Native American Law

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Overview

Doing business in "Indian country," whether on Indian Reservations, on tribal and individual allotted trust lands, or near such lands, presents unique issues and challenges. Those challenges arise from the important role that federal Indian and public land laws and tribal laws play in structuring and permitting development activities in those locales.  Structuring transactions, negotiating effectively and crafting agreements that maximize predictability and enforceability can be elusive in Indian lands transactions. Effectively doing business in Indian Country requires consideration of the scope and extent of state, federal, and tribal jurisdiction to tax, regulate or resolve disputes, addressing unique challenges for drafting agreements to maximize enforceability in light of the federal Indian law doctrines of tribal sovereign immunity and exhaustion of tribal remedies, and managing specific permitting and environmental compliance requirements. 

Even operations outside Indian Reservations or not on Indian lands may require consideration of the interests and concerns of Indian tribes and other Native American groups.  Most Native American groups occupied or used lands outside present day Reservation boundaries.  An array of federal statutes, including the National Environmental Policy Act, the National Historic Preservation Act, and the Native American Graves Protection and Repatriation Act, requires consultation with Indian tribes when pursuing project development on federal public lands.

Finally, despite best intentions, business and other circumstances can give rise to disputes between tribal or other Native American interests and private landowners, project developers and other non-Indian interests.  These disputes often present unique challenges in dispute resolution.   

Practice Overview

Modrall Sperling's Native American law practice is national in scope.  The firm has represented clients in matters involving more than 40 tribes in over 20 states.  Modrall Sperling is one of a very few firms nationally which focuses its Native American law practice primarily on the representation of developers, financial sector participants, utilities, and other businesses and others doing business with tribes or tribal entities, engaged in dispute resolution, or addressing policy issues in Indian country.  Modrall Sperling's Indian Law Practice Group is a unique set of professionals with expertise and experience in the wide range of disciplines critical to successful economic development in Indian country.  While our knowledge of core Indian law principles and recent developments is at the highest level, our team includes practitioners who bring specialized expertise applying those principles in finance, land and resource acquisition, employment law, environmental and cultural resource permitting and management, and related fields—in Indian country.  In Indian country, every aspect of the law applicable to a project, agreement, or dispute may be different from what applies off-Reservation.  Successful development or dispute resolution requires a counsel team with knowledge and experience cutting across the subject matter pertinent to the client.

Modrall Sperling's Indian Law professionals have extensive experience representing clients in transactions, permitting, and litigation in "Indian country" throughout the United States. We have represented businesses, including tribally owned entities, in complex development and financing transactions, such as energy and natural resource development, and concerning taxation, leasing or contracting, and environmental management and permitting. We have handled complex litigation concerning tribal contracts, leases, permits, and regulation and understand the pitfalls that may thwart conventional approaches to litigation in Indian country.  We also have represented non-tribal governments in issues concerning state and tribal taxation and regulation. 

Modrall Sperling's Indian Lands and Public Lands lawyers help steer clients through the complexities that may otherwise delay or derail projects.  Our Indian law practice encompasses:

  • Business contract negotiation and dispute resolution
  • Business planning and finance
  • Business leasing, contracting, and facility siting
  • Acquiring rights-of-way and access
  • Analysis of Indian country jurisdictional issues
  • Indian sovereign immunity issues
  • Dual taxation issues involving states and tribes or pueblos
    Environmental planning and compliance, including air quality, solid and hazardous waste management
  • Management of natural resource development operations, including permitting and reclamation issues
  • Mineral Royalty compliance
  • Water rights
  • Employment law and tribal employment rights ordinances
  • National Environmental Policy Act issues
  • Cultural resource management compliance
  • Representation in tribal courts, including Navajo Nation courts

Participation in Indian Law Organizations

Our lawyers participate actively in state and national Indian law organizations, speak and write frequently on Indian law subjects, and have taught classes at the University of New Mexico School of law on related subjects.

Our Indian law lawyers have been involved at all levels of the federal and state courts (including the United States Supreme Court) and also represent businesses in tribal courts. In addition to Modrall Sperling's pro hac vice representation in various tribal courts, Brian Nichols is a licensed member of the Navajo Nation Bar Association.

Native American/Federal Indian Law Lawyers

Lynn Slade and Walter Stern, both nationally recognized for their experience and expertise in this area, lead the practice group. Recently, Lynn led our team representing a utility scale solar energy developer on lease acquisition for Native American lands in Nevada, California, Colorado, and New Mexico. Also recently, Walter has been in the lead on cultural resources management and tribal consultation advice concerning natural resource development projects in Nevada and New Mexico.

Other lawyers/professionals practicing in this area include:

Attorneys

Experience

Creative Problem-Solving

While the details of every issue differs, particularly in Indian country, and past success is not an indication of future success, some examples of creative problem-solving by our Indian law attorneys include:  

  • Portland General Electric's (PGE) license to operate a hydroelectric plant straddling the boundary of the Warm Springs Reservation in Oregon was slated to expire in several years when it approached Modrall Sperling for assistance. The Confederated Tribes of the Warm Springs Reservation challenged re-issuance of the license to PGE and urged the Federal Energy Regulatory Commission to issue the license to the Tribes. On PGE's behalf, Modrall Sperling was able to address federal Indian law and trust responsibility issues with federal agencies and the Tribes, and then assisted PGE to negotiate and document a ground-breaking cooperative agreement with the Tribes for future joint operation of the facility.

  • Astaris, LLC was faced with an upcoming reduction in force at its phosphorous manufacturing plant on the Fort Hall Reservation in Idaho, and needed to deal with a tribal employment rights ordinance (TERO) that required a preference for "local Indians" and a collective bargaining agreement that required a seniority preference.  Modrall Sperling attorneys helped Astaris partner with the Union to bring a lawsuit in federal district court raising whether the TERO applied in light of the National Labor Relations Act.  The presence of all stakeholders in the federal forum provided impetus for a global settlement that kept the plant operating.

  • Sandia Peak Tram Company, a special use permit holder on national forest lands, sought the counsel of Modrall Sperling for its defense of Indian land claim litigation brought in federal court by the Pueblo of Sandia.  The Pueblo claimed that approximately 10,000 acres of National Forest lands in the Sandia Mountains adjacent to Albuquerque should have been included in its land grant.  After suit was filed, the firm represented the Tram in alternative dispute resolution proceedings that resulted in an amicable Indian land claim settlement requiring ratifying federal legislation. Representation included participation in a lengthy mediation process, lobbying, and testimony before Senate Committees on Indian Affairs and on Energy and Natural Resources.  The result of this effort was enactment of the federal T'uf Shur Bien Preservation Trust Act legislation in 2003.    

Our Involvement in Definitive Federal Indian law Disputes

Modrall Sperling has also been involved in some of the key federal Indian law disputes defining the extent of tribal, state, and federal jurisdiction on Indian lands. The firm's Indian law lawyers have recently been involved in the following cases:

  • Representing El Paso Natural Gas Company, Modrall Sperling attorneys participated in the briefing that led to the Supreme Court's ruling that federal courts, rather than tribal courts, should initially decide which court has jurisdiction over claims arising from nuclear incidents. See, El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999).

  • Representing the Burlington Northern Santa Fe Corporation as tribal court counsel on appeal in Red Wolf and as amicus curiae in Strate , and the Association of American Railroads in Atkinson Trading and Plains Commerce Bank, Modrall Sperling attorneys were instrumental in decisions defining tribal jurisdiction over non-members. See, Burlington Northern Santa Fe Corp. v. Red Wolf, 196 F.3d 1059 (9th Cir. 2000); Strate v. A-1 Contractors, Inc., 520 U.S. 438 (1997), Atkinson Trading Co. Inc. v. Shirley, 520 U.S. 438 (1997); and Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008).

  • Serving as lead counsel for the Commissioners of the Oklahoma Tax Commission in defense the Osage Nation's claims seeking a declaration that all of Osage County, Oklahoma remains a reservation and an injunction prohibiting the Commission from collecting Oklahoma state income taxes upon the income of Osage Nation members who both earn income and reside anywhere within the County.  A declaration that Osage County remained a reservation would have had profound consequences for civil, criminal, and regulatory jurisdiction in Osage County. The federal district court entered judgment in favor of the Commissioners, ruling that federal statutes terminated the Reservation and that federal law does not preempt Oklahoma's taxation of the income in dispute.  The Tenth Circuit Court of Appeals affirmed unanimously.  On the Osage Nation's petition for certiorari, the United States Supreme Court has requested the United States Solicitor General's Office for its views of the petition.  See, Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010), pet. for certiorari filed, Oct. 22, 2010.

  • The firm defends Transwestern Pipeline Company and Enterprise Products Partners LP and Mid-America Pipeline Company, LLC, and served as lead counsel for a broader group of defendants, against claims of Navajo Nation tribal members who own allotments (akin to homesteads) in northwestern New Mexico seeking to cancel rights-of-way for pipelines and utility transmission lines that traverse the allotments.  The federal district court dismissed all of the plaintiffs claims, holding that the applicable statute of limitations had expired, and that the plaintiffs had not exhausted their administrative remedies,  The plaintiffs have attempted to file over 900 administrative appeals relating to that ruling. See, Begay v. Public Service Company of New Mexico et al., U.S. District Court Cause No. 09-cv-00137-MV-RLP (D.N.M.).

  • The firm served as special Indian law counsel to Blue Tee Corp. and Gold Fields Mining LLC in defense of claims under the federal Superfund law or CERCLA, together with common law natural resources damages, nuisance, and injunctive relief claims brought by the Quapaw Tribe against successors to mining companies that operated lead and zinc mines in the vicinity of the tribe's historic reservation.  See, Quapaw Tribe of Oklahoma v. Blue-Tee Co. et al., U.S. District Court Cause No. 03-CV-0846-CVE-PJC (N.D. Okla.).

  • QEP, a natural gas transporter and processor on tribal lands in Northeastern Utah, filed this action, seeking injunctive relief against tribal actions to limit its possession of tribally granted leases and rights-of-way and to enjoin a tribal court injunction that supported the tribal actions.  Modrall Sperling serves as Indian law counsel to QEP in the action.  The federal district court entered a preliminary injunction in QEP's favor.  The appeal of the preliminary injunction order remains pending.  See, QEP Field Services Company v. Ute Indian Tribe of the Uintah and Ouray Reservation, 2010 U.S. Dist. LEXIS 78844 (Aug. 4, 2010), on appeal, Tenth Circuit No. 2010-4143.

Transactions and Permitting Activities

  • Navajo Mine Operations and Permitting Matters: The firm represents BHP Navajo Coal Company (BNCC), which operates a coal mine on a mining lease of tribal trust lands on the Navajo Reservation, and seeks to expand and extend its operations.  Our representation has involved a wide range of permitting matters including NEPA and cultural resources compliance, Endangered Species Act compliance, Clean Water Act, Surface Mining Control and Reclamation Act, and other federal permitting, negotiation of agreements with Navajo Nation tribal members, and other matters.

  • Renewable Energy Development:  Modrall Sperling serves as Indian law counsel to K Road Solar Power, LLC, in its acquisition of leasehold rights for utility scale solar development in Nevada, California, and other states.  We helped develop documents that support a package of land, right-of-way, and related rights focused on minimizing approval delays and optimizing project competitiveness in the fast-paced renewable energy market.

  • Indian Lands Title Opinion Preparation:   Modrall Sperling is providing title opinion services in support of oil and gas company exploration and production efforts to develop resources of the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota.  This work involves examining title documents from the unique set of sources applicable to Indian country mineral ownership interests to support for oil and gas drilling or other associated activities.

  • Financial Services Representation:  Modrall Sperling's representation of financial sector companies in Indian country has included preparation of form agreements for investment advisors, fiduciaries, and insurers and advice concerning federally-guaranteed loans supporting Indian country development and pursuing collection of defaulted loans for Charles Schwab & Co. and Deutsche Bank NA.

  • Jicarilla Apache Nation and Navajo Nation Natural Gas Transportation Projects:   Modrall Sperling served as outside counsel to Enterprise Products Partners, LP in negotiations, drafting and approval of long term gas gathering system agreement for operations on the Jicarilla Apache Reservation and Navajo Nation lands in northwestern New Mexico.

Off-Reservation Tribal Consultation and Related Matters

  • Barrick Gold Corporation's Cortez Hills Mine and Horse Canyon/Cortez Unified Exploration Project:  We represent Barrick Cortez, Inc. in relation to present and proposed operations in and near the Crescent Valley, Nevada.  We are providing counsel regarding tribal consultation and cultural resources management compliance relating to mineral resources development and exploration projects, including consideration of National Historic Preservation Act, Native American Graves Protection and Repatriation Act, and related statutes, regulations and Executive Orders.

  • Mount Taylor Traditional Cultural Property Designation: Modrall Sperling represents a major resources development company and a group of mineral estate owners in a challenge to a highly controversial State of New Mexico designation of a 700,000-plus acre area encompassing Mount Taylor and surrounding environs—located northeast of Grants, New Mexico—as a Traditional Cultural Property ("TCP").  The designation impacts or has the potential to impact companies and individuals owning lands, interests in land or development rights inside and near the designated TCP area. The challenge asserts that the State violated applicable constitutional and statutory provisions, regulations and procedures in designating the TCP.

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