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California Gov. Arnold Schwarzenegger’s office is reportedly close to reaching a deal with at least four major Native American tribes that would have them hand the state more than $1 billion in casino winnings. Where there’s that much money, lawyers can’t be far behind. Tribes have long looked to a handful of smaller tribal law boutiques for their legal needs. With Indian gambling now a $15 billion business, legions of lawyers are vying for a piece of the action. But the path to the jackpot is complicated by the tribes’ unique legal status. “You’re always dealing with multiple levels of law,” said Howard Dickstein of Sacramento’s Dickstein & Zerbi, who represents three of the tribes in talks with the governor. “That’s what makes it interesting: the mixture of tribal law, the negotiation of intergovernmental agreements, and, of course, the overarching federal laws.” Congress granted Indian tribes permission to run casinos in 1988. Now they have legal needs more complex than many mega-businesses. And they’ve got the resources to hire top firms. But it’s a hard practice to crack. Tribal leaders often mistrust non-Native American authorities, said Thomas Weathers, a Native American and a partner at Berkeley, Calif. tribal law boutique Alexander, Berkey, Williams & Weathers. Individual tribes have their own legal systems, and tribes are treated more like foreign governments than corporations. Gaming tribes have special state compacts — like the ones being renegotiated with the governor — and all Native land is held in trust by the feds. Solos and boutiques like Dickstein’s and Weathers’ still dominate the practice in California, having made connections with tribes long before armies of one-armed bandits rattled and rang on their land. “Gaming tribes now have the ability to consider the sorts of transactions that only well-heeled corporations in the past could consider,” said Scott Williams of Alexander Berkey. “They need a wide array of legal services including tax, construction and financing.” “Tribes needed lawyers before, but the legal profession didn’t pay much attention because there wasn’t any money in it,” said Forman & Prochaska’s George Forman, a San Rafael, Calif. lawyer representing the Morongo Band of Mission Indians and the Sycuan Band of Kumeyaay Indians in separate negotiations with the state. “The big firms came when they saw the money.” These days big leaguers such as Pillsbury Winthrop; Squire, Sanders & Dempsey; and Munger, Tolles & Olson are taking a share of the expanding market for casino-related legal services. Pillsbury Winthrop partner Patrick Marshall, who is working on a $40 million to $60 million casino-hotel construction financing deal for a tribe near Sacramento, said tribes are “like Silicon Valley in some ways. There is huge growth because of gaming and the sheer amount of investments they make now.” The casino compacts now under negotiation in Sacramento contain a litany of regulations including limits on the number of casinos and slot machines per tribe. Building, managing and retaining profits from casinos on reservations has never been so complicated. “You’ve got federal oversight, tribal oversight, the National Indian Gaming Commission, management contracts,” said Weathers. Constructing schools, gas stations and restaurants on Indian land is not without entanglements, either. If a tribe wants to lease land for a mini-mart, for example, it must seek approval from the federal Bureau of Indian Affairs, which holds Indian land in trust. The lease “would have to be for fair market value,” Weathers noted. And the deal must address tribal agreements. “They may have certain treaty rights or water rights or hunting and fishing rights,” Weathers said. “You can’t just pluck a contract attorney out of a firm and say �write up this contract for this tribe.’” In addition to grasping the intersection of various jurisdictions and treaties, lawyers who work with tribes need to understand the culture and motivation of their clients. Tribes have a “long history and tradition of mistrust of outsiders,” said Weathers. Some tribal leaders will read outsiders’ body language to determine if they can be trusted. It may take them years to fully establish trust. Dickstein said older tribal leaders may not be formally educated, but most are very intelligent and great listeners. “You have to respect their strength and share their sense of humor,” Dickstein said. “They are great at non-verbal communication.” He recalled a meeting where a tribal leader nixed a new lawyer because he was nervously ringing his hands. “It’s hard to know how tribal people are going to view outsiders,” Dickstein said. “We’ve had a lot of very good lawyers who were not able to establish that rapport.” Tribes also have interests beyond the bottom line. Pillsbury’s Marshall said tribes favor dispute resolution methods that keep their communities intact. For instance, some tribes have internal peacemaker panels or decision-making committees while others rely on tribal courts. “Tribes aren’t only looking to maximize profits,” said Weathers. “They’re looking to preserve their culture. Any lawyer practicing in Indian country needs to be sensitive to that.”

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