[00:00:00] Speaker 04:
Mr. Herman.

[00:00:04] Speaker 04:
Good morning.

[00:00:24] Speaker 01:
May it please the Court, Jeff Herman on behalf of Appellant Herman Law, formerly known as Herman Murmelski.

[00:00:32] Speaker 01:
Your Honor, the District Court's order would expand tribal sovereign immunity in an unprecedented way.

[00:00:40] Speaker 01:
The principles of sovereign immunity are well known and undisputed.

[00:00:43] Speaker 01:
It's to protect the sovereign's treasury,

[00:00:46] Speaker 01:
to protect the fiscal integrity of the sovereign, and it's to protect the independence of the sovereign to govern its day-to-day operations without interference by a third party coming into courts and demanding that the sovereign appear.

[00:01:00] Speaker 01:
None of these concerns are implicated here.

[00:01:04] Speaker 01:
We are seeking an equitable interference by the court to protect our attorney's fees.

[00:01:10] Speaker 01:
we claim an interest in the money to be paid pursuant to a disbursement that the judge will, or the judge will ultimately issue.

[00:01:20] Speaker 03:
And where would the money go if you don't get any of it?

[00:01:27] Speaker 03:
It would go to the sovereign.

[00:01:30] Speaker 03:
And that's different from invading the sovereign's treasury?

[00:01:36] Speaker 03:
In what way?

[00:01:37] Speaker 01:
Yes, well, it's very different because the money's not in the sovereign's treasury yet.

[00:01:41] Speaker 01:
It's just in the pipeline.

[00:01:43] Speaker 01:
And that's an important distinction.

[00:01:45] Speaker 01:
What says that's important?

[00:01:47] Speaker 01:
Well, the long-held principles and judgments and opinions on what sovereign immunity is.

[00:01:54] Speaker 01:
If this was a breach of contract case that we were trying to final against the sovereign and they had the money commingled in their treasury, then there would be a claim of sovereign immunity that could preclude us from seeking that.

[00:02:07] Speaker 01:
But this is money that was earmarked and equitable interest was given the moment this contract was entered into.

[00:02:13] Speaker 03:
Let's go back on that.

[00:02:15] Speaker 03:
Let's assume in your favor that D.C.

[00:02:18] Speaker 03:
law creates a lien in favor of the attorney for services under certain conditions.

[00:02:29] Speaker 03:
First step in enforcing that lien be resolving factual disputes relating to whether the conditions for creation of the lien have been satisfied?

[00:02:40] Speaker 01:
It would be the second step because it would be the second step.

[00:02:44] Speaker 01:
The first step is our motion to intervene to give the court jurisdiction to make that determination.

[00:02:50] Speaker 01:
Right now.

[00:02:51] Speaker 01:
Okay.

[00:02:51] Speaker 01:
All right.

[00:02:52] Speaker 03:
I understand that.

[00:02:54] Speaker 03:
But then once you get in, that's what would happen.

[00:02:58] Speaker 03:
Yes.

[00:02:58] Speaker 03:
Right.

[00:02:59] Speaker 03:
So it's not as if you're just

[00:03:03] Speaker 03:
it's conceded that a piece of property is yours and you're demanding that it be turned over to you, you're trying to establish that you have this property interest.

[00:03:17] Speaker 03:
And that involves exactly the sort of conflict that goes on in any lawsuit.

[00:03:23] Speaker 01:
in any lawsuit, but it doesn't implicate sovereign immunity.

[00:03:25] Speaker 01:
Sovereign immunity is a different animal.

[00:03:27] Speaker 01:
Sovereign immunity says you have a sovereign that has its treasury and they can't be sued outside of their domain, so to speak.

[00:03:39] Speaker 01:
in a way to get a judgment to attack and grab that money.

[00:03:43] Speaker 01:
It's like if you had the sovereign in this, it's an imaginary boundary in a circle.

[00:03:47] Speaker 01:
You have the treasury in this circle.

[00:03:49] Speaker 01:
We're outside that circle.

[00:03:51] Speaker 01:
We're seeking simply to enforce our right and interest in attorney's fees, which was granted to us pursuant to an agreement in 2003.

[00:03:58] Speaker 01:
If the money were already in the sovereign, then we would have

[00:04:05] Speaker 01:
a problem with sovereign immunity.

[00:04:07] Speaker 01:
We admit that.

[00:04:08] Speaker 01:
We would have to be seeking a file a separate claim.

[00:04:11] Speaker 01:
But the same principles that apply to recruitment and offset, and the reasons that those arguments don't implicate sovereign immunity applies here.

[00:04:20] Speaker 01:
Because in a recruitment case, there's litigation that's pending, and there's offsets, and there's claims that are made outside of this circle, so to speak.

[00:04:28] Speaker 02:
In our recruitment case, the sovereign has already gone to court.

[00:04:33] Speaker 02:
and impliedly waived its sovereign immunity by going to court against the person who wants recruitment.

[00:04:39] Speaker 02:
The sovereign hasn't gone into court against you.

[00:04:42] Speaker 02:
No, they've gone to court, though, but not against you.

[00:04:45] Speaker 02:
Correct.

[00:04:45] Speaker 02:
And you're going to court against them.

[00:04:48] Speaker 02:
That is, you say that there is a lien.

[00:04:53] Speaker 02:
They say there isn't.

[00:04:54] Speaker 02:
They say there's a problem with respect to tribal law as to authorization, and they didn't authorize it.

[00:05:01] Speaker 02:
So there has to be a trial of those facts, right?

[00:05:06] Speaker 02:
Yes, ultimately, yes.

[00:05:07] Speaker 02:
Well, that's the same as if they were a defendant in any other case.

[00:05:10] Speaker 02:
You want their money.

[00:05:11] Speaker 02:
You want money.

[00:05:13] Speaker 02:
And you have to sue them and get factual determination in your favor that they owe you money.

[00:05:20] Speaker 02:
We can't assume that they owe you money here.

[00:05:22] Speaker 01:
Well, I think that the court can assume that we have an equitable interest in that money, and ultimately the trial court judge.

[00:05:30] Speaker 03:
What's about money?

[00:05:31] Speaker 03:
I mean, there would have to be litigation to determine whether you had a lien for any amount of money, right?

[00:05:41] Speaker 01:
Yes.

[00:05:42] Speaker 01:
I mean, there's no question a lawsuit was filed.

[00:05:44] Speaker 01:
that went on for nine years and there's no question there was an agreement that was signed and there's an understanding that the firm would receive 25% of the settlement proceeds or judgment ultimately.

[00:05:57] Speaker 01:
There's no question about that and that's been litigated, had been litigated for over nine years.

[00:06:04] Speaker 01:
So we're not now coming, there's nothing wrong in preventing

[00:06:08] Speaker 01:
the firm, the law firm, from enforcing that agreement or from enforcing that equitable right before the court that's hearing the subject litigation.

[00:06:18] Speaker 01:
That's not what sovereign immunity protects.

[00:06:20] Speaker 01:
Sovereign immunity doesn't say a tribe would never, ever have to pay money that it's obligated to pay.

[00:06:26] Speaker 01:
It's not a blanket that says they could just enter in the courts, hire lawyers on contingency fees, and then the night before the settlement, which is what happened here,

[00:06:35] Speaker 01:
say, well, why don't we just fire you and hire a lawyer, an Indian lawyer, and pay them hourly so we don't have to pay you.

[00:06:41] Speaker 01:
That would violate the equitable principles.

[00:06:45] Speaker 01:
And it doesn't violate that this court's interference does not implicate sovereign immunity.

[00:06:50] Speaker 01:
I mean, I think the Waters case is a good example of when sovereign immunity is implicated.

[00:06:57] Speaker 01:
In the Waters case, you have similar facts where the lawyers were discharged and then

[00:07:03] Speaker 01:
Lawyers did not seek to intervene.

[00:07:04] Speaker 01:
They waited until the money was paid to their former client, and then they sued the government.

[00:07:10] Speaker 01:
That's an independent claim they brought against the government.

[00:07:13] Speaker 01:
And the concerns about going into the government's treasury and going after funds that could have been earmarked for other things was at issue.

[00:07:25] Speaker 01:
If we waited here for the money to be paid to the tribe, and then we sued the government, we'd have the water situation, and we would lose that, clearly.

[00:07:34] Speaker 01:
It's not what we're doing.

[00:07:35] Speaker 01:
What we're saying, this money is not earmarked for other things.

[00:07:38] Speaker 01:
This money is earmarked for a settlement.

[00:07:42] Speaker 01:
The government's going to pay that either way.

[00:07:44] Speaker 01:
All we're seeking is judicial interference.

[00:07:47] Speaker 01:
by the court to allocate what we believe is an interest that has existed since the day the contract was executed.

[00:07:56] Speaker 02:
And their view is the contract was illegal and invalid, right?

[00:07:59] Speaker 01:
Yes, but for purposes of today, I think the court takes what we're saying to be true.

[00:08:05] Speaker 01:
That's for another day.

[00:08:06] Speaker 01:
That's not an issue for this court.

[00:08:07] Speaker 02:
No, but it's not an issue as such.

[00:08:09] Speaker 02:
We don't decide whether it's true or false, but we have to decide whether the requirement that the tribe litigate that issue invades their sovereignty.

[00:08:17] Speaker 01:
Yes, and the argument here and the principle is that this is something that the courts have jurisdiction to resolve when there's a contingency fee agreement.

[00:08:28] Speaker 01:
The court that is hearing the subject lawsuit has the authority and jurisdiction to hear the dispute over the contingency fee

[00:08:37] Speaker 01:
agreement based on equitable principles.

[00:08:41] Speaker 01:
Sovereign immunity doesn't preclude that.

[00:08:42] Speaker 01:
And it doesn't preclude that because this money isn't in the treasury and we're not attacking their public fist for money that's earmarked for something else.

[00:08:53] Speaker 01:
The court has a jurisdiction under a motion to intervene, on a motion to intervene, for something exactly in this situation.

[00:09:01] Speaker 01:
If you think about

[00:09:03] Speaker 01:
The basis of sovereign immunity, it's to protect us from going for a separate lawsuit against the sovereign to enforce a contract.

[00:09:14] Speaker 01:
That's now what we're doing here.

[00:09:15] Speaker 01:
This is an equitable interference that I believe we have the right to do under law.

[00:09:23] Speaker 01:
The government makes an argument that somehow we would be violating the government sovereign immunity if the court issued an order and interfered with

[00:09:32] Speaker 01:
directing the government on how to pay this money.

[00:09:35] Speaker 01:
And I think that's a baseless argument.

[00:09:38] Speaker 01:
In every one of these cases where there's a settlement or there's a judgment, the court issues an order directing the government on how to pay that money.

[00:09:49] Speaker 01:
If the tribe was not trying to not pay their legal fees here, we would still get to a judgment, and the judgment would direct the government on how to pay that money.

[00:10:00] Speaker 01:
that the government's going to pay is not earmarked for something else.

[00:10:03] Speaker 01:
This is not an interference with the US government's day-to-day operations.

[00:10:08] Speaker 01:
That money's being paid either way.

[00:10:10] Speaker 01:
This is just another order that would direct the government on how to pay that.

[00:10:19] Speaker 02:
Can I ask you a question?

[00:10:20] Speaker 02:
I'm actually getting a little more confused about the nature of an attorney's lien.

[00:10:25] Speaker 02:
So in our opinion in Democratic,

[00:10:29] Speaker 02:
Central Committee versus Washington Metropolitan Area Transit Association, we say that under DC law, validity of an attorney's charging lien and proceeds obtained through judgment recovery where the client and the attorney understood that the attorney would be paid out of the case's proceeds requires an agreement.

[00:10:51] Speaker 02:
Do you agree with that?

[00:10:54] Speaker 01:
That we have to start with a contingency fee agreement?

[00:10:56] Speaker 01:
Yes.

[00:10:57] Speaker 02:
There has to be an agreement.

[00:10:58] Speaker 01:
Yes.

[00:10:58] Speaker 02:
So if there's no agreement, which is the tribe's position, then you don't have an equitable lien.

[00:11:10] Speaker 02:
You don't have a charging lien.

[00:11:12] Speaker 02:
Is that right?

[00:11:14] Speaker 01:
Well, I think you get into there's other ways that they approach attorney's fees, but there has to be an agreement, correct.

[00:11:20] Speaker 01:
There has to be some authorization, whether you think it's, they argue it's 25% or whatever they're going to say.

[00:11:26] Speaker 02:
But it's not just an equitable right.

[00:11:28] Speaker 02:
You did work with like some kind of quasi contract.

[00:11:31] Speaker 02:
You did work for them so they have a right, you have a right to obtain money.

[00:11:35] Speaker 02:
There has to be an agreement.

[00:11:37] Speaker 01:
I suppose in any context, a lawyer representing a client has an implied right or an agreement to represent them.

[00:11:44] Speaker 02:
There has to be an agreement.

[00:11:45] Speaker 02:
So imagine we go back to trial and the tribe establishes that people who made the agreement didn't have authority to do that and that you knew that, whatever it is.

[00:12:00] Speaker 02:
Then you don't get the lead, right?

[00:12:02] Speaker 01:
Your Honor, I can't imagine a situation where a law firm is representing a client for nine years, litigating a case, meeting with tribal chiefs, government meetings, and then to say that there was no understanding.

[00:12:17] Speaker 02:
Now you're getting ahead of the facts here.

[00:12:19] Speaker 02:
We're not supposed to be deciding that question.

[00:12:21] Speaker 02:
Since that question has to be litigated and the tribe is disputing that they had an agreement with you, that makes them the defendant in the dispute.

[00:12:30] Speaker 01:
Well, but it's a defendant in the sense that they're defending their position, or they're taking a position in the, and I seem to be trying, but I'll try to answer this question.

[00:12:42] Speaker 01:
It makes them a defendant in the sense that they're taking a legal position about the fee.

[00:12:47] Speaker 01:
But it doesn't, just because they're taking a legal position and are, as you say, a defendant, doesn't mean they have sovereign immunity.

[00:12:54] Speaker 01:
Sovereign immunity only applies

[00:12:56] Speaker 01:
where we're going in and there would be a claim against the public, against the treasury separate of the tribe, of the sovereign.

[00:13:03] Speaker 01:
We're not doing that.

[00:13:05] Speaker 01:
This money is part and parcel part of this lawsuit that's being litigated that's outside that circle.

[00:13:10] Speaker 01:
Sovereign, this would be an expansion of sovereign immunity to apply to any time there's issues resolving fees or monies that are outside of the tribe.

[00:13:21] Speaker 02:
Thank you.

[00:13:45] Speaker 00:
Good morning.

[00:13:45] Speaker 00:
May it please the court, Ben Fenner for Appellee Yankton Sioux Tribe.

[00:13:50] Speaker 00:
I'll be addressing the facts leading up to the reported agreement and the tribal sovereign immunity issues, and Ms.

[00:13:57] Speaker 00:
Yowell will be addressing the federal sovereign immunity issues.

[00:14:03] Speaker 00:
I'd like to address a couple points that my friend made, one that

[00:14:09] Speaker 00:
he seems to be making the distinction of where the money lies as to how this case is analyzed.

[00:14:17] Speaker 00:
And I think that neglects to recognize the nature of the funds at issue here, which are funds held in trust by the United States government for the tribe.

[00:14:30] Speaker 00:
These are not somehow outside of the tribe's purview.

[00:14:36] Speaker 00:
The fact that these are not earmarked, I think, is irrelevant to the sovereign immunity analysis, and I think assumes a lot that's not in the record.

[00:14:45] Speaker 00:
And I won't go into what the tribe intends to do with these funds in terms of supporting its governmental services.

[00:14:59] Speaker 00:
there's a policy argument that I hear to limit sovereign immunity in this case.

[00:15:05] Speaker 00:
And it's simply not, sovereign immunity is not, may not be

[00:15:13] Speaker 00:
withdrawn or diminished due to equitable considerations.

[00:15:17] Speaker 00:
It goes to the court's subject matter jurisdiction.

[00:15:20] Speaker 00:
We can talk about sovereign immunity and how it overlies this case.

[00:15:25] Speaker 00:
But at the end of the day, this goes to the court's authority to hear this case in the first instance, the jurisdictional nature of the power of the court to bring these parties before it and hear these issues.

[00:15:41] Speaker 00:
And as the court

[00:15:42] Speaker 00:
notes, it is the tribe's position that there is no money owed on this invalid contract.

[00:15:51] Speaker 00:
My friend came onto the Yankton Sioux tribal reservation and presented a contingency fee agreement, which was executed by the chairwoman of the Business and Claims Committee, the tribe's executive committee, after purporting to

[00:16:10] Speaker 00:
familiarity with tribal law, the tribal constitution.

[00:16:16] Speaker 00:
The purported contract was entered into in violation of that constitution, Article 5, sorry, the bylaws, Section 2, Section 5 requires approval by resolution of the general counsel, which did not occur here.

[00:16:32] Speaker 00:
Which resolution would authorize the executive to

[00:16:37] Speaker 00:
who was authorized to execute the agreement on behalf of the tribe.

[00:16:41] Speaker 00:
The agreement was for a damages claim against the United States, a damages claim that was subsequently dismissed.

[00:16:49] Speaker 00:
My client then terminated Mr. Herman's services based on the fact that the contract was invalid under tribal law and offered to negotiate a settlement as to appropriate compensation for my friend's services and fees.

[00:17:08] Speaker 00:
Mr. Herman refused and withheld my client's file demanding a waiver of sovereign immunity in order to return that file.

[00:17:22] Speaker 00:
My friend improperly refused to return my client's file and instead seeks to rewrite an invalid contract to extort a waiver of immunity.

[00:17:33] Speaker 00:
Failing to extort that waiver

[00:17:37] Speaker 00:
My friend makes two primary arguments that this is not a suit that implicates tribal sovereign immunity and that it is policy considerations direct that the implied waiver under the recoupment line of decisions should be extended here to attorney's liens.

[00:18:00] Speaker 00:
It's a tribe's position that

[00:18:03] Speaker 00:
that the first argument, that that argument was waived as it wasn't argued below.

[00:18:08] Speaker 00:
Regardless, it carries forward this, as the L.M.

[00:18:14] Speaker 00:
Court v. Monarch Insurance decision found, it carries forward this strained distinction between a cause of action under a fee agreement and a lien.

[00:18:26] Speaker 00:
a person in this case, Mr. Herman, comes in under Rule 24 or Rule 3.

[00:18:36] Speaker 00:
The analysis under Rule 82 doesn't change.

[00:18:39] Speaker 00:
The court needs to establish its jurisdiction either way.

[00:18:45] Speaker 00:
that sovereign immunity is not limited to a suit, even if the form in which the rule under which he was coming into court did make a difference here.

[00:19:00] Speaker 00:
The case law is clear that tribes are immune from judicial process.

[00:19:06] Speaker 00:
They're immune from in realm actions, state tax, and regulatory laws.

[00:19:15] Speaker 00:
Waters and the Waters case, this court held that sovereign immunity protects against the imposition and the enforcement of an attorney's lien.

[00:19:29] Speaker 00:
So the law is clear that the tribe's immunity, sovereign immunity, protects against the action sought here.

[00:19:39] Speaker 00:
It's being sought to be brought into court on Mr. Herman's action.

[00:19:46] Speaker 00:
And these policy arguments that I'm hearing are precluded.

[00:19:53] Speaker 00:
The Supreme Court has said time and again that it's not for the court to determine the limits of sovereign immunity.

[00:20:01] Speaker 00:
Congress has plenary authority over tribes and tribal immunity.

[00:20:08] Speaker 00:
So the policy arguments to extend implied waiver to attorneys' liens

[00:20:14] Speaker 00:
It is not an Article 3 function.

[00:20:21] Speaker 00:
And I think it's clear from the record, as Judge Hogan found below, that this is not recruitment.

[00:20:28] Speaker 00:
There's nothing to recoup.

[00:20:33] Speaker 00:
My friend did not sue.

[00:20:35] Speaker 00:
It's not owing any damages.

[00:20:36] Speaker 00:
Neither is this the same

[00:20:37] Speaker 00:
transaction or occurrence, as the district court found.

[00:20:42] Speaker 00:
This is a violation of the duty of trust owed by the United States to the tribe, bringing injunctive and declaratory relief.

[00:20:51] Speaker 00:
And my friend's suit is a damages claim on contract.

[00:20:58] Speaker 00:
For this reason, the Yankton Sioux tribe respectfully requests that this court uphold the denial of Herman Law's motion to intervene.

[00:21:07] Speaker 00:
Thank you.

[00:21:11] Speaker 02:
We'll hear from the United States.

[00:21:30] Speaker 05:
Good morning and may it please the court.

[00:21:32] Speaker 05:
Amelia Yowell on behalf of Federal Appellees.

[00:21:35] Speaker 05:
There are two main problems with Herman Law's asserted lien.

[00:21:39] Speaker 05:
First, tribal sovereign immunity bars the lien because Herman Law failed to obtain a waiver in his contingency fee agreement.

[00:21:47] Speaker 05:
Second, the lien is barred by the United States' own sovereign immunity because the lien seeks to attach to funds in the US Treasury.

[00:21:55] Speaker 05:
This morning I'd like to focus primarily on federal sovereign immunity, although I'm happy to entertain any questions from the court.

[00:22:02] Speaker 05:
regarding the government's position on tribal sovereign immunity.

[00:22:08] Speaker 02:
Does Court... Do you agree with the description of tribal sovereign immunity presented by the tribe?

[00:22:15] Speaker 05:
Yes, Your Honor.

[00:22:17] Speaker 05:
Tribes possess the same common law immunity from suit traditionally enjoined by the sovereign.

[00:22:23] Speaker 05:
This includes protection from state law contract claims.

[00:22:30] Speaker 02:
What about their argument that the money

[00:22:32] Speaker 02:
isn't being taken from the treasury of the tribe.

[00:22:34] Speaker 02:
It's being taken from what would be a fund transmitted to the court.

[00:22:40] Speaker 05:
Practically, Your Honor, the money is taken from the tribe's treasury because without Herman Law's lien, the tribe would receive 100% of the settlement proceeds.

[00:22:52] Speaker 05:
So regardless of the fact that it'd be taken before it's transferred into the tribe's account, the practical matter is the same.

[00:23:01] Speaker 03:
If it's being taken from the tribes treasury as a practical matter, can it also be taken from the United States treasury?

[00:23:11] Speaker 05:
Yes, Your Honor.

[00:23:12] Speaker 05:
This court recognized in Cullodner that the essence of federal sovereign immunity is who has possession of the funds.

[00:23:21] Speaker 05:
And in this case, it's undisputed that the funds right now are still in the US treasury.

[00:23:26] Speaker 02:
What happens after the judgment is paid to the

[00:23:29] Speaker 02:
paid in, what if the judge was paid into the court's registry?

[00:23:33] Speaker 05:
Once the money leaves the federal government's hands, federal sovereign immunity no longer applies.

[00:23:39] Speaker 05:
But I think it's important to note that at record number 54, this is Herman Law's complaint and intervention, he's seeking an order from the court directing the government, directing the United States to pay him directly from the US Treasury.

[00:23:55] Speaker 05:
And that type of order is exactly what federal sovereign immunity protects against.

[00:24:01] Speaker 05:
There's a long line of Supreme Court and Court of Appeals precedent recognizing that federal and public funds are immune from equitable liens and other related devices like garnishment.

[00:24:14] Speaker 05:
This well established principle.

[00:24:15] Speaker 03:
So if he reframed his request,

[00:24:20] Speaker 03:
simply to have his suit, his claim, heard when asked if money was paid into the court registry, the government would not be here.

[00:24:31] Speaker 03:
Is that right?

[00:24:33] Speaker 05:
At that point, the government would not be making a federal sovereign immunity argument.

[00:24:38] Speaker 05:
But the government would be making a tribal sovereign immunity argument.

[00:24:42] Speaker 05:
Because there's two reasons why tribal sovereign immunity would apply.

[00:24:45] Speaker 03:
Because you're holding it in trust for the tribe.

[00:24:49] Speaker 05:
Exactly, Your Honor.

[00:24:50] Speaker 05:
And not only that, not only are you diminishing the tribe's treasury practically, but you're also subjecting the tribe to litigation on numerous disputed contract issues.

[00:25:02] Speaker 05:
And the Supreme Court recognized in Kiowa that the Tribal Sovereignty protects against litigation on those issues.

[00:25:10] Speaker 05:
It's not just a protection against liability, it's also protection against litigation.

[00:25:17] Speaker 05:
And so in your honor's hypothetical, if the money was paid directly to the court, the tribal sovereign immunity would apply in that case.

[00:25:27] Speaker 05:
But again, Herman Law's complaint and intervention is requesting that the United States pay Herman Law directly for his fees.

[00:25:38] Speaker 05:
And this court has recognized that you can't impose a lien on equitable, or you can't impose an equitable lien on funds

[00:25:47] Speaker 05:
in the public treasury, that's Waters versus WMATA.

[00:25:51] Speaker 05:
The Ninth Circuit and the Federal Circuit has also recognized that you can't assert an attorney's fee lien on funds in the US Treasury, and that's exactly what we have here.

[00:26:01] Speaker 05:
It makes no difference that Herman Law is trying to assert his lien in a pending action instead of bringing a separate standalone action.

[00:26:09] Speaker 05:
No matter when and how they are asserted, liens are attempting to encumber funds in the US Treasury.

[00:26:17] Speaker 05:
Herman Law's lien is no different.

[00:26:19] Speaker 05:
The entire point is to attach the money in the Treasury.

[00:26:22] Speaker 05:
The only way that Herman Law would be able to obtain a judgment directing the United States to pay him directly for his fees is if Congress has unequivocally consented and waived sovereign immunity.

[00:26:37] Speaker 05:
Herman Law points to no such waiver.

[00:26:41] Speaker 05:
In Herman Law's reply brief, he suggests that 26 U.S.C.

[00:26:43] Speaker 05:
Section 6323

[00:26:46] Speaker 05:
is such a waiver.

[00:26:49] Speaker 05:
But that provision is an IRS provision that addresses the validity of US tax liens and compares their order of priority as opposed to other validly asserted liens.

[00:27:01] Speaker 05:
It says nothing about whether a law firm like Herman Law can assert and attach a lien to funds in the US Treasury.

[00:27:08] Speaker 05:
Herman Law points to nothing in the text or history of that provision.

[00:27:12] Speaker 05:
That would suggest that Congress unequivocally intended

[00:27:17] Speaker 05:
to overrule the Supreme Court's longstanding precedent that liens cannot attach to public funds.

[00:27:26] Speaker 05:
Finally, Herman Law also suggests that the government forfeited this argument by not adequately raising it below.

[00:27:33] Speaker 05:
Even if the court were to conclude that was the case, this court's decisions and settles established that sovereign immunity is a jurisdictional issue and may be raised at any point in the litigation.

[00:27:47] Speaker 05:
And on the basis of Herman Law's complaint and intervention, which is the only thing that is before this court, federal sovereign immunity would attach to Herman Law's request.

[00:27:59] Speaker 05:
And unless the court has any other questions on federal or tribal sovereign immunity, we ask the court to affirm.

[00:28:06] Speaker 05:
Thank you.

[00:28:07] Speaker 02:
Thank you.

[00:28:11] Speaker 02:
Does Mr. Herman have time?

[00:28:14] Speaker 01:
I have no time remaining.

[00:28:17] Speaker 02:
Give you another two minutes, don't worry.

[00:28:19] Speaker 02:
Thank you, Your Honor.

[00:28:21] Speaker 01:
First I want to clarify, I'm assuming that Council for Yankton did not intentionally... Excuse me, you have to address the court.

[00:28:27] Speaker 01:
Misrepresent facts to this court.

[00:28:30] Speaker 01:
Accusing me of extortion and falsely representing facts about what happened in this case is totally inappropriate.

[00:28:37] Speaker 01:
The facts of this case, and I have the resolutions to read, were that after the settlement was approved,

[00:28:44] Speaker 01:
is that I was called into a meeting, and the tribe said, why don't we just fire you instead of paying you the million and a half dollars and hire an Indian lawyer on an hourly basis?

[00:28:55] Speaker 01:
And I said, we have an agreement, and that would be not fair.

[00:28:58] Speaker 01:
And they said, well, we have sovereign immunity.

[00:29:00] Speaker 01:
Had nothing to do with saying this agreement was not valid.

[00:29:04] Speaker 01:
And in fact, the resolution of the Yankton Sioux tribe issued on February 22, 2012

[00:29:13] Speaker 01:
Resolution number 212-019, I'm sorry, this is the 27th day of February, says that whereas the Yankton Sioux tribe approved the law from Herman and Murmelstein and Horowitz, et cetera, to pursue land litigation against the United States, and the firm pursued these claims on behalf of the tribe since July 2003, this was signed by the Business and Claims Committee Chairman,

[00:29:39] Speaker 01:
Thurman Cournoyer and by Glenn Sully, the Business and Claims Committee.

[00:29:44] Speaker 02:
Can I ask you a question, because you're running out of time?

[00:29:47] Speaker 02:
Why didn't you ask for a waiver of sovereign immunity in the original agreement?

[00:29:51] Speaker 01:
Well, because we were never planning on anything.

[00:29:54] Speaker 01:
We would never bring a claim to sue the tribe.

[00:29:57] Speaker 01:
Under our understanding with the tribe, the money would be paid

[00:30:01] Speaker 01:
from the proceeds.

[00:30:02] Speaker 01:
If there were no proceeds, there would be no attorney's fees.

[00:30:05] Speaker 01:
That's a pure contingency fee agreement.

[00:30:07] Speaker 01:
And so it was expected that the money would be paid, as it always is, from the contingency fee.

[00:30:14] Speaker 01:
I want to add one last thing, Your Honor, to the government's point is that somehow directing the government to pay our fee directly would violate sovereign immunity.

[00:30:23] Speaker 01:
In the resolution of 2012, the tribe authorized Herman Murmelsdiener Horowitz to direct the United States to pay the settlement amount to Herman Murmelsdiener Horowitz's trust account

[00:30:35] Speaker 01:
and to disperse pursuant to the settlement agreement.

[00:30:38] Speaker 01:
That was the original understanding.

[00:30:40] Speaker 01:
And I want to also point out that after the settlement was agreed and approved by the Business and Claims Committee, there was a tribal wide council vote of the entire tribe

[00:30:49] Speaker 01:
and it was approved, leading to the resolution by the tribe that we were authorized to enter the agreement and to litigate and that we are entitled to our fees and the government was directed, I'm sorry, the government, and the government was directed to pay the fees to Herman Law, now known as Herman Law.

[00:31:10] Speaker 01:
The council for the tribe suggests that somehow Waters is the same as this case and it's clearly not because in Waters,

[00:31:19] Speaker 01:
there was a separate claim against the government.

[00:31:21] Speaker 01:
It's not what we're seeking here.

[00:31:24] Speaker 01:
What the government wants to hold true is that any time, yeah, money is fungible.

[00:31:29] Speaker 01:
So any money that doesn't go to the tribe theoretically would go into the treasury.

[00:31:33] Speaker 01:
But that doesn't make every single claim for money involving a tribe void because of sovereign immunity.

[00:31:41] Speaker 02:
OK.

[00:31:41] Speaker 02:
Other questions from the court?

[00:31:43] Speaker 01:
Thank you.

[00:31:43] Speaker 01:
We'll take a matter under submission.