Cherokee Nation v. United States

• Decision Date: 21 January 1966
• Docket Number: No. 6-64.,6-64.
• Citation: 174 Ct. Cl. 131,355 F.2d 945
• Parties: The CHEROKEE NATION, and its attorneys, Paul M. Niebell, Earl Boyd Pierce, George E. Norvell, and Dennis W. Bushyhead v. The UNITED STATES.
• Court: U.S. Claims Court

174 Ct. Cl. 131, 355 F.2d 945 (1966)

The CHEROKEE NATION, and its attorneys, Paul M. Niebell, Earl Boyd Pierce, George E. Norvell, and Dennis W. Bushyhead v. The UNITED STATES.

No. 6-64.

United States Court of Claims.

January 21, 1966.

Paul M. Niebell, Washington, D.C., attorney of record, for appellants.

Jay H. Hoag, Duluth, Minn., filed a brief for Jay H. Hoag and his Associates, amici curiae, Marvin J. Sonosky, Sonosky & White, Washington, D. C., of counsel.

Jess Larson, Washington, D.C., filed a brief for Warren Watkins, Claremore, Okl., amicus curiae, Larson & Greene, Washington, D.C., of counsel.

Jesse L. Ballard, Tulsa, Okl., filed a brief on behalf of The Executive Committee of the Cherokee Nation, amicus curiae.

Wilkinson, Cragun & Barker, Washington, D.C., filed a brief, amici curiae.

Ralph A. Barney, Washington, D.C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for appellee.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

DURFEE, Judge.

The Cherokee Nation and its attorneys appeal from a final order of the Indian Claims Commission awarding an attorneys' fee of $1,000,000, or 6.96 percent of the final net judgment of $13,364,476.15, a reduction of $336,447.61 from the ten percent contingent fee specified in the contract between the Cherokee Nation and its attorneys.

The Government first urges that the court is without jurisdiction as a matter of law to review the determination of the Commission as to the amount of attorneys' fees. Specifically, the Government argues "that the appellate jurisdiction of this court is limited to a review of decision of the Commission as to the merits of the claim against the United States by an Indian tribe."

The Court of Claims obtains its right of appellate review over the decisions of the Indian Claims Commission under section 20 of the Indian Claims Commission Act of August 13, 1946, 60 Stat. 1054, 25 U.S.C. § 70s (1958 ed.). Subsection (b) authorizes an appeal to this court from "the final determination" of the Commission.

This court has just issued a decision on December 17, 1965 that is dispositive of this contention; Red Lake and Pembina Bands et al., Ct.Cl., 355 F.2d 936, an appeal from a decision of the Indian Claims Commission in consolidated Docket Nos. 18-A, 113 and 191; 13 Ind.Cl. Com. 574. One of the grounds for appeal by the Red Lake and Pembina Bands and their attorneys was that part of the fee order of the Commission which included the lawyers for the Little Shell and Turtle Mountain Bands in the listing of counsel entitled to share in the attorneys' award allowable to the Pembina Band. The Government also moved to dismiss this appeal on the ground that the court had no jurisdiction over the dispute as to attorneys' fees.

The present dispute does not involve this identical question as to whether an attorney applying for a fee has performed any services "in prosecuting the claim in question" under section 15 of the Indian Claims Commission Act.

However, the issue in the present appeal as to the amount of attorneys' fees raises the same basic jurisdictional question, viz., Was the order of the Commission fixing the attorneys' fees a "final determination" of the Commission under section 20(b) of the Act? Certainly, if the decision of the Commission in Red Lake and Pembina Bands, supra, as to the statutory entitlement of an attorney to any fees or consideration at all is a "final determination", it can hardly be argued that the Commission decision finally fixing the total amount of attorneys' fees in the present case is not likewise a "final determination" under the Act.

In the Red Lake and Pembina Bands et al. opinion, supra, written for the court by Judge Davis, we had this to say about the same jurisdictional objection:

Since this issue of statutory entitlement was within the Commission\'s province, this court likewise has jurisdiction to delve into it. Section 20(b) of the Claims Commission Act, 25 U.S.C. § 70s(b), gives the court jurisdiction to review any "final determination" of the Commission, as well as certain interlocutory determinations of liability. The United States argues that the only final determinations subject to review are those deciding the merits of an Indian entity\'s claim. But the Act does not say so in terms, and we know of no reason why the phrase "final determination" should be so restricted, or should be given less than its full meaning. The Act nowhere suggests that certain areas of Commission decision are to be left without appellate review and guidance; on the contrary, section 20(a) broadly empowers the Commission to certify to this court "any definite and distinct questions of law concerning which instructions are desired for the proper disposition of the claim." Nor. does the legislative history intimate that this court\'s power to review should cover fewer subjects than the Commission\'s power to decide. And from the beginning the practice of the court has been to consider issues of all types which the Commission has resolved in the course of a proceeding (if the requisite finality has been present). * * *¹ 355 F.2d p. 939

Judgment in the present case on the merits of the claim in the net sum of $14,789,476.15, less offsets, was entered by the Commission on April 3, 1961; the final order approving settlement of offsets was entered August 8, 1963, and the formal Findings, Opinion and final Order fixing attorneys' fees was dated March 24, 1964. (An earlier order had allowed $200,000 for interim attorneys' fees). Upon the entry of this final order fixing attorneys' fees, nothing was left to be done. What we have just said in Red Lake and Pembina Bands et al., supra, is equally applicable in the present case:

We have no doubt, moreover, that the Commission\'s fee-award in this case has the requisite finality. Special findings of fact were rendered on attorneys\' fees, as was a final order allowing them compensation. On that subject nothing was left for further consideration; and the fee-award was severed and severable from the judgment on the merits for the Pembinas. The disposition of this fee-matter was as final as a Commission order definitely denying intervention which this court has held sufficiently conclusive for appeal. Prairie Band of Potawatomi Indians v. United States, 165 F.Supp. 139, 141-142, 143 Ct.Cl. 131, 133-135 (1958); cert. denied, 359 U.S. 908, 79 S.Ct. 587, 3 L.Ed.2d 574 (1959). Similarly, the fee-order was final under the comparable standards of 28 U.S.C. § 1291 (review by courts of appeals of "final decisions" of district courts) and 28 U.S.C. § 1257 (review by Supreme Court of "final judgments or decrees" of state courts). See e. g., Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955); Local 438, Const\'r Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Brady v. State of Maryland, 373 U.S. 83, 85, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 355 F.2d p. 940

As a further jurisdictional objection, the Government contends that while the amount allowed is a matter in which the United States has an interest, the claim is not one against the United States. Therefore, appellee contends, any effort to increase the Commission's award of attorneys' fees would be a claim against the tribe and not the United States, and not within the jurisdiction of this court, citing United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); National City Bank of Evansville v. United States, 163 F.Supp. 846, 143 Ct.Cl. 154 (1958); and in Berkeley v. United States, 276 F.2d 9, 149 Ct.Cl. 549 (1960). However, these cases deal with the general jurisdictional power of this court to enter money judgments against the United States, and not with the specific jurisdictional power of the court to review final determinations of the Commission and where required, remand thereto with appropriate directions.

We note that in referring to the trust fund of $14,789,476.15 for the Cherokee Nation, resulting from the final determination of the Commission on the total award, the Government later contends:

"While it is entirely proper to charge that fund with a proper fee and the legitimate expenses for securing the fund, it is the duty of the Commission, or the Court in a proper case, to protect that trust fund to the extent that fees and expenses are reasonable. * * *" Emphasis supplied.

Here, the Cherokee Nation is an appellant, and has joined its attorneys as a party to this appeal from the final determination of the Commission on attorneys' fees, because of the alleged failure of the Commission to follow the directive in section 15 of the Act, supra.

Accordingly, we first conclude that this court has jurisdiction as a matter of law to review the final determination of the Indian Claims Commission as to the amount of the attorneys' fees in the present case.

A second question arises from the position of the Government that the attorney appellants, by accepting the fee-award of $1,000,000.00 fixed by the Commission, are now estopped to appeal in an effort to increase the award.

It is the general rule that a party cannot accept the benefits of a judgment, order or decree and afterwards prosecute an appeal or writ of error to review. (See 4 C.J.S. Appeal and Error § 215a). This general rule applies only where a substantial benefit has been accepted and where the acceptance has been voluntary, and intentional. (See 4 C.J.S. Appeal and Error § 215b). There is substantial evidence to lead us to conclude that the attorneys accepted the fee-award by the Commission under circumstances of strong compulsion and financial duress.

Appellants allege without dispute that during this long period of 16 years of litigation:

Two of the original attorneys had died, and the heirs of one of them were pressing the attorneys for payment of the amount due

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