Indian Law Program Expands in 2010

Seattle University School of Law has significantly expanded its curriculum and programming in Indian law with the establishment of the Center for Indian Law and Policy. Douglas Nash is the Director of the Center and is joined by Eric Eberhard as a Distinguished Indian Law Practitioner in Residence. Nash, a member of the Nez Perce Tribe, served as director of the Institute for Indian Estate Planning and Probate since 2005. The work of the Institute will continue under the Center. Nash and Eberhard are joined by Stephanie Nichols, the Attorney for Native American Projects.

Nash is a nationally recognized expert in Indian law and estate planning. He has practiced Indian law for more than 38 years in numerous capacities, including 14 years in private practice in a solo practice and as head of the Indian Law Practice Group with the Holland & Hart law firm. He was Chief Counsel for the Nez Perce Tribe for 10 years and was a professor of law at the University of Idaho College of Law. The School of Law is committed to educating and training both Native and non-Native students, attorneys and community leaders in areas of federal Indian law and other legal, cultural and policy issues that impact tribes and Native people. The law school has faculty focused on Native American issues across its curriculum.

“We draw on all of the law school’s strengths to build an even stronger program, which will benefit our students, tribes and the community,” Interim Dean Annette Clark said. “We are proud of the work we have done and look forward to an even broader approach to this important and meaningful area of law.”

The Institute for Indian Estate Planning and Probate develops projects to provide estate planning services to tribal members at no cost, provides training on the American Indian Probate Reform Act, consults with tribes regarding tribal probate code development and serves as a clearing house for information.

The Institute has held five national symposia. Through its projects, the Institute has provided community education to more than 14,000 Indian land owners, served more than 3,300 clients, executed approximately 1,400 wills and 1,100 other estate planning documents and successfully reduced fractionation of trust land interests in approximately 87 percent of the estate plans.

While continuing that work, the Institute has grown to provide services to the Muckleshoot, Coeur d’Alene and Nez Perce tribes under contract.

One unique component of the Center will be a dispute resolution project designed to address the often intractable conflicts that arise in Indian law between Indian tribes and people and non-Indian people, governments and entities, led by Nash and Michael Mirande, who has worked on Indian law issues for private and public non-Tribal entities for over 23 years and teaches Indian Law at Seattle University School of Law as an adjunct faculty member. Nash and Mirande have substantial experience in resolving Indian law issues outside of traditional litigation and mediation, including as opposing counsel in several complex cases in which they were successful in bringing parties on opposite sides together in sustainable, long-term, settlement agreements that provide benefits to both parties far beyond what might be realized through litigation.

Attorneys within the Institute will be available to work with tribes on traditional areas of Indian law such as treaty rights, water rights, sovereignty and jurisdictional issues and will also expand into newer areas of tribal interest such as gaming and business.

“We will focus on the role tribes play when acting as entrepreneurs, as tribes are diversifying,” Eberhard said.

Tribes are increasingly creating business opportunities, including but not limited to gaming, hotels, spas, shopping, tourism and other businesses that are serving both tribes and non-Indian communities, but some deals fall through because there is not enough legal or business knowledge on both sides to make them happen, Eberhard said.

“Even in the midst of this severe recession, Tribes are considering development opportunities that were unheard of 10 years ago,” Eberhard said.

Curriculum changes will mirror these themes. When Tribes act in their capacity as the owners of natural resources and businesses, they encounter areas of the law that are not necessarily implicated when they act in their capacity as governments. Eberhard said that he is very pleased that the School of Law has recognized the need for greater focus on this area of the law and has made a real commitment to addressing it.

The School of Law faculty includes Professor Gregory Silverman, a member of the Mohegan Tribe of Indians of Connecticut. Across all legal disciplines the faculty integrates Indian law cases and issues impacting tribes and tribal communities into its curriculum and scholarship. The School of Law offers several courses in addition to the basic course federal Indian Law including Indian Law and Natural Resources, an Indian Trusts and Estates Clinic, Tribal Governmental Gaming and Contemporary Issues in Indian Law, which examines the impact of recent judicial opinions and legislative actions on the fundamental principles of Indian law. The Center for Indian Law and Policy is hard at work developing continuing legal education programs and additional courses that will better prepare practitioners and students to handle the unique legal issues that arise when tribes act as entrepreneurs.

Professor Catherine O’Neill focuses her scholarship issues of justice in environmental law and policy. In particular, her work considers the effects of contamination and depletion of fish and other resources relied upon by tribes and their members, communities of color and low-income communities. She has worked with various tribes on issues of contaminated fish and waters and has served as a pro bono consultant to the attorneys for the National Congress of American Indians and other tribes in litigation challenging mercury regulations.

In addition, Silverman, Nash and Professor Lisa Brodoff regularly serve as Tribal Court Judges and Judicial Advisors. Nash serves as a judge for the Tulalip Tribal Court of Appeals, and he is also a Judicial Advisor to the Warm Springs Tribal Court of Appeals in Oregon.

Experiential learning is also a focus of the law school. Stephanie Nichols, the attorney for Native American Projects, oversees projects in which law students work under the direction of attorneys to provide will drafting and other estate planning services for tribal communities. A graduate of the law school who completed a summer internship in the Institute’s Indian Estate Planning Project, she also runs the law school’s Study Law in Alaska Program and teaches an Alaska Native Law class for that program. Before assuming her position at the law school, she worked with several tribes and clerked for the Northwest Intertribal Court System.

Eberhard brings considerable experience to the law school. He has been engaged in the practice of Indian law since 1973, including employment in legal services on the Navajo, Hopi and White Mountain Apache reservations; as Deputy Attorney General of the Navajo Nation and Executive Director of the Navajo Nation Washington Office, Staff Director and General Counsel to the Senate Committee on Indian Affairs and Legislative Counsel to Senator McCain. From 1995 to 2009 he was a partner in the Indian Law Practice Group in the Seattle office of Dorsey and Whitney LLP.

His practice has involved the representation of Indian tribes, tribal organizations, and entities doing business with Indian tribes in federal, state and tribal judicial, legislative and administrative forums in regard to fee-to-trust transfers, water rights, leasing of natural resources, federal contracting, gaming, federal recognition, the formation of tribal corporations, environmental law, administrative law, jurisdiction, the development of tribal law, self-governance, cultural resource protection and the federal trust responsibility.

He is a member of the Board of Trustees of the Morris K. Udall Foundation. He serves as the Vice-Chairman of the Native American Concerns Subcommittee of the American Bar Association’s Committee on Individual Rights and Responsibilities and is a Fellow of the American Bar Foundation.

Eberhard also will help with recruiting Native American law students. He has close ties to many tribes and knows there are worthy students who can serve their tribes as attorneys. Native Americans have one of the smallest bars in the country. To further address this, the law school established a full-tuition scholarship for an enrolled tribal member.

Stacy DeMass, a member of the Upper Skagit Indian Tribe, is the first recipient. DeMass is grateful for the scholarship and looks forward to being involved in projects of the law school’s Center for Indian Law and Policy.

“There is a real need for tribal attorneys,” said DeMass, who worked for the Tulalip Child Support Program for a year before law school. “There are a lot of opportunities to learn and practice the law. I want to give back something to my community.”

The current first year class at the Law School includes six members of federally recognized tribes and efforts are underway to continue to attract tribal members to the Law School.