Lawyers representing Native Americans helped win a record $3.4 billion settlement with the federal government.
Now they want a judge to double their fees.
Instead of being paid up to $99.9 million, as initially agreed, attorney Dennis Gingold says he other lawyers deserve at least $224 million for their work on the case since 1996.
He and other lawyers "have achieved a stunning landmark victory in this case," Gingold wrote in a 25-page motion filed Jan. 25 in federal court in Washington. "No lawyers have done so much for so many people in this circuit."
Not only was the $3.4 billion settlement a record for Native American claims against the government, but the lawyers also "accomplished that which Congress could not do and the (U.S.) attorney general would not do, and have aided a group long abused to stand up against the abuse," Gingold wrote.
For their efforts, $99.9 million "is so far below governing standards that it would be inconsistent with federal law," Gingold said. Instead, he, Thaddeus Holt, Keith Harper and other lawyers deserve at least $223 million in fees, plus $1.3 million in expenses and other costs, Gingold said.
U.S. District Judge Thomas Hogan has not ruled on the request, but the Justice Department has filed a motion opposing it, and two senators who played a key role in approving the settlement called it outrageous.
Former Sen. Byron Dorgan, a North Dakota Democrat who chaired the Senate Indian Affairs Committee, called the fee demand "shameful" and said "every dollar from the settlement that goes to the lawyers is a dollar that is taken away from the victims."
Dorgan called it a "cruel irony" that the same lawyers who were working on behalf of Native Americans are now arguing against their interests.
"It just makes me angry," said Dorgan, who retired in January and now works as a policy adviser at a Washington law firm.
Native Americans "were the real victims hurt in this case," he said. "This should not be, in the end, how much the lawyers get."
Emily Lawrimore, a spokeswoman for Sen. John Barrasso, R-Wyo., said Friday that Barrasso believes the settlement included extremely generous compensation for the plaintiff's attorneys.
"They agreed not to ask for more than $99.9 million in attorneys' fees, and that was the message they sent to Congress and Indian Country before the settlement bill was signed into law," Lawrimore said. "Every extra dollar the lawyers receive will mean less money reaches the folks who need it most in Indian country."
The Justice Department, in its brief, called the request "grossly excessive" and said the lawyers should receive $50 million, the minimum amount agreed to under the settlement.
Fifty million dollars "is more than fair and reasonable in light of the record in this case," Assistant Attorney General Tony West wrote.
Gingold, in a telephone interview Friday from South Dakota, where he is meeting with Native American groups about the case, said his request for more money was justified, adding, "There's no surprise here."
Under the settlement, $99.9 million is not a cap on legal fees, as Dorgan and Barrasso contend, Gingold said. Instead it is a "clear sailing" figure that prevents the Justice Department from filing an appeal. An award by Hogan for more than $99.9 million in legal fees is subject to appeal, Gingold said.
Gingold said he and Holt have been working on the case since December 1995 and have not been paid by the plaintiffs in all that time. He called it a "seven-day-a-week" case that has forced him to abandon his Washington law practice.
The lawyers represent Elouise Cobell, a Montana resident and member of the Blackfeet Tribe who was the lead plaintiff in a 15-year battle to reclaim royalties lost by Native Americans for more than a century. At least 300,000 Native Americans say they were swindled out of royalties overseen by the Interior Department since 1887 for oil, gas, grazing and timber rights.
Congress approved the $3.4 billion settlement in December.
The settlement calls for $1.5 billion to go to individual Indian account holders _ a number that will likely end up between 300,000 and 550,000. About $1.9 billion would be used by the government to buy broken up Indian lands from individual owners and then turn those lands over to tribes. An additional $60 million would go to a scholarship fund for Indian students.
Cobell, who stands to win $2 million, said Gingold and the other lawyers deserve the money they are seeking.
"You've got to think about how many years of litigation we had _ and this was not easy litigation," she said Friday. "It was tough, contentious litigation."
The victory achieved in the case goes far beyond money, Cobell said.
"What it means is, we have rights now," she said. "We have statutes and laws that we never had before and finally, finally individual Indians mean something to the government. They can't get away with what they got away with in the past."
Cobell said she has been forced to raise about $13 million for legal costs, including oil and gas experts, accountants and other specialists. The money has come from individual donations and grants from foundations that in most cases must be repaid. Gingold has requested more than $13 million in reimbursements for Cobell and three other named plaintiffs in the case.
A hearing is scheduled June 20.