOMA, Plaintiff, and PATTON BOGGS LLP, Intervenor-Plaintiff v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 89-218(L) Chief Judge Edward H. Damich

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CHEROKEE NATION'SROPOSED.FINDINGS P OF UNCONTROVERTED ON FACTS MATTERS RELEVANT BUTNOTCOVERED PATTON TO BY BOGGS'
PROPOSED AND B CROSS-MOTION SUMMARY
FOR JUDGMENT FINDINGS PATTONOGGS' Pursuant to RCFC 56(h)(2), the Cherokee Nation submits the Nation's Proposed Findings of Uncontroverted Facts on matters that are relevant and material to the issues raised in Patton Boggs' Cross-Motion for Summary Judgment but which were not addressed by Patton Boggs in its Proposed Findings.

1.

History of the litigation

A.

Origin of the claims.

1..

In December 1966, the Cherokee Nation, later joined by the Choctaw and

Chickasaw Nations, filed suit against the State of Oklahoma, challenging Oklahoma's title to the Arkansas riverbed. Choctaw Nation v. Okla., 397 U.S. 620,621 (1970).

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2.

In 1970, the Supreme Court held that the Cherokee Nation, along with the

Choctaw and Chickasaw Nations, retained title to the riverbed. Choctaw Nation v. Okla., 397 U.S. 620 (1970).

3.

Following the Supreme Court's 1970 ruling, the Cherokee Nation sought

compensation from the United States for the damages that the Nation sustained as a result of the Government's failure to recognize and protect the IVationys title to the land, including the value of land and mineral resources used by the United States in the construction and operation of the McClellan-Kerr Arkansas Riverbed Navigation Project, which was authorized by Congress in 1941 and built between 1957 and 1971. See Cherokee Nation o Okla. v. United States, 782 F.2d 871, 873 n. 2 (10th Cir. 1986) f f (recitation of history), rev'd on other grounds, United States v. Cherokee Nation o Okla., 480 U.S. 700 (1987); see also CN Ex. 12' (Memorandum dated November 5, 2003 from James Wilcoxen to Julian Fite).

4.

Efforts made to obtain legislation to compensate the Nation in the late 1970s and See United States v. Cherokee Nation o Okla., 480 f

early 1980s were not successful.

U.S. 700, 701-02 (1987); see also Cherokee Nation o Okla. v. United States, 782 F.2d f 871, 873 n.2 (1 othCir. 1986).

5.

In 1982, Congress enacted a special jurisdictional statute which waived statutes of

limitation and allowed the Nation to file suit against the United States for any claims that refers to the exhibits that the Cherokee Nation submits with the Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment.

' "CN Ex.-"

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