Document 153-3
Filed 05/12/2006
Page 1 of 73
IN THE UNITED STATES COLRT OF FEDERAL CLAIMS
THE CHEROKEE NATION OF OKLAHOMA, Plaintiff, and PATTON BOGGS LLP, intervenor-PiaintifI' v. THE UNITED STATES OF AMERICA, Defendant.
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. L
Case No. 89-218(L) Chief Judge Edward H. Damich
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CHEROKEE NATION'S APPENDIX EXHIBITS RESPONSE PATTON OF IN TO BOGGS CROSS MOTION FOR SUMMARY JUDGMENT EXHIBITS 7 - 22 OF 38 Arthur Lazarus, Jr. Sonosky, Chambers, Sachse, Endreson & PerryLLP 1425 K Street, N.W., Suite 600 Washington, D.C. 20005 (202) 682-0240, (202) 682-0249 (fax) alazarus@,sonosky.com Special Counsel for Plaintiff Cherokee Nation Of Counsel: Lloyd Benton Miller Donald J. Simon Anne D. Noto Sonosky, Chambers, Sachse, Endreson & Perry LLP 1425 K Street, lV.W., Suite 600 Washington, D.C. 20005 (202) 682-0240, (202) 682-0249 (fax) lloyd@,sonosky.net; dsimon~,sonosky.com; [email protected]
K - 1-2002 TI
Case 1:89-cv-00218-EJD
IO:28
FROIA-WILCOXEH
AND WILCGXEN
Document 153-3
Filed 05/12/2006
Page 2 of 73
1988
bv
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UilrnL+ P .
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of
t h c Chr:roki.c
y a c i c , n o f ~ k l a h o m a , a c t i n 2 f c r a n d on b e h a l f
of
of
s a i d C h c r o k e e Hat i o n ( " F . ~ r t y
t ) c Fi r
~ ?t a r c " ) .
a n d J a n c s C . I J i l c o x c n of P l u s k n ~ c c , C k l a h o m a , 3 n d
Paul W.
N i e b e l l . W . l s h i n g c o n . D.C.
( " F ~ r t i c so f
t h e Second Part").
WITNESSETtt:
T h a t t h c P a r t y of t h e F i r s t P a r t . o n behalf o f t h c s a i d
~ h c r d k c eN a t i o n of Gitiahorna, under a u t h o r i t y of a R e s o l u t i o n o f t h e C o u n c i l
of s a i d Cherokec N a t i o n , a d o p t e d a t T a h l e q u a h , Oklahoma o n t h e
of
13th
day
August
, 1 9 8 8 , a c c p y of v h i c h i s h e r e t o a t t a c h e d a n d made a p a r t
h e r e c f , h e r e b y c o n t r a c t s w i t h , r e t a i n s and employs t h e P a r t i e s o f t h e Second
Part a s a t t o r n e y s i n m a t t e r s h e r e i n a f t e r m e n t i o n e d , s u b j e c t t o t h e a p p r o v a l
o f t h e cbmmissioner oc I n d i a n A f f a i r s a n d t o t h e f u t u r e r e t e n t i o n o f P a t t o n . BOERS a n d B l o w , W a s h i n g t o n ,
D.C.
a s co-counscl
i n m a t t e r s h e r e i n a f t e r mentioned.
I t s h a l l b e t h e d u t y o f s a i d attorneys t o a d v i s e and t o r e p r e s e n t t h e s a i d C h e r o k e e Nat i o n i n c o n n e c t i o n w i t h p r o p e r l y p r o s e c u t I n g t o E i n a 1 c o n c l u s i o n any
a n d all,claims w h i c h s a i d C h e r o k e e N a t i o n may h a v e a g a i n s t t h e U n i t e d S t a t e s ,
u h i c h i t may b e a u t h o r i z e d t o p r e s e n t by A c t o f Congress i n t h e U n i t e d S t a t c s
c o u r t s , o r a n y o t h e r c o u r t or t r i b u n a l . S a i d a t t o r n e y s s h a l l a d v i s e t h e s a i d Cherokee H a t i o n i n a n y m a t t e r s r e l a t i n g
t o s a i d c l a i m s , a n d t o r e p r e s e n t i t o r t h e m b e f o r e t h c U n i t e d S t a t e s C o u r t of
A p p e a l s f o r t h e T e n t h C i r c u i t a n d t h e Supreme C o u r t o f t h e U n i t e d S t ~ t e s ,and b c f o r c any o t h e r c o u r t s or t r i b u n a l s , o r any o f f i c e r s h a v i n g a n y d u t y t o per! form ! i n c o n n e c t i ~ w i t h t h e invec.t i g a t i o n , cons idcrat i o n o r f i n a l s c t t lerrent n
I
r e l a t , f v e t o a n y o r a I I suits s o ; i u t h o r i z e d c o b e f i ! e d ~ n p r o s e c u t e d f c r and o n d behalif of s a i d C h e r o k c c :lation.
to Cherokee Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment Cherokee Nation v. United States, No. 89-21 8 (Fed. CI.)
Ex. 7
(TCT-11-2002 1O:ZQ
Case 1:89-cv-00218-EJD
FROM-WILCOXENANDWILCOXEN
Document 153-3
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cljis
i o n c r of l n d i a n : l E f ~ r s . a n d t h c s a i d C h c r o k c t f l a t i o n . i
I
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onrracc.
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c o :llc
s l l p c r v i s i o n 3rjd d i r e c t i o n of i l ~ cCcrnrniss-
and s h a 1 1 n o r makc a n v
ccmpr mist, s c c t 1 c m t . n ~ or o t h e r adjustment of
with o f ti]
f 1
the
~~~~~~~s i n c o n t r o \ ~ ~ t -"~ y c s s nl
h e a p p r o v a l of
c h v C o e m i s s i o n c r of
l r ~ d i a nA f f a i r s 3 n d t h c P r i n c i p a l C h i e E
Commi s l o n e r of i n d i a n A f f a i r s , m a y a s s o c i a t e w i t h them i n s a i d w o r k l ~ e r e u n d c r
! 4
s a i d Cherokee N ~ t i o n .
I t i s a ~ r e e dt h a t c h e s a i d a t t o r r ~ ~ y s~. u b j c c tt o t h c a p p r o v a l of t h c
o t h e r attorneys 0 1 t h e i r own c h o i c e and s c l e c t i o n ; p r o v i d e d , t l i a t n c i t h c r t h c
u n i t e q S t a t e s n o r t h e C h e r o k e e N a t i o n o f O k l a h o m a . P a r t y of t h e F i r s t P a r r . is t o b e I t a n y e x p e n s e b y r e a s o n p f t h e employment o f any s u c h a s s o c i a t e a c t o r -
nays, ~ I eIx p e n s e s c h e r e o f
LO
be p a i d by t h e P a r t i c s o f t h e S e c o n d P a r t , o u t o f
any c o p e n s a t i o n w h i c h t h e y may r e c e i v e for s e r v i c e s t o be r e n d e r e d h e r e u n d e r .
11 i s a g r e e d t h a t t h e c o r n p c n s a t i a n of t h e P a r r i e s o f t h e S e c o n d P a r t , t o r
i.
t h e s e v i c e s rendered under t h e t e r m s of t h i s C o n t r a c t , i s t o be w h o l l y c o n t i n g e n t u on a r e c o v e r y for s a i d Cherokee Nation.
ti
I
The P a r t i e s o f t h e S e c o n d P a r c
s h a l l Iecriva s u c h c o r n p e n s a t l o n a s t h e C o m m i s s i o n e r o f I n d i a n A f f a i r s m a y f i n d
-
l y t o b e d u e a s may be d e t e r m i n e d by a c o u r t o r t r i b u n a l , f o r s e r v i c c s
_ _ 2 _-
t h e r t t c f o r e r e n d e r e d u n d e r t h i s C o n t r a c t , b u t i n no e v e n t s h a l l t h e a g g r e g a t e
-
f e e e x c e e d t e n p e r c c n t (10%) of a n y a n d a l l sums r e c o v e r e d o r p r o c u r e d t h r o u g h t h e ef o r t s o f t h e s a i d a t t o r n e y s , i n w h o l e o r i n p a r t f o r t h e s a i d Cherokee
Nation
t
1
i
I
attotneys,
P a r t i e s oE t h e S e c o n d P a r c ,
-
s h a l l a I s o be a l l o u c d and d i s -
-
b u r s e d / f u n t h m o u n t of a n y J u d g m e n t r e c e i v e d s u c h a c t u a l e x p e n s e s i n c u r r e d ~
p -
--
b y ched.
e r c e p t s u c h a m o u n t s a s m a y be a u ~ h o r i z e d by r e s o l u t i o n o f t h e C c u n c i l
. .
GU-11-2002
.
Case 1:89-cv-00218-EJD
10:Zg
FROM-WI LCOXEN AND WI LCOXEN
Document 153-3
Filed 05/12/2006
t918-682-8635
1-931
Page 4 of 73
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a n y a n d a l l c l a i m s h c r c i n m e n t i o r l e d , anrl c h a t t h c terms cT c h i s C n ~ l r s i t s h a l l t
coneinud f o r
* Y ~ I L
I
I
covcr
t h e s c t v i c c s o f tile P j r t i e s of t h e S c c o n d ? a r t i n p r c s r i u c i n ?
2
period a f
cwc
( 2 ) ycar;
from s a i d c f f c c c i 1 , c d d ~ e r L C o
f i v i (11
Ill,
1990, and c h a t c h i s C a n t r a c t may be c x t e n d c d f o r j r r i n d c of
f r o m c h e d a t e of i t s e x p i r a t i o n , a t t h c o p t i o n ~ n w r i c c c n r c q u c s t d of c h e S e c o n d P a r t . w i t h t h c a p p r o v a l o l t h e P r i n c i p a l C h i c f o f
t h e Cher k e c N a t i p n o f O k l a h o m a a n d t h e C o m m i s s i o n e r of
I t i s a g r e e d a l s o t h a t no a s s i g n m e n t of t h e o b l i g a t i o n s of c h i s C o n t r a c t ,
o r i n p a r t , s h a l l b e made w i t h o u t t h e c o n s e n t o f t h e C o m m i s s i o n e r of
P
11ldian A f f a i r s .
It
s a i d a t t b z n c y s i n t h e compensation a g r c c d t o be p a i d b?- t h i s C o n t r a c t s h a l l b r
I 1
s f u r t h e r a g r e e d t h a t n o a s s i g n m e n t o r e n c u m b r a n c e of
any i n t c r r s t o[
made v i t l o u c t h e a p p r o v a l o f c h e C o m m i s s i o n e r of I n d i a n - 4 f f a i r s .
.Any a s s i g n m e n t
o f t f ~ o 1 i g a t i o n s o f t h i s Contract, a n d / o r a n y assi~nrnnet o r encumbrance of anv t i n t e r e s t i n t h e c o m p e n s a t i o n a g r e e d t o b e p a i d , made i n v i o l a t i o n of t h e provis i o n s of t h i s p a r a g r a p h , s h a l l o p e r a t e t o t e r m i n a t e t h i s C o n c r a c t , a n d i n s u c h e v e n t n o a t t o r n e y having any i n t c r e s t i n t h e C o n t r a c t o r i n t h c f e c ProvjJed f o r t h e r ~ . i n s h a l l b e e n t i t l e d c o a n y c o m p e n s a t i o n w h a t c v e r f o r any ' e r v i c e
d c r e d t o t h e d a t e o f t h e t e r m i n a t i o n oE t h e C o n t r a c t . Ic
rcn-
.s ay,recd t h a t i n t h e
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_
Case 1:89-cv-00218-EJD
Document 153-3
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F R O K W l LCOXEN AND H I LCOXEN
rc:l:t
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ment d u l ; ~a p p r o v e d b y t h e Commissioner of Indian h f fairs. in which e v e n t such
associatc counse1 s h a l l b e e n t i c l e d t o p r o c e e d i n a l l c l a i m s pending b e f o r e che
U n i t e d S t a t e s C o u r t of A p p e a l s f o r t h e T e n t h C i r c u i t , U n i t e d S t a t e s Supreme Court,
or i n any o t h e r c o u r t o r t r i b u n a l ,
u n t i l t h e i r f i n a l d e t e r m i n a t i o n u n d e r t h e terms
prosecute
and c o n d i t i o n s of t h e C o n t r a c t , and t o
such p r o c e e d i n g s i n cornpt i a n c c
with t h e rcrrns and p r o v i s i o n s o f c h i s C o n t r a c t .
T h i s Contract m a p be t e r m i n a c e d by t h e C o m m i s s i o n e r o f I n d i a n A f f a i r s w i t h t h c consent of t h e Council o f t h e C h e r o k e e N a t i o n o f Oklahoma for c a u s e dccmed
by t h e C o n ~ m i s s i o n c r of I n d i a n A f E a i r s to be r e a s o n a b l e and satisfactory upon
s i x t y (60; days notice
-
to t h e
parties
in i n t e r e s t ,
a n d i f t h e C o n t r a c t s h a l l be
so t e r m i n a t e d , t h e P a r t i e s of t h e S e c o n d P a r t s h a l l be c r e d i t e d w i t h such i n t e r e s t
any/ i b u n a l
sum o r s u n s be r e c o v e r e d by a j u d g m e n t o f a court o r t r i b u n a l a s t h e
may d e t e r m i n e t o bc e q u i t a b l e
suit
i n t h e f e e f o u n d d u e upon t h e f i n a l
on of the s a i d
and t h e concrovcrted m a t t e r s t h e r e i n i n c l u d e d .
Case 1:89-cv-00218-EJD
" '
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o~T-11-2002
-
\0:2g
FROM-WILCOXEN AND WILCOXEN
.
I
I
1,
WITNESS WHEREOF. w e h a v q hereunto s e t o u r h a n d s a n d s e a l s c h i s
P r i n c i p a l C h i e f of t h e C h e r o k e e N a t i o n o f Oklahoma
P a r t y of the F i r s t P J ~ C
P a u l M. N i e b e l l
..
P a r t i e s o f the Second P a r t
i t y d e l e g a t e d by t h e Commissioner of I n d i a n A f f a i r s
Case 1:89-cv-00218-EJD
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ATTORNEYS' CONTRACT
T X I S AGZEEMENT
(the "Contract") is made and entered into
this 1 7 t h day of April
,
1989, by and betireen The Cherokee
Nation of Indians of the State of Oklahoma ("Cherokee Nation") and Patton, Boggs WITNESSETH:
&
Blow, Washington, D.C. (the "Attorneys").
That the Cherokee Nation or Tribe of Indians
in Oklahoma, under a u t h o r i t y sf a R~soliitiono f the Council o f
said Cherokee Nation, adopted at Tahlequah, Oklahoma on the 20th day of
May
, 1989, copies of which are hereto
attached and made a part hereof, hereby contracts with, retains and employs Patton, Boggs
&
Blow as attorneys in matters
(All
hereinafter mentioned, subject to all required approvals.
references hereinafter to "required approvals" shall be construed to include the Cherokee Nation Tribal Council and the Bureau of Indian AfEairs, if required by regulation or statute.) It shall be the duty of said Attorneys to advise and to represent the Cherokee Nation in connection with claims which said Cherokee Nation may have under any treaty, Act of Congress, other laws, o regulations for damages or equitable relief r arising from the violation of the duties of the United States to protect the tribal lands and to manage the tribal resources of said Cherokee Nation. The terms and conditions of this Contract
do not authorize said Attorneys to provide any representation in
Cherokee Nation v. United States, Case No. 88-112, now pending before the United States Court of Appeals for the Tenth Circuit, nor does the representation authorized by this Contract in any way interfere with said pending litigation.
Ex. 8
to Cherokee Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment Cherokee Nat'alionv. United States, No. 89-2 18
A-74
(Fed. CI.)
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Said Attorneys shall advise and represent the Cherokee X ~ t i c nin the aforementioned matters before the United States Claims Court, federal district courts, Courts of Appeal, and t h e Supreme Ccurt, and before any other ccurts cr tribunals, or any cfficers having any duty to perform in connection with the investigation, consideration or final settlement of such matters. The said Attorneys
ill pursue as their top priority,
either through the litigation processes or ccmplementary legislative eEEorts, a resolution by way of settlement to recompense the Cherokee Nation for its long-outstanding entitlement since 1970 to the full benefits of its rights in its tribal lands held in trust by the United States, which rights to this date have not been honored in any respect. Said Attorneys, in performing their duties under this Contract, are subject to the supervision and direction of the Cherokee Nation, and shall not make any compromise, settlement or other adjustment of the matters in controversy without advance approval of the Principal Chief of the Cherokee Nation.
It is agreed that said Attorneys shall prosecute actions
for an injunction and/or damages, which are directly interrelated with pending legislative efforts, and shall be compensated an amount not to exceed $5,000 per month for fees for the period January 1989 through June 1990, and for actual out-of-pocket costs expended in direct prosecution of said litigation, including, but not limited to, deposition transcripts, travel and subsistence expenses.
Case 1:89-cv-00218-EJD
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It is agreed that said Attorneys may associate with them in the aforementioned matters other attcrneys cf their oT,mchoice and selection; provided, that said Cherckee Nation agrees in advance to pay the expense that said Attorneys incur by reason of the employment of any such associate attorneys. The Cherokee Nation and the Attorneys acknowledge that said Attorneys will provide considerably more legal services and incur
msre in fees than the amount herein provided for monthly
compensation.
Accordingly, it is aqreed that, upon aqreed
monetary or other quantifiable recovery for the Cherokee Nation, through the litigation or legislative process, said Attorneys shall receive from the Cherokee Nation additional 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. This Contract shall be effective for eighteen (18) months (January 1, 1989 to July 1, 1990), and may be extended for periods of two (2) years, each from the date of its expiration, at the option and written request of the Attorneys, with all approvals required by law.
It is expressly understood that said Attorneys
shall have no contractual obligation to continue representation o f the Cherokee Nation after expiration or termination 0.f this Contract, and the Cherokee Nation shall cooperate in said Attorneys' actions to terminate such representation, including consent to withdrawal from pending court actions,
Case 1:89-cv-00218-EJD
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This Contract may be terminated by the Cherokee Naticn with
the consent of the Tribal Council of the Cherokee Naticn fcr
cJuse deemed b y the Bure~uof Indian Affairs to be reasonable and satisfactory upon sixty (60) days notice to the parties in interest.
If the Contract is so terminated, and any monetary or
other quantifiable sum is recovered by judgnent or settlement of
a suit or related controverted matters for which Patton, Boqgs
Biow has represented the Cherokee Nation, s a i h A t t o i i i ~ y ss h a i i receive an equitable portion of such recovery, pro rated consistent with the terms hereof regarding additional compensation. IN WITNESS WHEREOF, we have hereunto set our hands and seals this 13th day of November
&
,
/
1989.
Principal Chief on behalf of Cherokee Nation of Indians of the State of O k l A o m a
~ o a/ 'iFeder, on behalf of e PATTON, BOGGS & BLOW was4ingt,bn, D . C . Approved pursuant to authority delegated by the Commissioner of Indian Affairs in 10 BIAY 3 .
NOV 1 3 1989
Date
\
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PATTON, B O G G S & BLOW
2 5 5 0 M S T R E E T . N.W.
W A S H I N G T O N . D.C. 2 0 0 3 7
(202) 457-6000
TRT TELEX: 197780 TCLCCOPICR:457-6315
WRITER'S DIRECT DIAL
(202) 457-6094
September 18, 1991
The Honorable Wilma P. Mankiller Principal Chief Cherokee Nation of Oklahoma P.O. Box 948 Tahlequah, OK 74465 Re: Budget for FY 1991-1992
pursuant to our discussions about plans and strategy for legislative and other projects for the Cherokee Nation in the upcoming year, this letter confirms a monthly budget of $8,333.33 to cover already expanded representation of the Nation in nonlitigation matters. As you know, we have taken on a number of new legislative initiatives over time, some of which were unanticipated. In addition to our continuing efforts to secure funding for the Arkansas Riverbed Authority and riverbed surveys, we have prepared testimony and.lobbied for increased Indian Health Service funding for Cherokee health facilities and services and for continued EARN funding. Other examples of new projects include our tireless efforts to secure favorable legislative language to confirm the Cherokee Nation of Oklahoma as the sole recipient of federal program grant and contract funds and of lands to be held in trust in Cherokee territory. We also have done some limited lobbying on the tribe's behalf for increased funds for Indian Housing and for the Administration for Native Americans, and are currently pursuing funding for Cherokee waste water treatment facilities construction. Also at your request I have been involved in coalition efforts to improve the bilingual outreach provisions of the Voting Rights Act. As was the case last year, there may well be legislative and administrative opportunities/challenges we will need to address as they arise this year. The foregoing budget contemplates coverage of these contingencies, and has been discussed with Tommy Thompson. Per Tommy's instructions, I also
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Case 1:89-cv-00218-EJD
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PATTON, B O G G S t B L O W i
The Honorable Wilma P. Mankiller September 18, 1991 Page 2
will prepare and submit a separate budget for pursuit of the Cherokee Nation's economic development proposal in Garland, Texas, assuming the project is feasible based on our due diligence review you have requested. Assuming the above non-litigation budget is satisfactory, please sign below, and we will be set for fiscal year 1991-1992. Warm regards,
~afharineR. Boyce
AGREED:
/
Principal chief . Cherokee Nation of Oklahoma
Case 1:89-cv-00218-EJD
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Joe Byrd
K8
hAX
CHEROKEE NATION
I
Principal C h i e f
P.O. Box 948 Tahlequah, OK 74465-0948
918-4564671
James "Garland" Eagle hH W & C Deputy Principal Chief
October 30, 1995
Kate Boyce PATTON BOGGS, L.L.P. 2550 M Street N. W. Washington, D.C. 20037
Dear Ms. Boyce: As you know, Cherokee Nation has recently changed Administrations. 1 made the commitment during the election to closely scrutinize all accounts and contracts. 1 have acted upon that promise.
- i
Currently, we are reviewing our legislative needs and weighing those against our budgetary constraints. After consulting with members of the Administration and staff, 1 have decided that, at this time, Cherokee Nation no longer requires the services of Patton Boggs.
1 would personally like to thank you for your years of service to Cherokee Nation. You recently guidedour staffthrough the Budget Reconciliation and we are gratefiil for your insight. As a former Council Member, I am also aware of the role you played in obtaining hnding for Sequoyah and of your involvement with the Arkansas River Bed. Our tribal members have certainly benefited Erom your expertise.
Plea&
2c zgt hesitzte !cS ~ E ~ C :!? r e l f hl~thr! ~ e c be nf ssisfm-re. Again, t h d ye:: f ~ r C ~ ~ _ ~ if a ~
your hard work.
Principal Chief
Ex. 10
to Cherokee Nation's Opposition to Panon Boggs' Cross-Motion for Summary Judgment Cherokee Nation v. UnitedStaies, No. 89-2 18 (Fed. C1.)
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Joe Byrd
CHEROKEE NATION
P.O. Box 948 Tahlequah, OK 74465-0948
(9 18) 456-067 1
h'8 h a
Principal
Chiel
James "Garland" Eagle
DCQ-P
Deputy Principal Chief
April 23, 1996 C. Allen Foster Katharine R. Boyce Patton Boggs 25 50 M Street, N. W. Washington, D.C. 20037- 1350
RE: Cherokee Nation v. United States
Dear Mr. Foster and Ms. Boyce:
Chief Byrd has referred your letter of January 19 and your letter of April 18 to me. The Cherokee Nation is not prepared at this time to issue a direct response to Ms. Boyce's January 19 suggestion that if the Cherokee Nation doesn't agree with your firm's interpretation of the fee provisions in the contract, your £innwill require a statement of termination for cause by the Council before withdrawal &om the case. You may wish to know that the Council was informed of the termination of the Nation's relationship with Patton Boggs during our budget process earlier this year, and no objections were voiced. If you desire a b t i v e public action, we can certainly seek it.
:
,
I am thus reiterating Chief Byrd's earlier position that the services of Patton Boggs aie no longer required, and any representation of the Cherokee Nation by your firm in the Riverbed case since his October 1995 notification of termination of your h ' s representation is not authorized by the Cherokee Nation, absent any lkture express direction by the Council to the contrary. Please send the motion for the Cherokee Nation's consent to your withdrawal fiom the case immediately. We will be back in touch with you regarding our acquisition of the litigation tiles, and will work out any diipu'tes regarding fees at a later time.
J*=
L. usan Work
Ex. 11
to Cherokee Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment Cherokee Nation v. United States, No. 89-218 (Fed. CI.)
cc:
h Wicoxen, General Counsel
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Wicoxen & Wilcoxen
nrroreys o Lnw r 112 Noc111Fifl Sreer P.O. Box 357
, z h g e OklafZ0~ Uu o e 74402-0357 E-.jrliI: W ; I c o . ~ n k ~ : o l c o . n c r
Andre
Janw-s
A&e
Memorandum
1:
Julian Fite, General Counsel of the Cherokee Nation
James G. Wilcoxen
Fro1
Datc
November 5,2002
This submission is made in response to your request of O c t o b ~ 2002. I will 1, end4 vor to submit a more complete response as time allows. I begin with a his to^ as whi< , sets the stage for my involve~11eat well as that of associated c o w l under my con1 ic;t Paul NiebeIl was one of the original riverbed attorneys who was also co-counsel unti is death
&
sue4
Che incc of r
inte
Cou
In 1966 Oklahoma agreed to waive irs sovereign immunity and allow itself to be Fr a judicial determination of who owned the Arkansas riverbed. In that year rhe o kee Nation sued the state in Federal Court in Muskogec for an accounting of all ~eit had rweivd from oil and gas and sand and gravel development along 96 miles : Arkansas riverbed wirhin the Cherokee Nation. The Chocraws and Chickasaws aled with like claims. The state answered waiving its immunity and asking the to quiet the title in the state pursuant to the equal footing doctrine.
Following adverse decisions in both the Dismcr Coun and the Courr of Appeals, a the 'nited States Supreme C w reversed holding that the Cherakee, Choctaw and Chit :asawNations were the joint owners of the riverbed and thar the United Stares had o ccdt mial titles to their respective domains in present Oklahoma t the tribes by the trea :sof the early nincreentb cmtury and later confirmed by patents which included the subj :t riverbed.
During the seventies and earIy eighties, the Cherokee Eation made many anempts ro St 1e all or pan of its danage claims with rbe Unired States. At each turn the m%ewas
Ex. 12
A -82
to Cherokee Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment Cherokee Nation v. United States, No. 89-2 I 8 (Fed. CI.)
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at settlement was imminent, but for various reasons the federal government adopt a settlement policy that was acceptable to both the Congress and the Decenlber 23, 1982, after many years of study and hsnation, Reagan signed i t law p~ act which allowed the Cherokee, Choctaw and no nations to bring suit against the United States for all damages related to the on of the navigation way. On May 23, 1983, the Cherokee Nanon filed its rhe United Stares District Court in Muskogee alleging that consb-ucrion of -Kerr Navigadon System created a loss of its tribal assets in the Arkansas tribe maintained thar those assets were held in trust by the United States for the tribe and that the same constituted an unlawfbl taking of the assets by under the Fifrh Amendment. The tribe also maintained in a separate laim rhat the United Stares had breached its dury to deal fairly and h o n v i y with the nibs.
I
The district court framed two (2) issues:
Whethcr the United States navigaaonal servitude i the Arkansas River n prevented it fkom liabiIity for an alleged FiW Amendment taking of tribal land; and
Whether the exercise of the servitude constituted a breach of its duty to deal faitly and honorably with the tribe.
(1)
(2)
Court ruled favorably on the first issue and reserved ruling on the second United States appealed the Court's ruIing on the first issu&to rhe Tenth Circuit affirmed the District Court holding that the Cherokee Nation did property interest in the bed of the river even in the face of the
I 1985 following rhe Tenth Ckcuit's ruling the United States fld a petition far n ie
certiorari wich rhe supreme Court. The Supreme Court granted certiorari and briefing and argument held that whatever property interests the Cherokee in the Arkansas riverbed the same were subject to rhe United States power Tbis holding was consistent with previous servitude decisionsthe first instance ia which the Untied States' power under the servitude with its trust obligations to an Indian tribe under the commerce clause Never before had an Indian nibe whose aswcre held in trust by denied compensation when the trustee used the same for its own
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II
Following rhe Supreme Court's ruling in 1987, rhe case was sent back to the Dis 'ct Court in .Muskogee for a decision on the second issue. The District Court a h cons dcring the position of rhe Cherokee Nation ruled against the mbe in the face of the Sup e C u t s recent decision. Tlm decision was appealed again to the T n h Circuir. or' et In I I, the Court ruled that the Cherokee Nation could not show that the United States viol ed its duty to deal fairly and honorably with the rribe for the reason that the Sup e Court had removed any doubt that the tribe's properry interests were subject to .*(i.~,c~!d SCZV:$L&. Ew~z??~:, tribe i ~ i iiii& :-Tnii& S a ~ e s ~ ~ ~ u ~ x / x u = ~which was denied. aut
b
I k t appeared in this matter in the spring of 1985. At that time, a claim pursuant n was pending in the Eastern District of Oklahoma for all le to the government's use and occupation of the Arkansas f record for the Cherokee Nation white the action was 5, the district court ruled in favor of the Cherokee Nation the United States constituted a 5th Amendment taking lndian Claims Commission Act of 1946. The United States appealed to the the judgment in favor of the Cherokee Nation w s a process, there were various trips ta Washington in an attempt g appeal. Notwithstanding, the Justice Department elected to We responded first with a brief in opposition to the In 1985 cert was granted. Paul Mebell and myself led a brief on behalf of the Cherokee Nation in response to the brief r was ultimately heard on oral argument before upreme C o w The Courr rendered its decision i the spring of 1987 reversing the n Cicuit and remanding the matux t the Eas~em o District for h h e r consideration on claims arising under the Indian Claims Commission Act. Again, a h briefing, the on because of the conclusive nature of thc Court's decision on the 5th Amendment taking issue. Notwithstanding, research and appeal thc remaining issucs etition for rehearing en banc. From this tial assistance in pursuit of the balance ation. After the lo& Circuit afhned the district court's denial of our claims, le effort was expended it the preparation of a petition for certiorari, which was
No other Tribc had been denied compensation by the fcderal government for rhe taki of mbal lands for use in river improvement projects. The Arkansas riverbed si -onwas unique because at the time of the development of the river by the Corps of
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1-996 P .005/006 F-070
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the federal government did nor know &at the riverbed was owned by the hoctaw and Chickasaw Nations. We therefore prepared legislation over a era1 months to c u e this situation. Working closely with associated counsel, and Chickasaw Nation representatives, the Depanment of the Interior and the legation, particularly Congressman Synar, we were able to have introduced 9 on February 7, 1992. The le@slauonwould have required the Secretary of the ay to the Choctaw, Chickasaw, and Cherokee Nations such sums as would roceedings brought in the federal courr for damages resulting and occupation by the United States of that portion of the bed and banks of as River owned by each such mbe pursuant to treaties with the United States ed by the Supreme Court in Choctaw Nation v. Oklahoma After considerable wa kj c e &j-fie of &piesai~$dfi a-dw a tie- for Senate, but congress adjourned and the bill died. However, that legislative in vain, it laid a strong foundation for subsequent 1egisIative efforts. Since ime, there has been an almost conrinuous attempt u negotiate a seN~nent , U i e Stares. Over the last cen years, there have been extended negotiations ntd ials and elected representatives in Oklahoma and Washington, D.C., to bear h i t . In the last three years the United Sates bes to negotiate for a settlement substantially in excess of n range that the Clinton amniaistration had insisted om (See letter of - The Adminisrration has finally recognized thar if a settlement is derd government, then the United States is going to have to file t thousands of non-Indian citizens of Oklahoma to quiet title to of what is now characterized as "drybed lands." If it fails to United States risks facing breach of trust claims by the Cherokee, Choctaw, and tribes began to embrace the concept of relinquishing their uted lands, the United States began to seriously negotiate the caxegories of damages which were raised in the tribes' original appraisals and Incidentally, it was always ]Ross Swimmer's belief that these ould be resolved for an amount in the neighborhood of $40 million and that no substmtially less would be desirable to the tribes and no amount substantially would be paid by the govemmznt History has borne out that reality as can be seen the pending legisladon H.R 3534.
Since the Cherokee election of 1999, there has been a renewed effort to settle with venunenr. For the lasr three years, I have been counsel of record in the Claims action, which has been held in abeyance pending the outcome of sertlement ons. Prior to my taking over that case, the Court severely cut back the causes of it would entertain; and the remaining three causes of action are the subject of a sal motion by the United States.
Recent settlement negotiatisns were conducted by a local team consisting of als Management Officer, BIA, Charlie Robertson, Interior Department Field Alan Woodcock, Chickasaw and Cl~wtawNations attorney Bob Rabon, Nation attorney David Mullon, Arkansas hverbed Authority Director, Troy
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, and myselt The United States began a~ 6s to $10 million. However, after f meetings, and much consultation with experts, Bill Smith and D e b n Fl inchum, got the government up to about $29 million for all damage caegories except avel. While we were able u get the govcmmcnt to conced~ the COT of , that
s for sand and gravel movement and/or use did not disagree with our ent did not want to pay for sand and gravel p a se because of We could show however rhat based on reasonable market Corps' own data, that $22 million in past and fhture sand and gravel ved and/or used by the government. The ultimate response was to
add $1 1 million to the already negotiated arnounr of $29 million on we knew we had to have to settle.
i
W are compiling attorney fee records F r all contract and associated counsel. I e o will bmit those as soon as we can.
Sincerely,
C
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To:
Principal Chief Chad Smith Cherokee Gencral Couilsel Julian Fite
From: Patton Boggs Re: Patton Boggs' Contractual i\ttorney Fees Due for ilrkansas hverbed Lagation Representation
This responds to Cherokee Nation General Counsel Julian Fite's October 17, 2002 mcmorandum relating to the Arkansas hverbed and Civil Action 218-89L. Fitst, o n behalf of all of the many lawyers involved over the past nearly fourteen (14) years, Mr. Fite's recount of the Cherokee Nation's recognition of and appreciation for Patton Boggs' efforts over the years was most gratitjring. In the face of substantial uncompensated time involved and low probabhty of success, we also appreciate very much the Tribe's stated commitment to be generous in compensating Patton Boggs. The narrative below generally track Mr. Fite's numbered issues relating to Patton Boggs' claim for $1,596,04 1.OO pursuant to its April 17, 1989 Attorneys' Contract executed by the Cherokee Nation, approved by the Bureau of Indian Affairs (BIA), Department of the Interior, o n November 13, 1989. Exhibit 1. Although not pertinent to any aspect of the discussion below, this contract was renewed o n several occasions subsequent to 1989.
.
;\ and F --Karrative of I,cc_ulServices l'rovidcd bv Patton Hocps ,
I3rief Synopsis of Initial "1,cmslati~eReprescnration" In lul!:, 1988, (;herokec Nation rctaincd I'atton Lloggs to consider a numl~cr different of Icgslativc approaches to resolve thc ,\rkansas Kivcrbcd matter (the " [ . c ~ ~ s l a t ~ s e I
Ex. 13
to Cherokee Nation's Opposition to Patton Boggs' Cross-Motion for Summary Judgment Cherokee Nation v. United States, No. 89-218 (Fed. CI.)
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nearly $3 d o n , for the Bureau of Land Management ("BLhl") to conduct estensive cadastral sun-eys to ascertain the legal boundaries of the Arkansas kverbed lands determined by the Supreme Court to belong to the Cherokee, Choctaw and Chickasaw Nations in Choctaw Nation v. Oklahoma, 396 C.S. 630 (1970). As part of and in addtion to that funding, Patton Boggs subsequently secured appropriations for operation of the ilrkansas hverbed Authority and to help it pay for an economic valuation analysis (discussed below under "Legislative Settlement Efforts 1993prepare title opinions' so that the Department of 1994'7, and for abstracting and leml services to - .. Justice could commence of trespass and quiet title litigation. Without this funding for surveying and the title work overseen by the Riverbed Authority, neither the Cherokee Nation nor the other Tribes would have been in a position to press for the 600-800 trespass suits as leverage in working towards a legislative settlement. As another strategy to spohght the Riverbed problems, Patton B o g s sparked the interest of the Senate Indian Affairs Committee's Special Investigations Panel in holding an oversight hearing exclusively focused on the Arkansas Riverbed. O n behalf the Arkansas Riverbed Authority and the three 'Tribes, Chief Manluller prcsentcd the legal background of the Riverbed ttust lands and highlighted RIiI's failure to conduct cadastral sunrcys to idcntiQ thc corpus of the trust to he protcctcd, and the failure of both BI11 and Justice to protect the bverbed trust lands from trcspass and pillagc. O f particular interest to the Senate [nvestigations l'anel was the oil consultant, whose testimony supported the (:hcrokees' claim that a number of trespassers \r;ere out right stealing oil
resources from Kivcrbed trust lailds, cither becausc the): had no UI,l leases and wcre trespassi~~g or
\\;-it11funds ;ipproprixted pursuant to 1'attc)n Boggs' Iol)l~!-ins ~iinrrs, .\rk:in.;as 1iivcrt)ed.\urhocir)-lliretl ( ~ t n rhc \\;ilcosci~ I IBol, R:ll>onto issue title opinions on rhe ;lhstr~crcJ : ~ tnisr propcrh detcrmlnecl. I,!- rhe 13I..\[ c:rdastr:il iun-c!-ins, ro I~clong their respective rril~al to clients. .\s noted previously, thc I%I..\I cni~ductcd sttn.c!-s csped;tiourl!thc oclly I)ecause I1:itron Bolas 1ol)l)icd succcssft~ll~- $4(](5,(J(H) BI..\l apprnprixrions anr~tlsil~, rnlrll- ;-c.irs,r o gt't 'I" for 111 Lr ~un-c!.ing :~ccon~plisllcd.
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slant d r h g from adjacent non-ttibal land, or because they claimed to have leases which really were on "top" o f BI'4 leases. In either case, the BIA was doing little or nothlng to halt the theft, recoup the Tribes' losses, or othenvise enforce BIA Imses on tribal trust lands. As part of the foregoing efforts, Patton B o g s began examining thousands of leases for oil and gas, sand and gravel, and some agricultural use. Through this tedious and exhaustive esarnination, the enormity of BLI misfeasance, nonfeasance and even malfeasance struck Patton B o g s attorneys as promisins grounds for Cherokee claims for breach of trust for mismanagement along the lines of the Mitchell I1 claims cases that had prevailed in the Federal Claims and Supreme Court. Patton Boggs presented Chief Mankiller with the "mismanagement" theory as a legal basis for relief. The Chief welcomed this theory, particularly in light of the fact that the prospects for
.
Paul Niebell's and Jim Wilcoxen's "takings" and "fau and honorable dealings" claims litigation then appeared doubtful. Patton Boggs proceeded to propose two litigations: 1) a mandamus action seeking an injunction directing the Secretary of the Interior to conduct surveys, which would help identi$ the Riverbed trust lands so that trespass suits could be fded and the Cherokee Nation could make future use of those lands; and 2) a breach o f trust action against the United States for mismanaging the 'lrkansas Riverbed trust assets. 'cldtiiraaon Representation" In hlarch, 1989, (:hie hlanlder chose to prosecute only the mismanagement suit in the Court of Federal Claims and discussed executing a separate contract with Patton D o g s for "l..itigaaon Keprcscntation." I'rior to drafting the new contract, however, l'atton fiopgs attornctrs and (;hie ,\[ankiller specifically discussed whcthcr the proposed mismanagement claim cc~uld parallel and not conlpcte 1~1th "f:iir and honorable dealings" litigntion in which I'aul Niel,cll 2nd the
Jim \Vilcoscn n-cre rcprcsenting Cherokee Xation before the *l'enth Circuit Court of .\ppcals. . \ t .
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the Chiefs request, Patton Boggs reviewed the Niebell-W'ilcosen Attorney Contract, Extubit 2,' before it was executed in 1988, That contract authorized NicbeU and LVilcoxen to pursue such claims "as may be prosecuted under an ,let o f C ~ n ~ r e s s .[t ~ expressly referenced the " also anticipated Patton Boggs Iitigation Representation contract and made the NiebeU-Wilcoxen contract "subject thereto." O n April 20, 1989, Patton Boggs executed its Litigation Representation Contract with Cherokee Nation, subsequently approved by the BIA. As partial compensation for
zttomp\ls fees fez the h&ad=n P,eeresen:acion fiom l a n i i a q - 1 ; 19S9 C C ~ D I : ~ iRp,~cQnEacf r - -.:=-&~~ -rcv;-'-ci
i j
a monthly budget of only $5,000. Recognizing that this cutrent monthly budget was very limited,
the contract also provided additional compensation specified as a minimum, unqualified payment of
10% of any recovery, less attorney fees previously paid under the contract, as chscussed below in "D
- Position on Contract Terms."
2 Patron Boggs lettea dated i\pril 11, 1989 to Chief Xlanluller and \Vdcoren demonstrate that, from the outset, Patron Boggs had to overcome Jim \VilcoxenYsstrong resistance to the f h g o f the mismanagement suit. Had Patton Boggs not overcome that resistance, the relief now coming to the Cherokee Nation would never have occurred.
The o n l i t w o claims which Paul Niebell and Jim \Ulcoxen initiated imdcr their Attorney Contract(s), the "tdklngs" and "fair and honorable dealings" claims, were those which Congress had specifically authorized by statute in 1982, Public IAW 97-385. See Eshihit 3. By waiving the statute of limitations o n Indian Clxims, the .\ct allowed Cherokee Nation to sue for damages for the value o f .\rkansas Riverbed assets lost d u ~ construction of the AlcCleUan-Kerr Navigation g System. Although the "takings" claim prevailed in the lower court, ultimately the Supreme Court held that the Federal Government's cscrcisc o f the n:~vig;~tional scnitude prcernpted the Cherokees' claim for dalnagcs. .lhc subscquc~~t "fair and honorablc dealings" claim already had llcen d e ~ e in the lowver court o n virtu~lly d identical g r o u ~ d s was pclldlng and appeal in the Tenth Circuit when Chicf Xlanluller met with and retained Patron Boggs to take a fresh look at the .\rkansas Rivcrhed matter and recommend ncw ;md different options. After accepting l'atton Ro
3
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On L\pnl 31, 1989, Patton Boggs i d the mismanagement claim i the Federal Claims n Court, which became styled "Case No. 218-89L." Eshibit 4. Cnfortunately, the case was assigned The to Judge hioody TidweU, a judge who was hopelessly blascd as a former Interior ~olicitor.~ litigation proceeded at a glacial pace, as Judge TidweU hospitably entertained the Government's h g on at least five occasions time-consuming and dilator). motions (to dismiss and to requke repeated amendment of the Cherokee complaint with a "more definite statcmcnt" of the claims) before a
tcsgonsive p l e a h g was finally filed, At one point, Judge T i w ! t!~re~te~?ec! C?ho!C! Joe Reeder 2nd TA e! t~
Allen Foster in contempt of court because they refused to elrminate key claims (which he had dismissed) from the Complaint when it was amended. (L4sa matter of procedural law, to omit these claims would have abandoned them.) Subsequently, despite the provisions of the Federal Rule of Civil Procedure that pleadings only have to give fair notice of a party's claims,Judge Tidwell forced Patton Boggs to specify in the amended complaint ~f of example of alleged
mismanagement. Hearings on the case often were excruciating sessions in which the presiding Judge, in open court, berated Patton Boggs attorneys because of their persistence in pressing Cherokee Nation's claims. During thc course of thls protracted litigation, the BIA decided to put heaky pressure on the Cherokee, Choctaw and Chickasaw Nations by withholdng, rather than continuing to &tribute to the Tribes, all of the proceeds from the Rivcrbcd, pending outcome of the Government's promised, I ~ uyct-to-be-fded, trespass claims. l'his capricious and mean-spirited maneuver obviously was t wholly unanticipated \vhen the parties' I.itigation Rcprescntation contract was esecuted. Ne\-erthcless, I'atton B o g s undertook to file an appcal to the interior Doard of lndlan .\ppeals. ['atton I%oggs uscd the appeal to make thc polnt that all lands identified in the Clol\va\-Sndy also
4 .\I olle po;nt in the lirig;irio~i, lutlgc -I'iJ\~-cll ct-en ill\-itcd tile (:heroker N I I ~ Oto fie a rccusnl ~nc,tion, II OIII!- ro clcn!- the motion sul,scqucntl~once i t u.13 filed.
3
-
31842,;l ?.(,
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should be considered tribal lands untd titles were restored judicially or at least until the Justice Department accepted the i-ali&ty of BLhI sumeys by authorizing the f i g of lawsuits to quiet title. After a frustrating year of circuitous "settlement" negotiations with BLI solicitors, Patton Boggs succeeded in forcing the release of withheld funds to Cherokee Nations and to the other Tribes. Eshibit 5. In June 1993, the Justice Department filed a motion for summary judgment against aU of
; ~:he Cherokee N?ti_nnJs c!r& which h2d net p r e v i e ~ s been c l i s ~ & ~ = d,'=AEe TidGeE. ~ ! ; t 0--& !~
u
Judge denied the motion in January 1994, he also suspended the proceedmgs pendmg the completion of any trespass suits the Justice Department might ever file. ~ n o & n gthat Justice had no intention of f h g trespass suits whose outcome would establish conclusively the Government's liability for mismanagement, Patton Boggs recommended f h g a motion to stay the Federal Claims Court litigation in order topursue negotiation of a legislative settlement. Ixpislative Settlement Efforts in 1993-1994 For the second half of 1993 through most of 1994, Patton B o g s worked closely with Chief Mankiller and particularly with in-house Cherokee Nation counsel David MuUon to develop draft settlement legislation. With the help of several senior staff of the late Congressman Mike Synar, a discussion draft bill was prepared. I'atton B o g s then engaged in numerous settlement negotiations with Interior and Justice Department officials, and worked with the Oklahoma Senators and House Resources and Senate tndian Affairs Committees on the introduction of the leh.lslatic)n. ilkhibit 7.
j71llis rclc~se :tiso I~cncfitcclrhc Ilcirs to the 1'180 .\rlclrcw \l'ilcoscn .\ttornc)- (:ocltract settlcrnct~t rc:~chcdafter the victor). in (:hoct:~w Y:tt;lriol~ Oklahoinx, 336 L.S. 6JII;l')-0). I)cspitc the lack o f v. rnoncr;rr). rccol-en in that c;~sc (or in the sul~scquei~t stm~tonly ;~irrhonzed "t:tkingsV :lnd "fiiir :~ndhor~or;tl~lc ~ie:tlings"c;lscs). Chcrokcc Nlrion ~lgrccdto rcwtrd its \-icrt)tious ,ittorncys ;tn!lv;ly by sarisf!-ills the 11F'o co11ti11~e:tc)-rllclr corltract mith 3 ~cttlcmcnr j . 3 . j In of millior~ro be paid from onc-h;df of the rcrcntrcs dent-cd from k\-crl>edassets c:tch !.e:tr ttnril full!- p;rid, o r for 25 yc.:trs, wtuchcver occurred first. I'shil~it 6. In 111rlilsigl~t. pc-qed v;tluc of jji miltion for dsrnages to rts h v e r i ~ c d rhe assets ; 1 v ; ~ l u ~ t i o n some-ri~nc 1)efore thc 1980 ;ittorney fee scrtlcmcnt) IS cor~sidcml)l!-I~ighcr set thiln thc 520 rnlllion actu:aIl!. to Ije rccr,\.crcd 1))- (:hcrctkce Sirtion ;liter crl3ctlncnt of f-f.R. 3534. 5cjrnc 22 \.cars 1:irer.
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Patton B o g s also prepared an extensive economic valuation to quantify damages for mismanagement of all the Tribe's resources. (A summary chart is attached as Eshibit 8.) Before the biU's introduction, however, Interior Secretary Bruce Babbitt and Congressman Synar had a dspute over a n unrelated matter and, suddenly, Interior lost interest in settlement talks. After the Oklahoma Senators declined to insert a damage figure without Interior's concurrence, effectively
k l i g the legislative effort, Patton Boggs presented Chief hiankdler with a memorandum on iln
(<
Op&fi~fnr hrhfisls R!s.p,:be",r_!,&s
3eso!ut;,~n"&tc$ Q c t ~ b s 21, 1494. ExnlDlr:n .-.-r . ., vllc
1 - 1
option was to reactivate the Claims Court litigation, and press the Government to bring the trespass/quiet title actions. Another was to renew the legislative settlement efforts in the new Congress. C h e f Mankiller opted to reactivate the litigation in December 1994. Exhibit 10. Patton Boggs then conceived of the strategy that turned the comer in the mismanagement litigation and ultimately resulted in the instant settlement. Rather that simply appear in court for a status conference and, there, try to convince Judge Tidwell to cease his suspension of the litigation until the trespass suits were concluded, Patton Boggs presented an enormous (4 inch thick) status report on the entire case. The very next day, on February 17, 1995, Patton B o g s procecdcd to the Federal Circuit Court of Appeals to file a Notice of Interlocutory ilppcal of Judge -l'id\vcli's stay as tantamount to a final j u d p c n t under the "death kncll" tl~cory.~ While there was some risk that the Federal Circuit might rcjcct the appcal as premature, tl~cre also was hope for a more positive, and comprchcnsi\-c ruling at a faster pace.' [ndccd, on Alarch 16, 1995 the Fedcral Circuit issucd an
VOrdinnnlv, a p;trty c:anr~ot 3ppe:tl from a 'l'riill judge's c d c r unt~l cntcrs a filial judglncnt. In socne cascs. ho\~--s\.er, lie ir\tcricn orders constitute the "dcarh kncll" for the GISC rid. :ISa rcsulr. :Ire coniidcrcd cssenti;llly rc) I)e tinal judSlni.nts from 1-hiirh appeal cnti be t;tken. I l i c (Ihrrokec X;~tioti's appciil. :rnd p:lr:illcl (.:hocr;i\v/C:hickn~;tu. appc:~l. iriclucled :tII ~i the rril~al claims+\-cn those \~-hichudgc 'Sid\vcll Iiiid d~-;misscd c;irlicr skirmishes 1)ciorc-he suspcrldc-d tllc J in pmcccdir~gs sltngcther.
- I'nttnri Bo*qs' :izercsn-e mo\x ~ntrisuccl J11-n \S'ilcc,scn, who requcbrcd iriform:~ti\-e rn:lrcri;tIs;lt)out rhc l.r\r->tiit. I';tttc,n Rogqs responded promptly. I.:shil~irI I .
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otder hecting Cherokee Nation to show cause within ten days why its appeal should not be dismissed as premature, and requiring the government to respond seven days thereafter. The Circuit Court's quick response apparently spooked the Department of Justice. Its attorneys tried, unsuccessfully, to persuade Patton Boggs to drop the appeal and "jointly" ask Judge Tldwell to lift its stay as an effort "in both our interests." Exhibit 12. O n hlarch 27, 1995, Patton Boggs filed Cherokee Nation's response. Exhibit 13. A month later the briefing schedule was suspended, at the parties' request, u n d the Cc?crtAec,ided :vhe&er 1: had i!As&c?1.3n .nvei. the appeal. Unfortunately, it then took almost a year for the Court to act. O n or about April 12,1996,
the Court decided to hear the Cherokee Nation's appeal and called for briefs in support of the
appeal within 30 days. Exhibit 14. By that time, however, Chief Joe Byrd had succeeded Chief Mankiller and was proceeding to replace nearly all of her key staff and counsel. Du&g this time period, Patton Boggs was informed that its legislative services on various non-Riverbed matters were no longer required. Chief Byrd, however, had not made a definitive decision on how to proceed on the Arkansas Riverbed litigation. Therefore, by letter dated April 18, 1996, Patton B o w wrotc to Chief Byrd informing him of the tkderal Circuit's decision to hear Cherokee Nation's appeal and of the need to file a brief in 30 days. Exhibit 15. Patton Boggs also prepared for Chief Byrd a comprehensive memorandum, which cntitlcd "Status of Cherokee Nation's outlined in some dctail what would need to be l~riefed, XIismanagement CIlaim .\gainst the C.S." datcd .\pi1 30, 1996. llxhibit 16. I'rcsumably respor~ding
in (':hie 0yrd's absence,' the then Cherokee Gcncral (Iounsel, Susan Work, scrit a lettcr dated
,\pril 33, 1996, directing that Patton Bc~tgs \t.itlidra\v as counsel of rccc)rd in the mismanagement
*
111
follow-up c:~lls: rhe 'l'ril)e,I'arton Hoggs was ~nfcirrned h ~ tth e (:hicf\\.:ls o u t of rhe corclltr).on a trip to India. to i
8
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litgation and send aU the files to Cherokee Nation. Eslubit 17.' Shortly after Patton B o a s ivas informed that the case would be transferred to the law firm of Chief Bkd's brother-&-law, it ivas Jim lvilcosen who sent a letter dated May 1, 1996 advising that the administration of the Cherokee Nation had requested that he enter h s appearance in the Federal Circuit proceedng. Estubit 19. The Wilcoxen letter directed Patton B o g s to send the complete liugation file to tus office and "not to cause any briefs to be prepared or filed" in the case. Enclosed were a motion for Patton Boggs to withdraw as counsel of record, and a motion to give Wilcoxen an adcbtiona! 60 days to prepre the btief awaited by the Federal Cucuit. Had Patton Boggs not been improperly and unjustifiably terminated, whch occurred for n o reason other than the change in leadership of the Cherokee Nation, that brief would have been filed in no more than 30 days on May 18, 1996. Instead, the only promising suit for Riverbed-related damages ever filed on Cherokee Nation's behalf was buffeted among attorneys who had enormous learning curves to overcome - not just Jim Wilcoxen, but also Washington-based James Hamilton of Swidler & Berlin, who apparently was retained as lead counsel in the Federal Circuit proceedmgs.
No doubt Cherokee Nation paid substantially for these transitions, both in terms of lost time and
money.
I3 and C -- Narrattve of Time f:.spcnded and Pavmcnts Made L'ndcr I'atton Boem Contract
,\lthough the time cspcndcd cxcccded this amount 11). many fold, the terms of its 1,itigation Rcprescntation Contract pcrmittcd I'atton 13oygs to lill Cherokee Saticin a masimum of S5,OOO pcr
'Illis x n o n w;is In I~reuch ~ I'xrrc~nf ~ a . q d . ~ r ~ g s t(:trilrmct \r-hich, 11). irs rcr~ns, t t ion cc~uld l t l t !)c tcrm~nstccl I I-,! <:hcrokce S ~ t i o n w~thout dctcrmin:irion of the Tnl);~l s Coc~~lcii "c:tuse7' ;tcld dccmed 1,). rhe 13L.l ro lpc rc:lso,l:tl,lr ; ~ n d satishcror?-after C(I days rlc,rice to thc pirrtlcs in rlltercsr. 'Ihcrc ol)vioilsl\-WJS n o "caux" . ~ n d ccrtsilii!- no -'cause" dcclntd reason~ltlc!. an!-one uith ;~ttrhont\. clo so under ~ h contrxct. In f:ict, 1i1 e:trlicr letters from Chief t3yrd. ;is ;n I, ro c Susln \'iVork'sletrcr. P;irron l\o
'I
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month for litigation-related work beginning in januaty 1989. Throughout the over seven (7) \-ears that they senred as Litigation counsel, Patton B o g s attorneys worked thousands of hours on h e mismanagement litigation. Beginning in 1994, Patton B o g s attorneys also spent sigmficant time, energy and resources towards a legislative settlement effort. i\fter preparing and filing the appeal in the Federal Circuit in February 1995, the litigation activity Level duninished somewhat while Patton Boggs awaited a d n g from the Circuit Court. For t h s petiod as just described, Patton Boggs attorneys, law c!erks
pzrz!ez.,!s .. -
IefcLIded
oc-ci 6,40fi
ti.Gi-t~. ~ $ 1
. S ~ P ,~ ~ - ~&L -~c~ t i : ~ ~ , n ; ~ 6
Reeder, BLUFoster,
work. Each o f the partner-level attorneys who worked intensely o n the case
Allen Foster and Kate Boyce) did so at substantially reduced billing rates (50% or less of their nonnal rates). They rarely recorded all of the time they spent prosecuting the litigation, o r Lobbying for settlement legislation in 1993-1994. Consequently, the 6,388 hours of time that was formally recorded o n the mismanagement Litigation and legislation represent only a fraction of the actual efforts expended by Patton Boggs over the years o n behalf of the Cherokee Nation. In all there were over twenty lawyers and paralegals who worked on behalf o f the Cherokee Nation o n the Arkansas Kiverbed litigation and legislation efforts. 11s noted above, and jiscussed in more detail below, the 1,itigation Representation Contract provided for the Cherokee Nation to pay Patton B o w a cap of $5,000 for attorneys fees. Lndcr this Contract, the f 5,000 in monthly fees, once paid, could be aggregated and backed out o f the "additional compcnsatir)n" of 10% of any future monetary rccovcq-. -1'hc maximum amount tl~at Patton B a could have charged for lcgal fees was S410,000 during the 88 months beginning os lanuarv I, 1089 through tllc end of .\pril 1906, when ['atton noggwvas officially asked to withdra\v
as counsel of tccord in the mismanagcmcnt litigation. Instcad, Patton Uocggs cc,ntained costs to the
masimuln csterlt possible. I-urthcrmore, I'atton Bogssubstantially reduced its acti\.ity while the 1:ederal Circuit n---ns considering Chcrokcc Nation's appeal of the Court oi(:laims Stay. .\fter C;l~icf
10
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Byrd's October 1995 letter uldicating that the Ttibe might pursue its Ebverbed claims in a dfferent fashon, by a dffcrent team of attorneys, Patton B o a s engaged only in activity necessary to remain ready to jump immcdntely into preparation of any filing required by the Federal Circuit. Therefore, the total amount Patton Boggs billed and collected for legal fees under the Ltigation Representation contract was $403,959.'" While virtually all of the legal theories, briefs and day-to-day strategy for the Cherokee, the Choctaw and Ctuckasaw Natiern pursued frsm the vcr;
outset
of t!i& &pure r:emrneG ::ern the
.
"
inspiration (and much of the perspiration) of Patton Boggs attorneys, Patton Boggs is entitled only
to ten percent (lOO/o) of the non-Choctaw/Ctuckasaw portion of the $40,000,000 legislated
settlement of Civil Action to 218-89L, which Patton Boggs tiled in 1989. This totals $2,000,000, less $403,959 paid by Cherokee Nation for attorney fees under the Litigation Representation Contract. Therefore, the total claim of Patton Boggs is $1,596,041.00.
D -- Position on Contract Terms/r\btu~tNotice of Termination on April 23.1996
Pursuant to its Litigation Representation Contract, Patton B o w ' duty was to represent the Cherokee Nation -in connection with claims whch said Cherokee Nation may have undet any treaty, Act of Congress, othet laws, or regulations for damages or equitable relief arising from the \lolation of the duties of the Cnited States to protect the tribal lands and to manage the tribal resources of said C:hcrokee Xation. Exhibit 1, at 1.
Patton Bog& specific assignment was -to pursue either through the litigation proccsscs or complcmcntnry legislative cffotts, a rcsctlution by way of settlement to rccctmpcnse the Cherokee Nation. . . Id. at 2 .
'" 'l11is.tigureis 11:lscdon reco~~stmcrcd files I)cc:~r~sc UoKqs chnngcd .lutornarcd I~illuigs!stcrns In 1'100. I~illing l3;arron
1 result. rhe finn's computer records cannot producc a runnillg rally from !:lnr~;ary 1089 through .\pril 1096 c t f profcjsional hours workcd. legdl fccs l)llled, and lcgll iccs p i d .
.is
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The Cherokee Nation agreed t o pay Patton Boggs, as current motlthly compensation an amount not to escecd $5,000 per month for fees. . . and for actual out-ofpocket costs espended in direct prosecution of said litigation . . . id.
--
In providing for the 10°/o payment, Cherokee Nation acknowledged that Patton Boggs would provide "considerably more legal services and incur more in fees" than the current monthly compensation authorized. To account for t h , the Contract further specified as follows: Accordingly, it is agreed that, upon agreed monetary or other quantifiable recovery .. . . ; . . .- \ I L L for the Chpmke Na5ss, :boaEh b;iv^iliit-,c &olr!oi;xr~- p ~ ~ c c --s..~ , L '**F---~ ~ .-~ I b y ~ :he a"' -" shall receive from the Cherokee Nation addrtional compensation of ten percent (lOO/b) of the amount recovered less the amounts previously paid by said Cherokee Nation for attorney fees pursuant to this Contract for Litigation;. . . Id. at 3,"
u
Never, under anv circumstances, would Patton Boggs have undertaken the mismanagement litigation as a contingency matter and put in over seven years of work for a contingency amount than 10°/o, w h c h is lower than any other percentage contingency to which the fum has ever agreed. The Liagation Representation Contract makes it abundantly clear that the prospects of decades of successful attorney work without adequate compensation was never intended by Patton Boggs o r Cherokee Nation. Nor would Patton Boggs ever have undertaken this complex and protracted representation without esptcss contractual protection against a whimsical discharge after years and thousands of hours of hard work. It is for this precise reason that the Contract expressly provided for a
\\11ile not app1ical)lc:in this case, cvcn if I'arton Roggs llad 11ccn tcrlnirlarcd "tor causc" (\r-hich it was t~ot',.the contract ~pccitically provided for ;ldJitioual attorneys fccs in the
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