Indian Law Certificate Program: Building Business in Indian Country
July 08-10, 2015 | 13.75 CLE Credits
The five-session program will be spread over two and a half days from July 8 through July 10, 2014.
Building Business in Indian Country: governance of tribal business entities; alternative energy development; construction contracts; taxation and ethics will be the focus for the 2015 Summer Practice Academy's Indian Law Certificate Program. The five-session program will be spread over two and a half days from July 8 through July 10, 2015.
Session 1: Wednesday, July 8th, 9:00 a.m. - 12:00 p.m.
Organizational Options for Tribal Businesses and Their Consequences
Speaker: Kelly Croman Neelands - Tribal Attorney, Chehalis Tribe, WA
This session will take an in-depth look at the various options available to tribes for structuring their business entities. It will examine the practical and legal consequences associated with corporations formed under the Indian Reorganization Act and entities organized under tribal and state law, including corporations, partnerships, LLC's and joint ventures. The type of entity a tribe chooses can have significant impacts on tribal communities, tribal governments and the governance and operation of a business as well as imposing limitations on what the entity can and cannot do; its susceptibility to state and federal taxation; the application of the tribe's sovereign immunity; issues related to dispute resolution and the jurisdiction of federal, state and tribal courts over matters involving the business entity; and the entity's eligibility for federal and state procurement contracts.
Session 2: Wednesday, July 8th, 1:30 p.m. - 4:30 p.m.
Building in Indian Country: Understanding and Successfully Navigating Construction Contracts
Speaker: Steven Heeley - Akin, Gump, Strauss, Hauer & Feld - Washington, DC and Phoenix, AZ
This session will examine the issues that arise when a tribe or a tribal business entity negotiates and enters into contracts for the construction of facilities and infrastructure. It will examine best practices with regard to the use of AIA contract forms; the pros and cons of various types of construction contracts; dispute resolution alternatives; choice of law and choice of forum; liquidated damages; waivers of sovereign immunity; indemnification; the use of consultant agreements for construction related work; and terms that should be included in Requests for Proposals and Bids
Session 3: Thursday, July 9th, 9:00 a.m. - 12:00 p.m.
The Art of the Deal in Indian Country: Effective Negotiation Skills, Tactics and Strategies
Speakers: John Sledd and Ethel Branch - Kanji & Katzen LLP, Seattle, WA
Developing and maintaining effective skills in negotiation is more important than ever in the practice of Indian law as the volume and complexity of contracts, transactions, and compacts has increased and more disputes are settled by mutual agreement through negotiation during mediation, arbitration or litigation. This session is intended to assist practitioners at all levels of experience to improve the chances of achieving their client's goals through the use of proven negotiation skills, tactics and strategies in disputes between tribal business entities and private sector parties over various commercial or financial matters and disputes between tribal governments and other governments over matters involving natural resources, jurisdiction and regulation of the environment which directly affect tribal business entities.
Session 4: Thursday, July 9th, 1:30 p.m. - 4:30 p.m.
Land Acquisition for Gaming On and Off-Reservation
Speaker: Heather Sibbison - Dentons, Washington, DC
The Indian Gaming Regulatory Act (IGRA) generally limited gaming activities by tribes to lands that were within an Indian reservation and all lands held in trust by the United States or subject to a restriction by the United States against alienation and over which a tribe exercised governmental power on the date of enactment of IGRA, October 17, 1988.
The Act created exceptions that authorize the Secretary of the Interior to take land into trust for gaming after the date of enactment if it is within the reservation or if the lands were contiguous to the boundaries of the reservation on the date of the enactment of IGRA. In addition, the Secretary may take land into trust for gaming purposes if:
The Secretary determines that doing so would be in the best interest of the Tribe and would not be detrimental to the surrounding community, but only if the Governor of the state concurs in the Secretary's determination;
The lands are taken into trust as part of the settlement of a land claim; initial reservation of a tribe acknowledged by the Secretary under the federal acknowledgement process; or restoration of lands for an Indian tribe that is restored to federal recognition.
In 2009 the U.S. Supreme Court decided Carcieri v. Salazar, 555 U.S. 379 (2009) and concluded that the Secretary lacked authority to take any land into trust for tribes that were not recognized by the United States on the date of enactment of the Indian Reorganization Act in 1934. Three years later the Court decided Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) and concluded that the Quiet Title Act did not operate as a bar to a challenge under the Administrative Procedure Act, 5 U.S.C. § 702, to the Secretary's decision to take land into trust for a tribe for any purpose.
The Carcieri and Patchak decisions, along with the hostility of some states and some Indian tribes to efforts by tribes to have land taken into trust for gaming purposes has resulted in extensive litigation to delay or foreclose decisions by the Secretary to take land into trust under exceptions that IGRA authorized.
Session 5: Friday, July 10th, 9:00 a.m. - 12:00 p.m.
Powering Your Business: Developing, Constructing and Financing Alternative Energy Projects in Indian Country
Speaker: Douglas MacCourt - Ater Wynn, Portland, OR
According to the United States Department of the Interior, the United States government currently holds approximately 56 million acres of land in trust for tribes and individual Indians. Under the Alaska Native Claims Settlement Act (ANSCA), another 44 million acres have been set aside for Alaska Natives. The Bureau of Indian Affairs estimates that while Indian land comprises only five percent of the land area of the United States, it contains an estimated ten percent of all energy resources in the United States.
Renewable energy potential in Indian country is even more significant. The National Renewable Energy Laboratory (NREL) has estimated that there is the potential for about 535 billion kWh/year of wind energy alone available on Indian lands in the contiguous 48 states, which is equivalent to 14 percent of current U.S. total annual energy generation. NREL estimates that there is also 17,600 billion kWh/year of solar energy potential on Indian lands in the lower 48 states; this amount is equivalent to 4.5 times the total U.S. electric generation in 2004. In addition, Indian Country will continue to play a growing role in transmission infrastructure throughout the nation.
In addition to the significant tribal control of land and resources in the U.S. and the national focus on renewable energy, tribal interest in renewable energy projects will also likely be fueled by each tribe's long-term goals relating to sovereignty, sustainability, and financial security. In Indian country the past several decades have seen a renewed focus on tribal self-determination, with tribes asserting more control over their land, resources and self-governance. Renewable energy may support a wide range of tribal economic activities, from tourism and gaming to manufacturing and telecommunications. Many tribes have also begun to experiment with their unique legal status to accelerate their economic development efforts. Energy development is one way tribes are creating the infrastructure and capacity to achieve economic independence.
This session will focus on:
- a general overview of the renewable energy project development process;
- a discussion of how to structure a renewable energy project transaction to protect tribal interests, with an emphasis on joint project development efforts undertaken with non-tribal parties;
- a general overview of key energy development agreements, including power sale agreements, transmission and interconnection agreements, and land leases; and
- a discussion of ways tribes can finance renewable energy projects, the sources of funding or financing that may be available, the types of investors that may be available, and federal tax incentives for renewable energy projects.
Eric D. Eberhard
Co-Faculty Director, Center for Indian Law and Policy and Distinguished Indian Law Practitioner in Residence, Seattle University School of Law
Eric D. Eberhard is a Distinguished Indian Law Practitioner in Residence at the Law School at Seattle University. From 1995 to 2009 he was a partner in the Seattle office of Dorsey and Whitney LLP. He received his B.A. degree from Western Reserve University in 1967; a J.D. degree from the University of Cincinnati in 1970 and an LL.M. from George Washington University in 1972. He has been actively engaged in the practice of Indian Affairs law since 1973, including employment in legal services, private practice and as the Deputy Attorney General of the Navajo Nation and Executive Director of the Navajo Nation Washington Office. His practice has involved all aspects of the representation of Indian tribes, organizations, individuals and entities doing business with Indian tribes in federal, state and tribal judicial, legislative and administrative forums.
From 1989 to 1995 he served as the General Counsel and Staff Director on the Senate Committee on Indian Affairs for Senator John McCain of Arizona. In that capacity he had direct responsibility for legislation relating to the protection of the environment on Indian lands, Indian cultural resources protection, gaming, water rights, self-determination and self-governance, tribal courts and economic development.
In December, 2000, the U. S. Senate confirmed President Clinton's appointment of Mr. Eberhard to the Board of Trustees of the Morris K. Udall Foundation. President Bush nominated Mr. Eberhard for a second term on the Board in 2005 and he was confirmed by the Senate in 2007. From 2001 to 2011 he chaired the Board's Committee on the Native Nations Institute. In 2011, he was elected as Chairman of the Board of Trustees. He also serves as the Vice-Chairman of the Native American Concerns Committee of the American Bar Association's Committee on Individual Rights and Responsibilities and is a Life Fellow of the American Bar Foundation. Mr. Eberhand is an Associate Justice of the Court of Appeals of the Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians in Oregon.
He has been recognized by Best Lawyers in America and Chambers. At Dorsey & Whitney he was recognized as the Partner of the Year, the Diversity Partner of the Year and the Pro Bono Partner of the Year. He has been honored by the United South and Eastern Tribes, Navajo Nation and its courts, the National Indian Gaming Association, the National Association of Indian Legal Services Programs, the Intertribal Timber Council and the American Indian Religious Freedom Coalition for outstanding service and contributions. In 2013 Mr. Eberhard was presented with the Lifetime Achievement Award by the Northwest Indian Bar Association.
Kelly Croman, Tribal Attorney for the Chehalis Tribe, Oakville, Washington
Over the past 17 years Kelly Croman has worked in a variety of legal and economic development roles for three tribes in Washington State. Kelly's long and unique experience in Indian law has brought her into contact with many aspects of the issues which arise from the various options available to tribes when they choose a structure for a business entity and make her exceptionally well qualified to discuss the best options for tribes and their attorneys to consider.
Kelly currently serves as the Director of the Office of Tribal Attorney for the Confederated Tribes of the Chehalis Reservation, where she advises the Tribal government and its enterprises on a broad array of legal matters. The Tribe has developed a number of successful enterprises, including the Great Wolf Lodge, Lucky Eagle Casino, Eagles Landing Hotel, Eagle RV Park, End of the Trail convenience stores, Burger Claim restaurant, Confederated Construction Company (a certified 8(a) contractor), and billboard advertising.
Previously, Kelly served as CEO of Island Enterprises, Inc. (IEI), the economic development arm of the Squaxin Island Tribe. IEI's enterprises include Salish Seafoods, the Trading Post family of gas stations and convenience stores, Skookum Creek Tobacco Company, SI Distribution, Skookum Creek Distributing, and the Ta-Qwo-Ma Business Development Center. Prior to joining IEI, Kelly served as General Counsel to Marine View Ventures, Inc. (MVV), a tribally chartered corporation of the Puyallup Tribe of Indians. MVV's holdings include gas station/convenience stores, two marinas, and several hundred acres of commercial and industrial lands in and around the Port of Tacoma.
Prior to joining MVV in 2007, Kelly served as legal counsel for the Squaxin Island Tribe for nearly 10 years, where she focused on governmental affairs, economic development and tribal tax issues, and intertribal negotiations. Kelly led successful efforts to secure authorizing legislation for cigarette tax compacts and fuel tax compacts, the latter after a successful litigation effort, and negotiated the first compacts under each statute.
Kelly currently chairs the board of the National Intertribal Tax Alliance, and is a former chair of the Washington State Bar Association's Indian Law Section. She has B.A. and M.P.A. degrees from The Evergreen State College, and a J.D. from the University of Washington School of Law, where she graduated with honors
Steven J.W. Heeley, Advisor, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.
Steven Heeley serves as a consultant to Akin Gump. He advises Indian tribes on corporate, transactional and natural resources matters, as well as on tribal governance and jurisdictional issues. He has served as the deputy general counsel for the Gila River Indian Community for over 10 years. In addition, he serves as an adjunct law professor at Arizona State University, teaching seminars on economic development and applied business transactions in Indian Country. He also serves as a member of the University's Advisory Committee for the Indian Law Program.
During the 104th Congress, he served as staff director and chief counsel to the Senate Committee on Indian Affairs, which was chaired by Sen. John McCain, R-Ariz. Prior to assuming that role, Steve was counsel to the Subcommittee on Native American Affairs of the Committee on Natural Resources in the U.S. House of Representatives, which was established in 1993. Prior to the creation of this subcommittee, he served as the Deputy Counsel on Indian affairs to the Committee on Interior and Insular Affairs under Chairman George Miller. From 1989 to 1991, he was Deputy Minority Counsel to Sen. McCain on the Senate Select Committee on Indian Affairs and prior to that he was an attorney for the Gila River Indian Community.
During more than three decades of experience in Indian law, Steve has negotiated a lease agreement and the related documents necessary for the development of a 360,000 square foot retail development on tribal trust lands; tax-exempt financing pursuant to an award under the Tribal Economic Development Bond program to finance the construction of a three star hotel and related facilities on tribal trust lands; the development and construction of a three star casino and related facilities and the development and construction of a four star casino hotel on trust lands
Steve is a Potawatomi Indian and a citizen of the Walpole Island First Nation in Ontario, Canada.
John Sledd and Ethel Branch, Kanji & Katzen P.L.L.C., Seattle, Washington
John Sledd joined Kanji & Katzen as of-counsel in 2006 and became a member of the firm in 2012. His practice involves litigation in federal courts in the areas of treaty rights, allotted lands, land use and the environment. He is the coordinating counsel for all of the tribes involved in the U.S. v. Washington sub-proceeding challenging the use of culverts under state roadways and their adverse impacts on salmon habitat. Prior to joining Kanji & Katzen, he was the Director of Litigation, from 1986-1989, at DNA People's Legal Services, Inc.in Window Rock, Arizona where he served as General Counsel to the nation's largest Indian legal services program and supervisor of attorney staff in eight offices in three states. Before becoming Director of Litigation at DNA, John served as Deputy Director of Litigation, Managing Attorney, and Attorney, from 1982-1986. From 1989-1999 he served as the Tribal Attorney for the Suquamish Tribe, His practice emphasized litigation and negotiations over treaty rights, gaming, jurisdiction, and other matters. He obtained a $950,000 judgment for BIA denial of a tribal 638 contract proposal and represented the Tribe in a $24 million settlement over pollution caused by Seattle city sewers.
From 1999-2004, John was the Director of the Native American Project of Evergreen Legal Services in Seattle, Washington. As Director he supervised a statewide project that provided free civil legal services to low income Indian individuals. From 2004-2006, John was the Senior Attorney for the Native American Unit of the Northwest Justice Project in Seattle, Washington, a statewide project that provided free legal services to low income Indian individuals.
Ethel Branch joined Kanji & Katzen in 2012 as an Associate. She is a 2008 graduate of Harvard. Before joining the firm, Ethel was a Public Finance Associate with Orrick, Herrington & Sutcliffe, LLP, in Portland, Oregon. She worked on a number of tax-exempt financings for tribes, states, and local governments, including the first Tribal Economic Development Bond issue and the first large tribal general obligation bond issue governed by tribal law and enforceable in tribal courts. Ethel also previously served as an indigenous human rights attorney.
Ethel's work focuses on shielding tribal revenues from state and federal incursions and working to ensure robust protection of tribal natural resources in clean-up, restoration, and development projects. She is knowledgeable about statutes, regulations, and case law relating to IGRA, CERCLA, MTCA, and tribal treaty rights, and she is comfortable navigating complex accounting rules. She is Co-Chair of the Seattle Human Rights Commission and is a Grand Canyon Trust Board Member. Ethel is a citizen of the Navajo Nation
Heather Sibbison, Dentons, Washington, D.C.
Heather Sibbison serves as chair of the Dentons' Native American Law and Policy practice, which serves clients on matters related to American Indian, Alaska Native, and Native Hawaiian issues. Her practice is primarily focused on all matters related to Indian lands, including trust acquisitions, Indian lands opinions, Carcieri v. Salazar issues, land claim settlement issues, and related compliance with the Indian Gaming Regulatory Act (IGRA) and the Natural Environmental Policy Act (NEPA).
During the administration of President Clinton Heather served in the Office of the Secretary at the Department of the Interior (Special Assistant to the Secretary, Counselor to the Deputy Secretary, and Director of the Secretary's Office of Indian Water Rights), and also at the Department of Justice (Counsel to the Assistant Attorney General for Environment and Natural Resources, focus on work with the Indian Resources Section). During her federal service, her duties included management of issues related to fee-to-trust and Indian gaming, and she was lead federal negotiator in various settlement negotiations involving Indian land claims, Indian water rights and treaty fishing rights.
Heather's long experience with the Indian Reorganization Act, IGRA, NEPA, various land and water rights settlements, and the legal issues that have been spawned by the Supreme Court's decisions in Carcieri and Patchak, enable her to assist clients in developing and implementing workable fee-to-trust and reservation proclamation strategies for tribes needing additional land for gaming, non-gaming economic development, housing or any other use.
Her practice also encompasses extensive representation of tribes in the tribal-state compacting process, the development of inter-governmental services agreements and most matters for which federal administrative approval is required from either the Department of the Interior (Interior) or the National Indian Gaming Commission (NIGC). Heather also has been actively engaged in federal recognition issues, representing clients before the DOI. In all of these matters, she has assisted clients to navigate their issues both with the federal agencies and with the United States Congress.
Doug MacCourt, Ater Wynne, Portland Oregon
Doug MacCourt is a Partner in the Portland office of Ater Wynne where he leads the Land Use and Redevelopment Practice in the firm's Business Group. Mr. MacCourt has over 25 years of experience in the assessment, remediation, purchase, funding, development and sale of industrial, waterfront, urban and rural properties throughout the Pacific Northwest. Mr. MacCourt is Chair of the firm's Tribal Business Group where he advises Native American tribes, tribal businesses and private developers on a variety of economic development activities on and off tribal lands across the United States.
Doug practices before local, state and federal administrative agencies, trial and appellate courts and represents clients before state and federal legislative bodies to obtain funding and other approvals for development projects. He is listed in Best Lawyers in America in the Native American and Natural Resources Law categories, Chambers USA: America's Leading Lawyers for Business and has been selected as a Top Rated Lawyer in Land Use and Zoning by American Lawyer Media and Martindale-HubbellTM.
Doug has been providing legal services to Indian tribes and tribal enterprises throughout the United States for over two decades. His work emphasizes various aspects of tribal economic development and governance, including project finance, land acquisition and leasing, energy development, casino/hotel projects, taxation, infrastructure development (water, sewer and communications systems), housing, and recreational and healthcare facilities.
5 Session Certificate Program
General Registration (in-person attendance) - $750.00
SU School of Law Alumni/Tribal Attorneys (in-person attendance) - $700.00
Live Webcast - $750.00
Single Session Registrations
General Registration (in-person attendance) - $175.00/session
SU School of Law Alumni/Tribal Attorneys (in-person attendance) - $150.00/session
Live Webcast - $175.00/session