Native American Affairs & Federal Indian Law
The representation of Native American tribes and those doing business with them necessarily involves numerous complex legal and practical issues across the fields of environmental, tax, constitutional, water and federal regulatory law. For instance, leases of Native American-owned lands held in trust by the United States are typically governed by federal statute and subject to approval by the United States Bureau of Indian Affairs (BIA). BIA lease approval, in turn, may be subject to environmental review under the National Environmental Policy Act (NEPA). There are also special issues related to working with tribal governments and corporations, including sovereign immunity concerns, dispute resolution procedures, rental periods and periodic review of leases of trust lands. Environmental permitting obligations are also affected. Certain projects on tribal lands or owned by tribal governments may qualify for tax-exempt financing or favorable accelerated depreciation rules. Our experience includes representation of both tribal governments and those doing business with tribes in this complex intersection of law.
We bring a wealth of experience in a variety of practices relevant to development on tribal lands, having represented private developers, lenders and tribal entities themselves in projects including the development of casinos, golf courses, resorts and industrial facilities, and water rights. We have appeared before the US Department of Interior Board of Indian Appeals (IBIA), the administrative court that frequently resolves contractual disputes in Indian Country, and have worked with BIA officials in numerous regions.
The experience of lawyers in our Native American Affairs & Federal Indian Law Practice Group includes:
- Counseling clients on the appropriate scope of NEPA review to be conducted by or on behalf of BIA prior to BIA approving a proposed lease, and whether such approval constitutes “a major federal action significantly impacting the quality of the human environment.”
- Counseling clients on jurisdictional issues such as tribal civil regulatory jurisdiction and the interplay between and among federal, state and tribal courts.
- Representing Indian Country clients on environmental permitting matters arising under the Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act, and counseling on the conduct of remediation and corrective action in such areas.
- Advising clients on Native American water rights issues including quantification, priority and the effects of federal reserved rights and reserved groundwater rights, as well as providing an evaluation of the prospects for Indian water rights transfers on the Colorado River.
- Drafting tribal laws and ordinances in the criminal and civil areas.
- Advising tribal governments on the issuance of tax-exempt financing for tribal government-owned qualifying facilities.
- Providing tax counsel on the accelerated depreciation that may be available under Section 168(j) of the Internal Revenue Code for certain facilities located on tribal lands.
- Negotiating numerous development agreements and leases of tribal lands, providing advice on compliance with the requirements of 25 USC 415 and 25 CFR 162 with regard to such issues as lease duration, rental adjustments or periodic review, dispute resolution and sovereign immunity concerns.
- Advising clients on the implications of the 1934 Indian Reorganization Act on proposed project structures including the relative merits of contracting with a recognized tribe versus a federally chartered tribal corporation.
- Counseling on tribal treaty rights including hunting and fishing rights, and advising clients on compliance with federal regulations pertaining to sensitive archeological artifacts and remains.