X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Heidi McNeil Staudenmaier jokes that one Indian law course in law school made her the firm’s expert on Indian legal matters when she landed her first job as a business litigator in 1985. It’s no joke now. In the past decade, Indian law issues have steadily expanded to fill most of Staudenmaier’s workload at Snell & Wilmer’s Phoenix office. What was once just 10% of her practice has mushroomed into about 90% of her workload. A growing amount of that work stems from issues related to Indian gaming, which has exploded as tribes from California to Connecticut launch, expand and promote Las Vegas-style casinos on their land. Indian gaming is already big business: In 2003, the 377 casinos operated by Indian tribes in 30 states reported nearly $16 billion in revenue. And more casinos are in the pipeline: Wisconsin’s Ho-Chunk Nation wants to build Illinois’ largest casino in a Chicago suburb. The Lytton Band of Pomo Indians is seeking legislative approval for a 2,500-slot machine casino in the San Francisco Bay area. The Cayuga Nation of New York state is eager to construct a casino in the heart of the Catskills. A new corporate client The tribes that own casinos and resorts need the same breadth and complexity of legal advice as corporate clients, but they face unique issues because they are governed by Indian tribal law and federal law. Lawyers who specialize in Indian law say the field-once largely the realm of former Legal Aid attorneys in western outposts-is attracting attention and resources from firms with the resources and expertise to handle intricate negotiations and sophisticated deals. “I think every big firm has looked at it and is considering it,” Staudenmaier said, “because it’s a growing area, whether they represent tribes or a business that does business with tribes.” Holland & Knight gained the expertise and established client base of Indian law specialist Jerome L. Levine four years ago. Levine merged his Los Angeles firm with Holland & Knight and became director of its national Indian law practice group, which has about 20 lawyers and draws on hundreds of others. The group represents 30 tribal governments around the country and companies that do business with tribal governments. The merger benefited both parties: Levine’s eight-lawyer practice couldn’t meet the demand for the increasingly specialized legal services that his tribal clients needed, and, because Indian matters are regulated by federal law, he wanted a firm with a Washington presence. Holland & Knight in turn acquired a specialty team with established connections and what Levine concedes is “a lot of expertise in fairly esoteric areas of law.” Those areas include natural resources development, shopping center development, labor and employment issues and tribal governments. Staudenmaier’s firm, which employs more than 350 lawyers, has four full-time Indian rights attorneys. She can tap another two dozen specialists in litigation, employment and labor, financing, bonds, intellectual property, real estate and environment. “In the past, an individual lawyer could do everything, but now, the interests are so expansive,” she said. “The traditional tribal attorneys branch out or hire specialists.” Rapid growth at Akin Gump Akin Gump Strauss Hauer & Feld’s American Indian law and policy practice in Washington has grown to nine attorneys since its debut five years ago. Two more will soon come on board, and the section is expected to expand to 15 lawyers in another two years, said Don Pongrace, the partner in charge. The firm wrote and negotiated a gaming compact that allowed the Seneca Nation of Indians to open the country’s largest off-reservation casino, a 50-acre complex in Niagara Falls, N.Y. Until the late 1980s, attorneys who practiced Indian law spent most of their time on resolving conflicts between states and tribes about natural resources, such as hunting and fishing rights. That changed in 1988, when Congress passed the Indian Gaming Rights Act, which permitted tribes to offer casino-style gaming. The act was a response to a U.S. Supreme Court decision that invalidated California’s attempts to prevent Indian tribes from operating bingo halls. The court held that the state’s bingo statute was regulatory, not criminal, and therefore could not be applied to Indian tribes because Public Law No. 280 prohibited enforcing state regulatory statutes against tribes. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). The Indian Gaming Rights Act permitted tribes to offer lucrative casino-type gaming-slot machines, high-stakes gambling, pari-mutuel betting-on Indian property, subject to some level of regulatory control. In the 16 years since the act’s passage, nearly 350 Indian casinos have opened in 30 states. The world’s largest casino, Foxwoods Resort, is owned by the Mashantucket Pequot. Their Connecticut complex offers 5,500 slot machines, three hotels and a 1,450-seat theater, as well as an Indian museum. California, which has more than 100 Indian tribes, has more than 50 Indian casinos. And Indian gaming is still a front-burner legal issue in California. Earlier this month, a number of Golden State racetracks that want to add slot machines through a November ballot measure filed suits aimed at killing Governor Arnold Schwarzenegger’s agreement giving five tribes the right to unlimited slots at their gaming facilities. Craig v. Schwarzenegger, No. RGO 4175-471 (Alameda Co., Calif., Super. Ct.). As busloads of non-Indians throng to Indian property to gamble at blackjack tables or work in casinos and Indian hotels, lawyers have been forced to grapple with complex questions about jurisdiction and sovereignty. For example, many states do not have criminal jurisdiction on Indian land, so how should a crime in a casino be handled? How about employment issues such as workers’ compensation? “There still are open questions about how far a state can go in exerting its authority” over gaming, said Cathy Christian, who represents municipalities in negotiations with tribes. She’s a partner at the Sacramento, Calif., firm Nielsen, Merksamer, Parrinello, Mueller & Naylor. “As tribes become more and more involved in these ventures, the questions only become more thorny.” Tribes largely enjoy immunity from state law, and their earnings are not taxable. Most legal issues that arise on Indian property are resolved through the Indian legal system, which has a credentialing program for practicing attorneys. Tribal judges-not juries-decide cases. At the Foxwoods casino, personal injury awards cannot exceed the injured party’s medical bills. There are no awards for pain and suffering, said Robert L. Hirtle, who has handled Indian issues for more than 15 years. He is a senior partner at Rogin, Nassau, Caplan, Lassman & Hirtle in Hartford, Conn. Hot item: sovereignty Tribes are adamant about retaining their hard-won right to govern themselves as they see fit and are vigilant against efforts to chip away at their sovereignty. Sovereignty, Staudenmaier said, “is a very hot and very valued attribute of tribes. They’re not going to give up on that right.” Attorneys who have a long history with Indian clients and interests understand and respect that fierce attachment to sovereignty, said Tony Cohen, head of the Indian law section at Clement, Fitzpatrick & Kenworthy in Santa Rosa, Calif. Cohen first worked with Navajos in the late 1970s while in law school. Since 1995, he’s focused exclusively on Indian affairs, particularly gaming and sovereignty. He represents the Shingle Springs band of Miwok Indians and the Lytton band of Pomo Indians. Many of the established attorneys practicing federal Indian law got their start the way he did-by providing Legal Aid services to impoverished Indians. “Much to our surprise,” he said, “we found something we loved to do [was something] we could be paid to do.” Seeing past the casinos Cohen is critical of big law firms that specialize in Indian law solely to cash in on the multimillion-dollar deals and complex negotiations involved in building an entertainment and gambling complex. “They see the money, but they don’t necessarily love the work or the people,” he said. Indian tribes want to be represented by people who understand and respect their history and values. They’re not wowed by the cachet of a big-name firm. “Tribes do shop around for firms,” said Hirtle, the Connecticut attorney. “I’ve been in a number of those meetings, but most firms don’t have someone who’s familiar with their culture.” Those who do are reaping the benefits. Attorney Barry Brandon, a member of the Creek Nation of Oklahoma, helped establish Akin Gump’s American Indian law and policy team. Brandon, who recently left the firm to become senior vice president and general counsel for the Seneca Gaming Corp., understood his clients’ needs and was also “extremely helpful” in recruiting other talented Indian attorneys, Pongrace said. Akin Gump’s team includes members of the Wampanoag and Pomo tribes. Hirtle can greet Navajos in their native language and is conversant in Algonquin, which is spoken or understood by most East Coast tribes. He also knows that a tribal elder will start and conclude even legal meetings with a short devotion to the Great Creator. “That’s something that blows the mind of a New York lawyer,” Hirtle said. Indian law remains a difficult practice area for newcomers to crack because of the weight Indians place on a rapport with their attorneys, said Levine of Holland & Knight. “It takes a lot of time to develop those relationships and the lawyers with the skills who can do it,” he said. “This doesn’t lend itself well to conventional ways of generating business.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.