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In 1997 Rodney Lewis was on a roll. In the four years since his tribe, the Gila River Indian Community, had opened its first casino, millions of dollars had streamed into its once meager coffers. Now the tribe’s general counsel was trying to parlay that revenue into a play of even greater economic and historic significance. Lewis wanted to get his river back. The Gila, who today number 16,000, have lived just southeast of what is now Phoenix for an estimated 1,200 years. For most of that time, members fished and farmed for their subsistence. But that life became increasingly difficult after settlers upstream began diverting water from the Gila River during the 1880s. A 1935 decree divided up rights to the river water, and the Gila — effectively shut out of the legal deliberations that led to the decree — have been fighting for redress ever since. In stepping up his fight for reclamation of the river in 1997, Lewis was building on a decision he’d made the year before, when he’d taken about $500,000 in tribal casino proceeds and hired five lawyers to create a new Office of Water Rights. The idea was to gain additional leverage by simultaneously pursuing actions in Arizona state and federal court. The office had begun to put pressure on the courts to move these cases, which had been dragged out interminably by continuances. But then, in May 1997, Lewis received a phone call. A movement was afoot in Congress to hit the Gila and other gambling-enriched tribes with a stiff new tax. The effort constituted a threat to the tribe’s economic well-being and, by extension, to the funding of its river reclamation campaign. “We were just caught flat surprised by that move,” recalls Lewis, in his typically understated fashion. The threat would be among the toughest the 61-year-old lawyer had faced in his 25-year tenure. The challenge would lead him to lawyers and lobbyists at Akin, Gump, Strauss, Hauer & Feld, a venerable Washington, D.C., law firm, and to the beginning of a beautiful friendship. This is a case study of how Lewis and Akin Gump built their relationship. A companion story describes how the firm leveraged its work for the Gila into a vibrant new practice group. And an attached chart reveals the progress other major firms have made — getting in on the legal action in what Lewis once again happily calls Indian country. Bill Archer, then chairman of the House Ways and Means Committee, had proposed the 30 percent tax on gaming revenue. Tribes across the nation were thrown into a tailspin. As part of their sovereignty — the principle that establishes tribes as independent governments, nations within a nation — tribes were supposed to be exempt from such taxation. Or so they thought. Unfamiliar with the workings of this particular committee, the Gila scrambled to find outside counsel. With the help of his deputy general counsel, Steven Heeley, Lewis began to vet prospective firms. A member of the Potawatomi tribe of Walpole, Ontario, Heeley had just returned to the Gila legal team from a seven-year stint in the Senate Committee on Indian Affairs. So he at least knew the world of Washington lobbyists. Together they decided that the tribe needed a champion with contacts and influence on both sides of the aisle. They needed an advocate, Lewis concluded, like Akin Gump. Lewis didn’t know anyone there, but a tribal employee was personally acquainted with Donald Pongrace, a partner in the firm’s public policy group. Lewis called. Although essentially ignorant of American Indian issues, Pongrace understood the urgency of the taxation matter and phoned his colleague, Smith Davis, who happened to be visiting his brother in the Phoenix suburb of Scottsdale. That night, Davis met Lewis for drinks, and the next day the 54-year-old public policy partner sat with the general counsel and other Gila members to discuss the taxation issues and develop a strategy. Davis and Pongrace worked with the lobbyists representing other gaming tribes to develop a coordinated effort to kill the tax. The first prong of the defensive, recalls Davis, was an education campaign. “We needed to serve as a truth squad,” Davis says. There was confusion over the nature of the tax and tribal sovereignty. Pongrace admits that he, too, needed a primer on that subject, laughing now that there was a time the concept wasn’t part of his vernacular. “I didn’t know anything about Indian country then,” he says, “and now, if anything, I’m in danger of becoming too close to the client.” The lawyers found support in the Gila tribe’s Republican representative, J.D. Hayworth, who was on the Ways and Means Committee and who agreed to introduce an amendment quashing the tax. In what Pongrace recalls as a very dramatic showing, Hayworth spoke before his committee using the Constitution as a prop to argue for tribal sovereignty. The tax provision — which might well have put an end to the fledgling gaming economies of tribes nationwide — was killed in the committee by a bipartisan vote. For Akin Gump, this might have been a onetime job. But the relationship soon flowered into an enduring, institutional client — and eventually into a full-blown American Indian practice area. The tribe, which had for many years done its own lobbying, had discovered the advantages of outsourcing and retained the firm as its regular Washington, D.C., counsel. Over the past five years Akin Gump has won nearly $75 million in federal funds for the tribe. Some grants came from standard efforts such as lobbying agencies like the U.S. Interior Department’s Bureau of Reclamations for funds to rehabilitate the canals that distribute water throughout the reservation. In a more inventive turn, Pongrace has used his knowledge of the Hill to secure funds for a diabetes education and treatment center. (The tribe has one of the highest worldwide incidences of adult-onset diabetes, with 51 percent of members afflicted.) Pongrace saw Speaker of the House Dennis Hastert, a spokesperson for juvenile diabetes and himself a diabetic, as the perfect advocate for the cause. Hastert helped J.D. Hayworth secure $1.9 million in grant money from the U.S. Department of Health and Human Services for the facility. To raise additional funds for the operation of the center, Pongrace organized “The Speaker’s Cup,” an annual, tribally sponsored golf tournament that Hastert participates in, held on the Gila golf course in Arizona. Pongrace also advises the tribe on its political profile, including which individuals and organizations to support financially. The contributions cross party lines. According to a Web site of the Center for Responsive Politics, opensecrets.org, the tribe (or its members) has donated about $55,000 across party lines since 1999. The advocacy hasn’t come cheap. Although the bill for killing the gaming tax was only about $30,000, Lewis says, fees have since spiraled higher. The firm billed the Gila $1.5 million in 2000, making the tribe Akin Gump’s second-biggest lobbying client that year, behind only AT&T Corp. (Lewis estimates the tribe paid Akin Gump roughly the same amount in legal fees in 2001, and he budgeted similar amounts for 2002 and 2003.) Akin Gump gets the biggest share of the Gila’s $5 million legal budget. The tribe now has a roster of about two dozen law firms and solo practitioners working on its behalf. A cluster of other law firms, most based in Washington, D.C., has also begun filling the demand for big-firm services in other parts of Indian Country. With the intricacies of gambling law peculiar to individual states, the tribe has retained local Phoenix firm Mariscal, Weeks, McIntyre & Friedlander and the Phoenix office of Santa Fe’s Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Frye on these matters. Like other corporate general counsel, Lewis says he tries to keep at least some work inside. But, he says, “our legal needs have escalated with our revenues. We have 16 attorneys now in-house and are barely able to keep up with needs on the reservation, let alone outside of it.” Rodney Lewis was born on the Gila reservation in 1940, just two years after the tribe was federally recognized. During his childhood, the Bureau of Indian Affairs, the agency within the Department of Interior that handles most American Indian issues, acted as the Gila’s trustee. That relationship was often intrusive and paternalistic. “Everything was based on the idea of Indians as wards of the federal government — that the BIA should take care of us completely,” says Lewis. That was the case in 1935, when the water settlement, which is still in effect today, was hammered out in Tucson federal court. The construction of the Coolidge Dam in 1928 diverted the Gila River from the valley where much of the tribe lived — and lives. The Gila retained a lawyer to represent its interests in the water negotiations, but according to Lewis, the tribe’s counsel was not even permitted to enter the courtroom where the settlement talks were held. Instead, lawyers from the BIA negotiated on behalf of the tribe, leaving it with a settlement it finds unjust and has fought against ever since. After graduating from Arizona State University in 1962, Lewis left the reservation for a two-year stint in the U.S. Army. Stationed in New Jersey during the mid-1960s, he traveled into New York City on weekends and discovered a new world. “It was through those travels and through those times, with the civil rights movement going on,” Lewis says in a low, thoughtful voice, “that I realized lawyers were helpful in solving questions of political and social status.” Lewis applied to law school and was admitted to the University of California School of Law at Los Angeles; for tuition, he scraped together BIA grants and the benefits due him from military service. After graduating in 1972, Lewis became the first American Indian admitted to the Arizona State Bar and one of only a handful of other American Indian attorneys in the country. (Philip “Sam” Deloria of the University of New Mexico conducted a study in 1967 that counted only about two dozen attorneys of American Indian descent.) At the time Lewis graduated from law school, the Legal Services Corporation was recruiting attorneys to work on reservations. And so, on a fellowship, with a $10,500 salary, Lewis became the first in-house attorney working solely on the Gila’s behalf. (Prior to Lewis signing on, the tribe intermittently employed Phoenix’s Cox & Cox, which has since disbanded.) When Lewis began, the tribe had an extremely limited budget and no resources to pursue a long, expensive water battle. But Lewis kept looking for ways to promote the tribe’s independence. Using Nixon-era policy changes, the Gila leveraged federal grants and the proceeds from the tribe’s irrigation-fed cotton crop to fund small aluminum and lumber projects. While these efforts were, Lewis concedes, “at most modestly successful,” they gave the tribe a new sense of self-determination. Lewis was breaking legal ground for other tribes as well. In 1980 his counseling of the Gila brought him before the U.S. Supreme Court, arguing over the taxation of some John Deere plowing equipment. He successfully argued that transactions in which the purchase, payment, and delivery of an item all occur on a reservation are exempt from state sales tax. Throughout, Lewis felt the pull of the river. Yet, despite his resume, Lewis still had to petition for and win the right to represent the tribe in its water rights litigation, a victory finally gained in 1983. That ended 50 years of representation of the tribe by a U.S. government trustee — yet another step toward Gila self-determination. Lewis hired a Phoenix firm to assist in the litigation, but took the matters in-house after creating the five-lawyer water rights department. In federal court the Gila are trying to enforce the 1935 Globe Equity Decree. That pact divvies up the water from the Gila River — both its flowing portion and that which collects in the Coolidge Dam — among the Gila and about 40 other parties, most notably farmers in the valleys upstream from the tribe. The tribe currently receives about 100,000 acre-feet of water a year through this decree (one acre-foot provides a year’s supply to a family of five), but seeks about 300,000 acre-feet. How much the Gila get each year is determined by formulas related to the amounts of water in the river and the dam. The federal court hearings are episodic; there have been four in the last two decades. The most recent, held in March, involved a dispute between the upstream farmers and the Gila over 900 wells. The stakes are high for the farmers: “If they were to lose pumping rights,” says L. Anthony Fines of the Tucson office of Phoenix’s Snell & Wilmer, which represents farmers in the Upper Valley, “it’d be bad. That fuels a substantial part of [their] economy.” As of early September, the parties were still awaiting a decision. At the same time, the tribe is a party to the so-called general stream adjudication in state court in Phoenix. This proceeding involves thousands of parties; anyone in the state with a claim to surface water submits it to the water master, who then judges its validity against competing claims. (All of the parties to the federal litigation are also involved in this adjudication.) Here, the Gila, who are again represented by their Office of Water Rights, seek 1.2 million acre-feet of water from the Gila, Salt, and Verde Rivers; that amount is based on formulas mandated by the Supreme Court and includes the 300,000 acre-feet sought in the federal litigation water claim. If this claim were met, then the tribe’s total claim — from all venues — would be satisfied. At the present time, hydrologists are assessing the tribe’s actual claim, a process that will take about two years. While the court skirmishes continue, Lewis and the Gila decided to seek a permanent solution. Five years ago, Lewis asked Pongrace, who had just successfully handled the gaming tax, to develop federal legislation that would create a global settlement. First, Pongrace and another Akin Gump partner, John Pitts, a water expert who made his reputation settling water battles in Texas, had to master the bewildering maze of Arizona water claims. Pongrace worked with Arizona’s junior senator, Jon Kyl, and Representative Hayworth, on the legislation. They agreed to sponsor the settlement bill only if all the major parties to the various litigations — including the Upper Valley farmers and municipalities such as the town of Safford — had signed off on it. The actual negotiations process required a lot of patience and faith from Pongrace and from Gila in-houser James Hill. It meant sitting down with each party and discussing its specific issues with the settlement and then piecing together all of those individual agreements to find enough water to meet the tribe’s needs. Of his role in the process, Pongrace says: “You push, you cheer, you chastise, and you get it done.” Under the proposed federal bill, the tribe would eventually double its current take of water to 653,500 acre-feet. The water would come from the Gila River, the Coolidge Dam, and the Central Arizona Project (“CAP”) which doles out Colorado River water. The bill also provides $200 million in funding to the tribe for it to refine its distribution and water delivery systems. After all, the water is of no use if it can’t be consumed — and building the infrastructure in what is essentially desert land will be a slow process. According to Gila governor Donald Antone, this extra water will allow the Gila to farm some 146,000 acres of reservation land, almost six times the current 25,000 harvested acres. Lewis estimates that the additional farming could bring the tribe tens of millions of dollars. Arable land will be an even pricier commodity in the near future, the Gila reason, due to the rapid development of the Phoenix area. “In five to ten years,” Antone says, waving his arm to signify the sweep of land lying beyond his office wall, “this will be the only green spot left. The metropolitan areas will be looking to us for their survival.” Phoenix is the fastest-growing urban area in the U.S., adding 1.8 million residents during the last 30 years (according to the Morrison Institute for Public Policy of Arizona State University). With the lack of water in the Southwest, the Gila could be in a lucrative position if this bill were enacted. Beyond their own farming, the tribe’s current water settlement would also enable it to lease water to surrounding areas — at an uncertain, but likely huge, profit. (This would, of course, come at some expense to increased farming.) Pongrace hopes the bill can move before Congress adjourns. If not, they’ll try again next year. If the bill is approved, the Arizona legislature must still pass companion legislation, and the state and federal courts will need to sign off, too. This process could take another five years, Pongrace says. “The deal is not a deal until we get all our money,” says Lewis, “and our water, too.” While he waits for his water, Rod Lewis is counting his chips. The Gila now operate three casinos, which they manage themselves. After Congress legalized gambling on reservations through the 1988 Indian Gaming Regulatory Act, casinos spread like neon wildfire across the country, and outside contractors such as Harrah’s swooped down upon the scene to manage tribal gambling operations. The Gila resisted. “There was a feeling that we’d lose not only control,” explains Lewis, “but also revenue with an outside entity coming in.” The casinos have created nothing less than a financial revolution for the tribe; while not disclosing revenue figures, Lewis says that the tribe’s revenue is currently more than ten times what it was a decade ago, before the advent of gaming. (According to statistics from the National Indian Gaming Commission, the Gila pull in more than $100 million a year from casino operations.) The tribe also has a host of firms working on nongambling matters. With its gaming compact with the state of Arizona (which allows the tribe to operate its casinos in the state) due to expire in 2003 and federal legislation always a question mark, the Gila have branched out into other economic endeavors. A hotel and resort complex that cost about $125 million was scheduled to open this fall on the cactus-dotted reservation. Given the size of this endeavor, the tribe has retained Sheraton, a division of Starwood Hotels & Resorts Worldwide, Inc., to manage the resort, which will have a 500-room hotel, two 18-hole golf courses (one of which has been open for over a year) and an equestrian trail. And all this development has generated a wealth of new legal work — lucrative work that firms are vying for. The tribe holds beauty contests before deciding which firm will represent it on a given project, but it often ends up with Akin Gump — sending labor, transactional, and even IP work the firm’s way. Akin Gump now handles the joint development work with Starwood and negotiates related deal and management fees. The firm also monitors the tribe’s IP interests by spearheading such efforts as trademarking the ancestral tribal images used in the Gila golf basket designs. It’s been a dizzying few years for the tribe. Standing inside its Whirlwind Golf Course clubhouse on a December morning, Lewis points to the spot on the dusty horizon where plowed earth and a somber metal exoskeleton foreshadow the progress to come. As soft light streaks the hard blue sky, Lewis ponders the play of new and old along the reservation: A 500-room hotel ringed by ancient mountains; golf courses amidst the cactus and sagebrush; casinos alongside old farmland. The Gila have added one more symbol to the mix, a little more purposefully. Within the new resort, a manmade replica of the old Gila River, which had been drained to dust decades ago, will flow again along its old course. And Lewis will enjoy the view while he waits for Pongrace to bring back to him what he has wanted so long — his water. Related chart: The Tribes’ Hired Guns

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