Keith Harper is a member of the Cherokee Nation.

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.