Godfroy v. United States , 467 F.2d 909 ( 1972 )

Laramore, Senior Judge,

delivered the opinion of the court:

The appeals involved herein are from a decision by the Indian Claims Commission allowing and apportioning attorneys’ fees based on recoveries by the Miami Tribe of Indians. Pursuant to an opinion of April 11, 1972, 198 Ct. Cl. 1, 458 F. 2d 93, this court reversed in part the decision of the Indian Claims Commission and remanded the cases to the Commission with instructions to reapportion the subject fees in accordance with that opinion. The appeals come before the court at this time on a Motion for Behearing, filed May 10, 1972, by the attorney of record for the Miami Tribe of Oklahoma group, appellants in No. 8-71, and a response to that Motion by the attorney of record for the Miami Tribe of Indiana group, appellants in No. 6-71. Briefs amicus eu/riae in support of the Motion were filed by the firm and individual indicated above. After consideration thereof, and for the reasons which follow, the Motion for Behearing is granted, the decision of April 11, 1972 is vacated and withdrawn, and the decision by the Indian Claims Commission involved in these appeals is affirmed.

The opinion of the court affirming the Commission is as follows:

The problem presented arises because there are two identifiable tribes that are qualified to retain attorneys pursuant to the Indian Claims Commission Act, 25 U.S.C. § 70n (1970), but only one award made in two parts to the Miami Indian Tribe.¹ One of the descendant tribes, the Oklahoma Miamis, by their authorized attorneys, filed claims with the Indian Claims Commission which were designated as Docket Nos. 255 and 256. These claims included the same lands in Northern and Central Indiana that were covered by claims filed on behalf of the other faction of the original Miami Tribe, the Miami Indian Tribe of Indiana. The cases filed on behalf of the Indiana Tribe were designated as Docket Nos. 124 — C, 12A-D, 124-E and 124-F. Thus having six separate cases with a question common to all, the Indian Claims Commission consolidated the cases into two separate dockets. The first, with a combined Docket No. of 124-C/2.55 arose from the cession of a reservation under a treaty made in 1828 and was finally resolved through settlement of the claim for the sum of $66,966 (20 Ind. Cl. Comm. 97 (1968)). The second case, with a consolidated Docket No. of 124-D, E, F/256 arose from the cession of 13 reservations by the Miami Tribe under three different treaties, one made in 1834, effective in 1837, one in 1838 and the other in 1840. These cases were also finally determined by settlement following a trial on the merits for the final amount of $1,373,000 (20 Ind. Cl. Comm. 118 (1968)).

In the prosecution of these claims the Miami Tribe of Oklahoma was represented, pursuant to Contract No. 42017, which was approved by the Bureau of Indian Affairs May 10, 1948, by the law firm of Sonnenschein, Levinson, Carlin, Nath & Rosenthal, but individually by Mr. Louis L. Rochmes. The Miami Tribe of Indiana was originally represented by Walter H. Maloney, Sr. by virtue of Contract No. 950 which was approved by the Bureau of Indian Affairs on June 7, 1951. Thereafter, the contract and representation was partially assigned to Walter PI. Maloney, Jr. (with Walter PI. Maloney, Sr. retaining “of counsel” rights) and the law firm of Kiley, Osborn, Kiley & Plarker who in turn associated with Robert C. Bell, Jr.

Following the successful prosecution of the Indian claims, both sets of attorneys filed with the Indian Claims Commission for their fees. Both sets of lawyers were allowed the maximum 10 percent fee but no agreement could be reached between the lawyers as to how they should be divided. Therefore, application was made to the Indian Claims Commission for a decision as to a proper division of the fee awards. The Commission found, by their opinion of February 18, 1971, that both sets of attorneys had valid agreements with their respective tribes for the maximum 10 percent fee and that both were diligent in representing and protecting the interest of their respective clients. (24 Ind. Cl. Comm. 450 (1971)). They, therefore, allowed the fee of $6,696.60 for Docket Nos. 255 and 124 — C and a fee of $137,300 for Docket Nos. 256 and 124-D, E, and F. It was further decided that upon consideration of services rendered and the relative contribution made by each that the fees be apportioned on a basis of 70 percent of each fee to the law firm of Sonnen-schein, Levinson, Carlin, Nath & Rosenthal, and 30 percent of each fee to the attorneys for the Miami Tribe of Indiana. From that decision the Oklahoma Tribe attorneys filed Appeal No. 6-71 wherein they seek an increase of the allocation with reference to Docket No. 124-D, E, and F/256. The attorneys for Miami Tribe of Indiana appeal in No. 8-71 seeking adjustment of the allocation in respect to both the above Docket No. and 124-C/255. After consideration of the appeal of the Indiana group and the cross-appeal of the Oklahoma attorneys we affirm the decision of the Indian Claims Commission.

While the type of case we have here is somewhat unusual, it is not the first time this court has had occasion to consider the problem. In Chickasaw Nation v. United States, 121 Ct. Cl. 41 (1951), a similar case was considered by this court except that in Chickasaw the appellant-intervenor was not an attorney of record. Because of that fact, this court dismissed the intervenor’s petition stating that:

Any dispute or claim by attorneys other than attorneys of record for services rendered whether by private contract or other obligation must be settled between the parties themselves or in another forum. [Chickasaw, supra at 45]

See also, Beddo v. United States, 28 Ct. Cl. 69 (1893); Creek Nation v. United States, 79 Ct. Cl. 778 (1934).

More recently, however, we entertained the case of Red Lake and Pembina Bands v. United States, 173 Ct. Cl. 928, 355 F. 2d 936 (1965). In that case the factual pattern was even more like the present situation in that the attorneys who could not settle on a division of fees were both attorneys of record. Therefore, the holding in Chickasaw, supra, was not in point and this court thus had to consider the jurisdictional aspects in greater detail to decide if the Indian Claims Commission was authorized to make a final determination on the matter of entitlement. Preliminarily, it was held that the Commission had jurisdiction to determine whether the attorney applying for a fee is entitled to the compensation for which he had applied. This question was held to be clearly within the jurisdiction of the Commission since the determination of entitlement depends solely upon whether the attorney of record has performed “services” for his client pursuant to the terms of 25 U.S.C. § 70n, and there is no better place than the Indian Claims Commission to decide that question. Therefore, once it was determined that the entitlement issue was within the jurisdiction of the Commission, it was also decided that this court has jurisdiction to review since section 20(b) of the Indian Claims Commission Act, 25 U.S.C. § 70s(b) (1970) gives this court jurisdiction to review any “final determination” of the Commission.

Following the resolution of the jurisdiction question as to entitlement, this court was subsequently called upon to decide if the Commission had jurisdiction to go beyond entitlement to rule upon apportionment. In Sisseton and Wahpeton Bands or Tribes v. United States, 191 Ct. Cl. 459, 470, 423 F. 2d 1386 (1970) this court stated, in distinguishing the Sisseton case from the Beddo case, supra, that:

* * * Under the Indian Claims Commission Act, the Commission must determine that such a fee-claiming attorney has rendered services “in prosecuting the claim in question” before he becomes entitled to compensation. Red Lake and Pembina Bands v. United States, supra, 173 Ct. Cl. 928, 933-34, 355 F. 2d 936, 938-39. If he is so found, payment is directed from the funds in the hands of the Government. The Act thus provides, in effect, that such a request for fees is an action against the United States of which the Commission (and this court, on appeal) has jurisdiction.

Moreover, and speaking directly to the apportionment question, it was decided that:

* * * [no] other tribunal [Commission] can or is likely to know as much about the relative participation of the claimants. There are no private dealings or arrangements * * * to consider or adjudicate. The issue wholly depends on an evaluation of the contribution of the two independent sets of lawyers to the final result * * *. The task is one for which the Commission is uniquely fitted [footnote omitted; ibid, at 470-471].

Proceeding then with the substantive issues, we must return to the Red Lake case, supra. In Red Lake, the rule for entitlement, 'as developed, was that in order to be 'awarded a fee services must have been performed. More specifically, Judge Davis, writing for the court, stated:

* * * The fees are specifically characterized ’as being ‘“for all services rendered in prosecuting the claim, in question”, and the Commission is told to set an amount which is “adequate compensation for services rendered and results obtained” (emphasis added). Congress thus made the performance of services a sine qua non for compensation. [Red Lake and Pembina Bands, supra, at 933]

Further developing the standards for entitlement, the Bed Lake decision emphasized that the services rendered must be in prosecution of “the claim in question” — the claim in question being defined as “* * * the demand, founded on the Treaty of October 2, 1863, supra, * * * .” (Red Lake and Pembina Bands, supra, at 937). Moreover, Judge Davis explained that:

Where the “claim in question” is joint or combined, it is not a service in prosecution of that common concern to advance a particular advantage of only one of the interested groups at the expense of the others. The services for which the attorneys are to ¡be compensated out of the * * * recovery consist of efforts to create and preserve that fund, not of unsuccessful attempts to capture it for one entity. [Footnote omitted; emphasis supplied ; Red Lake and Pembina Bands, supra, at 938]

Thus, in Red Lake, Mr. Mills, the attorney seeking a portion of the attorney fees, was denied recovery since there was substantial evidence to show that his efforts were made not for the common concern, i.e., the prosecution of the claim by the larger tribe to recover for lands ceded under a specific treaty, but instead his efforts were shown to be made for the benefit of only a portion of the larger tribe to the exclusion of the others. With that principle there can foe no argument; moreover, it is clearly one that can be applied to more than just Mr. Mills in the Red Lake setting. Indeed, we are of the opinion that the standard heretofore enunciated is one that should be applied to other similar situations and this case is no exception.

Like Red Lake, the case at bar also involves claims arising from treaty cessions by Indian groups which, between the terms of the treaties and the passage of the Indian Claims Commission Act, supra, had been divided into separate groups which filed separate petitions by separate counsel. The only difference that exists in this case is that here the attorneys are both entitled to a fee while in Red Lake one of the parties was not. Nevertheless, that difference does not vitiate the applicability of Red Lake since we are of the opinion that the question of entitlement is so closely related to the issue of apportionment that the same principles should be used to determine both.

In this case, attorneys for the Miami Tribe of Indiana appeal to us to increase the Commission’s allocation of fees from 30 percent to 71 percent. This figure is based upon, first, the finding by the Commission that said attorneys are entitled to their fee and, second, the assertion that since the attorneys represent 71 percent of the present day descendants of the original Miami Tribe of Indians their part of the total fee should be allocated accordingly. Therefore, argues the Indiana attorneys, they should have 71 percent of the combined fee. Said Indiana counsel further argues that since distribution of the final award will be made on a per capita basis, 71 percent to the Indiana Tribe and only 29 percent to the Oklahoma contingent, the allocation of fees decided upon by the Commission should have been on a similar basis.

Throughout the Indiana attorneys’ briefs, as well as in oral argument, great emphasis is placed upon the pure number of Indians each counsel represents as the indicator of how much each attorney should receive as their share of the lump-sum ten percent fee. On the other hand, the Oklahoma attorneys emphasize that the question should not be decided on the basis of the ultimate per capita, distribution but instead should be decided on the basis of each attorney’s relative contribution. Like the Indiana attorneys, however, Oklahoma counsel also argue that the Commission erred in Docket No. 124-D, E, F/256. They erred, allege the Oklahoma group, not in their method of determination, but in the ultimate figures arrived upon. Oklahoma counsel feel that in judging the performance of the opposing groups, on a relative contribution standard, the Commission should have determined that the Indiana attorneys contributed nothing to the common concern and should, therefore, be entitled to no part of the fee allocated to Docket No. 124-D, E and F/256. They evidently concede that in Docket No. 124-C/255 Indiana counsel made at least a 30 percent contribution in achieving the ultimate settlement of $66,966 and, therefore, do not appeal that portion of the Commission’s determination.

In resolution of the opposing positions of each group of lawyers we cannot fully agree with either side. As has been pointed out, the standard of Red Lake appears to us to be logically sound and legally applicable. By its very basic approach of connecting the determination of fees to the performance of services it necessarily excludes the proposition that fees are to be determined on a par with per capita distribution. That general proposition together with the further refinement of making those services specifically relate to the common concern persuade us that a per capita allocation is improper. However, because we cannot ignore the many hours and years of effort put forth by Mr. Maloney, et ah, we cannot agree with the Oklahoma counsel that Mr. Maloney and his co-counsel are entitled to nothing.

The Commission has found that all exhibits on value, which was the issue at trial, were prepared and introduced into evidence by the Oklahoma attorneys. They also found that the exhibits introduced by the Indiana attorneys only concerned the relationship of their clients to the Miami Tribe as it existed on the treaty dates, thus indicating that the services performed were not for the common concern but only for the Indiana Tribe. The Commission also found that the Oklahoma attorneys presented the expert testimony on value and handled the cross-examination of defendant’s witnesses while the Indiana attorneys’ main concern was with matters relating to distribution of the prospective awards. Indeed, the Indiana attorneys’ continued and persistent efforts to show the complete separation and autonomy of the two tribes further indicate to us that the Commission was correct in its holding and that the proper approach was taken by the Commission. The Indiana group fail to recognize that the services required to entitle them to a fee are those which advocate the impropriety of the original treaty cessions as it related to the tribe in existence at the treaty dates. At those times, 1828, 1831, 1838 and 1840, there was one Miami Tribe and it is on behalf of that tribe that recovery was sought and attained. Once that award is made the common cause has been achieved and the statutory fee has been earned. The post award services must of course be directed toward the interests of each attorney’s particular client or clients. However, compensation for that type of service is not a matter to be determined by the Commission or this court on appeal. The Commission was concerned only with the type and extent of services performed by each group of attorneys in terms of the relative contribution made for the benefit of the common concern. The Commission heard the evidence and viewed each group of attorneys in action and the Commission was, therefore, in the best position to decide the contribution of each group of lawyers. Obviously, there could be no better judge of that question than the Commission itself. On this appeal of that final determination, we are convinced that the proper standards were used and that the decision of the Commission was neither arbitrary nor capricious and that it was based on substantial evidence. We, therefore, must dismiss both appeals and confirm the holding of the Indian Claims Commission.

1 The Indian Claims Commission decided in Miami Tribe v. United States, 17 Ind. Cl. Comm. 427 (1966) that neither faction of the Miami Tribe was the full successor to the original tribe but both are entitled to represent it.