The Cherokee Nation of Oklahoma v. United States

69 Fed. Cl. 148, 2005 U.S. Claims LEXIS 378
CourtUnited States Court of Federal Claims
DecidedDecember 19, 2005
DocketNos. 89-218L, 89-630L
StatusPublished
Cited by6 cases

This text of 69 Fed. Cl. 148 (The Cherokee Nation of Oklahoma v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 2005 U.S. Claims LEXIS 378 (uscfc 2005).

Opinion

OPINION AND ORDER

DAMICH, Chief Judge.

I. Introduction

This matter is before the court on Patton Boggs LLP’s (“PB”) Motion to Intervene pursuant to Rule 24(a)(2) of the Rules of the United States Court of Federal Claims (“RCFC”) and PB’s Motion for Attorney’s Fees.1 Both Plaintiff Cherokee Nation of Oklahoma (“Cherokee Nation”) and Defendant United States government (“government”) oppose PB’s motions. For the reasons discussed herein, PB’s Motion to Intervene is GRANTED. PB’s Motion for Attorney’s Fees is DENIED as moot, because PB has withdrawn its claim for equitable remedies upon which the motion was largely based. However, as PB has indicated that it wishes to pursue a claim for money damages against the government, and as the court has. found that it has jurisdiction over such a claim, PB has leave to file a complaint. PB shall file its complaint by January 19, 2006.

II. Background

In 1989, Plaintiffs filed suit in this court seeking damages for the government’s use and mismanagement of tribal trust resources along the Arkansas River.2 The case was reassigned to this judge on January 27, 1999. Shortly thereafter, the parties requested that the court stay the case pending settlement negotiations. Settlement negotiations were fruitful and resulted in the Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act of 2002 (“Settlement Act”). See Pub.L. No. 107-331, 116 Stat. 2834 (codified at 25 U.S.C. §§ 1779a-1779g (2005)). The Settlement Act conferred certain benefits on the Plaintiffs, and in return for those benefits, Section 1779c(a) required them to “enter into a consent decree with the United States that waives, releases, and dismisses all the claims they have asserted or could have asserted in their cases ...” before the court. 25 U.S.C. § 1779c(a). This section further required the parties to “lodge” the consent decree with the court and then “move for [its] entry ... at such time as all appropriations by Congress ... have been made and deposited into the appropriate tribal trust fund account____” Id. Finally, section 1779e(a) provides that “[u]pon entry of the consent decree,” the Plaintiffs’ claims against the government “shall be deemed extinguished.” Id.

On January 8, 2003, the parties’ lodged the consent decree with the court. The parties’ representatives signed and dated the consent decree. It has not, as of yet, been signed by this court nor have the parties moved for its entry.

The Settlement Act contains a specific provision regarding the payment of attorney’s fees. Section 1779e(a) provides:

At the time the funds are paid to the Indian Nations, from funds authorized to be appropriated [by the Act], the Secretary [of the Interior] shall pay to the Indian Nations’ attorneys those fees provided for in the individual tribal attorney fee contracts as approved by the respective Indian Nations.

Id. § 1779e(a).

This provision, however, is limited by section 1779e(b), which provides that “the total fees payable to attorneys under such contracts with an Indian Nation shall not exceed 10 percent of that Indian Nation’s allocation of funds appropriated under____” the Act. Id. § 1779e(b). Since the Cherokee Nation will receive a total of $20 million in appropriations under the Settlement Act, $2 million is available for the payment of attorney’s fees.

[151]*151As envisioned by the Settlement Act, Congress has appropriated each fiscal year, from the date of passage of the Act, partial appropriations, such that by sometime in 2007, the entire $20 million will have been appropriated.

On March 30, 2005, the Cherokee Nation provided the Secretary of the Interior with resolutions indicating how it believed the attorney’s fees should be distributed to the attorneys. PB’s Mot. at 11. The fee schedule set forth in the tribal resolutions allocated $151,000 to PB and various amounts to the other attorneys who had worked for the tribe. PB’s App. at A-65. The total amount determined by the resolutions, however, did not exhaust the $2 million available for the payment of attorney’s fees under the Settlement Act.

In response to the resolutions, PB submitted corrections to the Cherokee Nation’s General Counsel, wherein PB claimed entitlement to the entire $2 million of available attorney’s fees. PB’s Mot. at 12. As a result, the Secretary became involved in this dispute. Finally, after PB and the Cherokee Nation submitted several letters to the Secretary regarding their contrasting views on the matter, on October 13, 2005, the Associate Deputy Secretary informed PB and the other attorneys that he “determined that the Secretary is required to pay only those fees approved by the tribal resolutions after the Settlement Act became effective____” Id. at 13-14; PB’s App. at A-86. In the same letter, Mr. Cason indicated that the attorney’s fees would be dispersed according to the Cherokee Nation’s resolution “within two weeks.” PB’s App. at A-86. Mr. Cason also stated that, “[u]pon payments of these attorney fees, the balance remaining in the Cherokee attorney escrow account will be disbursed to the Nation and the account will be closed.” Id. On October 18, 2005, the Secretary disbursed the attorney’s fees in the amounts determined by the Cherokee Nation. PB’s Mot. at 14.

Disappointed by Mr. Cason’s decision, on October 19, 2005, PB filed three motions including a Motion to Intervene, a Motion for a Temporary Restraining Order, and a Motion for Attorney’s Fees. The goal of these motions was to prevent the Secretary from disbursing the balance of the attorney fee escrow account to the Cherokee Nation until the court determined whether PB was entitled to additional attorney’s fees.

The court held oral argument on these motions on October 20, 2005. One of the issues raised during oral argument was the ability of the court to issue a temporary restraining order prohibiting the Secretary from disbursing the balance of the escrow account. Shortly after the hearing, and at the request of the court, the Secretary, in the interests of justice, agreed not to transfer the balance of the account to the Cherokee Nation, so as to afford the court adequate time to consider the issues raised by the motions. The Secretary agreed to stay the transfer of funds until December 19, 2005, the date set by the court as a reasonable time within which it could hear further argument and rule on the motions.

On October 24, 2005, the court ordered PB to file supplemental briefing addressing two issues including: (1) whether PB may intervene; and (2) what relief, if any, is the court empowered to grant. On November 3, 2005, PB filed a supplemental memorandum wherein it indicated that the supplemental memorandum replaced its previous motions. Due to the Secretary’s decision to stay the transfer of funds, PB also stated that it was withdrawing its Motion for a Temporary Restraining Order. Although styled as a “supplemental memorandum,” PB essentially filed a motion to intervene and a motion for attorney’s fees alleging entitlement to additional fees under its retainer agreement with the Cherokee Nation. The court will treat it as two separate motions. Id. at 1.

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Bluebook (online)
69 Fed. Cl. 148, 2005 U.S. Claims LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-cherokee-nation-of-oklahoma-v-united-states-uscfc-2005.