Sen. Tester’s Comments on Native Political Appointees

From yesterday:

I rise in support of the nominations of three distinguished Native American leaders, Vince Logan, Keith Harper, and Diane Humetewa. These individuals have been nominated to positions that are crucial to Indian country and to our nation. It is our responsibility to make sure that they can begin this challenging work. I think it is fair to say that no one in this chairman is happy about how the nominations have been handled. There are reasons and frustrations on both sides of the aisle, and I understand that. But in the case of these nominees, it is long past time to act.

President Obama Nominates Keith Harper as US Representative to UN Human Rights Council

Keith M. Harper, Nominee for Representative of the United States to the United Nations Human Rights Council, with rank of Ambassador, Department of State

Keith M. Harper is a partner at the law firm of Kilpatrick Townsend & Stockton LLP, where he is chair of the Native American Practice Group. He currently serves as a Member on the President’s Commission on White House Fellowships. Prior to his current role, Mr. Harper was Senior Staff Attorney for the Native American Rights Fund from 1995 to 2006. From 2007 to 2008, he served as a Supreme Court Justice on the Supreme Court of the Poarch Band of Creek Indians, and from 2001 to 2007, he served as an Appellate Justice on the Mashantucket Pequot Tribal Court. From 1998 to 2001, he was an adjunct professor at the Catholic University of America Columbus School of Law, and from 1999 to 2001, he was a Professorial Lecturer at the American University Washington College of Law. Mr. Harper was a Law Clerk to the Honorable Lawrence W. Pierce on the Second Circuit of the United States Court of Appeals. He began his career as a Litigation Associate with Davis, Polk & Wardwell in New York. He is a member of the Cherokee Nation of Oklahoma. He received a B.A. from the University of California, Berkeley and a J.D. from New York University School of Law.

Open Letter from Keith Harper

An Open Letter to Indian Country Today:

In a recent piece published in Indian Country Today entitled “White House Says Lawyer in Cobell Deal Recused on Administration Conflicts; Facts Contradict,” Rob Capriccioso makes unsubstantiated charges against the Obama administration, my firm and me. Ordinarily, I would simply ignore these attacks, but because this particular opinion piece masquerading as a news article is so replete with misstatements, groundless supposition and false accusations, I am compelled to respond. Space allows me to address only a fraction of the numerous falsities.

Typically, able and ethical reporters search for, confirm, and examine the facts. Then they write stories in good faith that are based on facts they confirm. Indeed, that is why they are called reporters and why their stories are considered news, not op-eds. Unfortunately, there are also reporters who decide to write salacious stories that conform to their preconceived notions in willful disregard of the facts. Where, as here, facts do not support their notions, they rely instead on innuendo, half-truths, assumptions, and conspiracy theories. Unfortunately, Mr. Capriccioso’s reporting falls squarely in this latter category of “journalism.”

The best way, of course, to respond to a piece of fiction is with the facts and the record.

As I understand it, Mr. Capriccioso’s principal argument goes something like this: Keith Harper represents the Cobell plaintiffs and worked on the Obama campaign and the Presidential Transition Team, therefore, there must be some legal or ethical conflict.

But Mr. Capriccioso is wrong and his charge is baseless because it is a matter of record that I recused myself from Cobell during my service. When he first raised this issue, one of my colleagues, Dennis Gingold, confirmed in no uncertain terms, weeks ago, that I had recused myself during both my campaign and Transition Team service from all Cobell issues.

That means that I did not participate, directly or indirectly, in the discussion of any Cobell matters. The Administration, subsequently, also confirmed that I had self-recused from Cobell issues at all relevant times. Ms. Cobell knew of this action and approved of it.

Since the facts ran contrary to the tale Mr. Capriccioso wanted to spin, he turned to wild speculation. Without citing any facts or evidence, he stated that I “was allowed to offer input on [my] personal work.” But that was blatantly false because I recused myself from all such issues. Then, once again, without having any facts to support it, he openly speculates as to “whether Harper recommended the hiring of the very administration officials with whom he and his firm later negotiated trust settlements.”

But the negotiations of the Cobell settlement were handled by career lawyers at the Department of Justice, along with career staff from the Departments of Interior and Treasury and overseen by District Court Judge James Robertson. There was from time-to-time involvement by political appointees, but I did not recommend any of such individuals for their positions and was not in any way part of their selection. Facts are stubborn things and should not be ignored simply to further an untrue storyline based on abject speculation.

Next, he suggests that my law firm, Kilpatrick Townsend, received special consideration in the structuring of the settlement for the Passamaquoddy Tribe. Recall that the United States settled 42 tribal trust cases for amounts exceeding $1 billion. The Passamaquoddy Tribe settled their case for $12 million. My firm had a contingency fee arrangement with the Passamaquoddy Tribe for 15% of any settlement or judgment. This contract was executed by the tribe when we were engaged nearly six years ago.

It is common, of course, for contingent arrangements to exceed 30%, so 15% is not extraordinary is any sense. What is more, the Passamaquoddy Tribe enacted a resolution this year which expressly approved of the direct payment from the United States to our firm. Thus, the notion that Kilpatrick Townsend kept information from our clients is an irresponsible fabrication.

One of the benefits for structuring a settlement so that payment of the attorneys’ fees goes directly from the government to the lawyers is that it ensures greater transparency. The court and the public know exactly how much the lawyers received in our cases. Not so for most of the other tribal trust cases because there is no specification of the fee amount in those settlements. Thus, it is also misleading when Mr. Capriccioso states that we received higher amounts in fees than “in all known cases” because there is little information about how much was received in most of the other cases.

Nor is this the only case where a law firm received payment directly, far from it. In the Osage Nation case, for example, it was widely reported that the attorneys received more than $34 million in fees directly from the United States. So Mr. Capriccioso’s statement that we received special treatment is just plain nonsense.

I continue to work on the Obama campaign informally as do many volunteers and I proudly serve as a member of the Democratic Party’s platform committee. This is the most pro-tribal President in the history of the Nation and, as someone who cares deeply about Indian Country issues, I am glad to do whatever I can in my limited powers to see him re-elected. That this administration settled the Cobell case, the Keepseagle case, numerous water settlements and 42 tribal trust cases, along with signing into law many of the key legislative priorities tribal leadership has identified speaks for itself. And there is no reason – ethically, professionally or morally — why I should not participate in our democratic process.

Indian Country Today, like all papers, should live up to the high ethical and professional standards that bind the profession and are the foundations of journalism. It is essential to an open society. Reporting the truth about people and events should not be compromised by anyone. Everyone, including Mr. Capriccioso should understand that.


Keith Harper Nominated for President’s Commission on White House Fellowships

Here. An excerpt:

Keith Harper, a Washington-based partner and chair of Kilpatrick Townsend & Stockton’s Native American practice group, was nominated to become a member of the President’s Commission on White House Fellowships. Harper, who is a member of the Cherokee Nation of Oklahoma, focuses his practice on litigation, green economy and Native American affairs.

Top Ten Indian Law Stories of 2010

Based on numbers of hits, and a nice review of the year, here is the First Top Ten Indian Law Stories of the Year:

  1. Wells Fargo v. Lake of the Torches EDC. The effort by the bank to force Lac du Flambeau to pay its obligations had been shut down by the conclusion of a federal court that the trust indenture was a gaming management contract. A Seventh Circuit appeal was briefed and argued, and is pending. Posts are here and here.
  2. Tribal Law and Order Act. Congress finally passed a piece of legislation geared at dealing with a national problem — the incredible rise of violent crime in Indian Country, and most especially violence against Indian women. Top posts are here and here.
  3. Challenges to the PACT Act. Congress’s effort to destroy what remains of Indian country tobacco sales over the internet was initially enjoined, but that injunction was lifted. The cases are now pending in the Second Circuit. Top posts here and here.
  4. Gun Lake Band Casino news. The Gun Lake Band finally began construction on its casino after more than a decade of legal challenges, only to face a difficult financing market. Posts are here and here.
  5. Bay Mills Indian Community opens casino in Vanderbilt, MI on fee land. Would probably be number 1 or 2 if it happened earlier in the year. Posts here and here.
  6. Chief Justice Roberts dissent in North Carolina v. South Carolina. Mountain out of a molehill? Maybe, but still…. Post here.
  7. Bloomberg report on Foxwoods default. Old news, but continuing to be important. Post here.
  8. Elena Kagan Appointment to Supreme Court. Plenty of speculation here on her (lack of an) Indian law record. Top posts here and here.
  9. Supreme Court 2010 October Term Preview. Here.
  10. Possible Keith Harper Appointment to Tenth Circuit. Here.

Honorable mentions include the indictment of former Sault Ste. Marie tribal official Fred Paquin; Walter Echohawk’s new book; federal court challenges to consecutive sentences by tribal courts; the Saginaw Chippewa reservation boundaries settlement, and the passing of Phil Frickey.

Update (2:30 PM): Obviously, as Alex Skibine noted in the comments section, the Cobell settlement was a huge story for the year, while probably happening too late in the year to generate enough hits to make the top ten list. Same goes for President Obama’s announcement of support for the UN DRIP.

John Echohawk on Keith Harper for the Tenth Circuit

From the Tulsa World:

At the Native American Rights Fund, we have always hired the best and the brightest to advocate for Indian rights and the orderly development of Indian law. One of the most outstanding lawyers to ever work with us is Keith M. Harper, who has been in the news lately as a potential nominee for a position on the 10th Circuit U.S. Court of Appeals.

No Native American lawyer has ever served on an appellate court in the federal justice system. I do not know if it is true that my colleague will be nominated to serve on the 10th Circuit. If it is true, President Obama is to be commended on his fine choice. I do know that Harper is highly qualified and deserves to be nominated and confirmed.

During my 40 years in the practice of American Indian law, we Native attorneys have worked toward the day that one of us would break through the glass ceiling and be named as an appellate judge. At 64, I and most other Native lawyers of my generation are not seeking judicial appointments, because those should go to younger people who can serve on the bench for a long time. Harper is 43 and could have an extended future as an appellate judge.

I know Harper and his work very well and can attest to his upstanding character and his diligent work ethic. He has a first-rate mind, a compassionate heart and an even temperament. He enjoys the respect of his peers and a well-deserved reputation as a thorough litigator and a fair judge. He was a NARF senior staff attorney for 11 years and his success as a litigator is a matter of public record.

Today, he is a partner with Kilpatrick Stockton LLP and chairman of its Native American Practice Group. He served the Obama-Biden presidential transition on the energy and environment cluster and served Obama for America on the National Finance Committee and as chairman of the Native American Domestic Policy Committee.

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