American Indian Law & Tribal Law Practice Areas
- Fee to Trust
- Intergovernmental Relations
- Tribal Court & Code Development
- Tribal Employment
- Indian Child Welfare
LAND ACQUISITION FOR TRIBES AND INDIVIDUALS
For most of this nation’s history, our government felt the interests of the American Indians living here were best served by integrating Indian people into the mainstream of American culture. In the latter part of the 19th century, Indians were encouraged to own land as individuals not as tribal property.
At the same time, settlers were encouraged to move to Indian country. They were able to do this by purchasing excess tribal land, thus accomplishing a necessary step to help integrate Native Americans with mainstream America. However, in the early part of the 20th century, the policy began to shift back to the practice of dividing Indian communities from the American Mainstream.
Subsequent to the enactment of the Indian Gaming Regulatory Act (“IGRA”), numerous tribes have acquired land in fee and desire to transfer the land to the United States to be held in “trust” for the benefit of a tribe or an individual. Section 5 of the Indian Reorganization Act (“IRA”) authorizes the Secretary of the Interior to acquire land in trust for Indians and Indian tribes.
Land may be acquired for a tribe in trust status when the property is located within the exterior boundary of a tribe’s reservation or adjacent thereto, or within a tribal consolidation area; when a tribe already owns an interest in the land; or, when the Secretary determines that the acquisition of land is necessary to facilitate tribal self- determination, reservation economic development, or Indian housing. Fee-to-trust acquisitions for gaming purposes are governed by the factors found in 25 C.F.R. Part 151 and the requirements of section 20 of IGRA.
THE FEE-TO-TRUST PROCESS
Placing land owned by a tribe or individual Indian into trust involves more than an application; it is a process. Depending on the purpose of the acquisition, the process may involve tribal, federal, state and local government agencies. The application, at a minimum, must address the statutory requirements of 25 U.S.C. § 465 and the regulatory factors of 25 C.F.R. Part 151. If the acquisition is for gaming or gaming- related purposes, the application may have to be processed pursuant to section 20 of IGRA.
Our experience has shown that the most significant and complex component of the process involves compliance with the National Environmental Policy Act (NEPA). As a federal agency, the BIA must comply with the requirements of NEPA in making a determination to accept land into trust. The level of analysis required is generally dependent on whether the land acquisition could significantly affect the environment.
The levels of analysis include a categorical exclusion determination, an environmental assessment, and/or an environmental impact statement. An environmental assessment must provide an analysis of the degree of significance of any expected impact.
At Thompson Law Office, we partner with our tribal clients and utilize our mutual education and experience. We can assist a tribe or individual with land purchase, the application, NEPA compliance, IGRA compliance, negotiations with government agencies, and administrative, state or federal litigation.
As sovereigns, American Indian tribes have a unique status that sets them apart from political entities and “special interest groups.” In his memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 Fed. Reg. 22951), President Clinton reinforced this status and set forth guidelines in order to ensure that the federal government operates within a government-to-government relationship with Native American tribal governments.
SOURCES OF CONFLICT
With respect to American Indian tribes, however, another set of government-to government relationships exists between the tribal, state and local governments. These relationships have historically resulted in conflict rather than cooperation. Controversy may arise involving attempts by states to impose taxes on transactions in Indian country; the extent of civil and criminal jurisdiction; law enforcement; sovereign immunity; and treaty rights.
Jurisdictional disputes involving territory and people are a particularly volatile source of tribal-state conflict. These disputes are “human issues” that can result in ripping apart native and non-native communities that may co-exist within areas of Indian country.
Conflict can be reduced when tribes exercise their sovereignty and pursue intergovernmental agreements with state and local governments. Agreements may address topics such as law enforcement, taxation of fuel and tobacco sales, gaming regulation, and sharing of services. Agreements between tribal governments may also be beneficial under certain circumstances.
The attorneys of Thompson Law Office bring their experience in drafting, negotiating and implementing intergovernmental agreements between American Indian tribes and governments at the tribal, federal, state and local levels. Our law firm takes pride in negotiating agreements that provide workable solutions to complex problems and address anticipated conflicts in an effort to avoid later litigation. Let us help your tribe negotiate a favorable agreement that is fair and will foster, rather than hinder, good intergovernmental relations.
COMPLEXITY OF JURISDICTION
There is no easy formula for maintaining peace while ensuring justice to those that would disturb it. The task becomes even more daunting in “Indian country,” where, depending upon the circumstances, three different sovereigns may have claims to jurisdiction. Treaty provisions, the Indian status of defendant and victim, the Indian country status of the crime’s location, the nature of the crime committed, the applicability of Public Law 83-280 (“PL 280”), and any federal laws applicable to a specific tribe may all impact law and order on an Indian reservation.
ONE SIZE DOES NOT FIT ALL
Every tribal government and every corner of Indian country is different. Some tribes have treaties with the federal government. Some tribes organized under the Indian Reorganization Act (“IRA”). Some tribes have their own tribal courts; others rely on Courts of Indian Offenses (or “CFR Courts”); some tribes have formed consortiums courts; and still others employ traditional forms of dispute resolution. Tribal laws may take the form of ordinances, comprehensive tribal codes, and oral traditions or customs. Law enforcement may be provided by the Bureau of Indian Affairs or by a tribe pursuant to a self-determination (“638”) contract or through self-funding.
Due to the variety of circumstances existing among Indian tribes, achieving law and order requires an approach uniquely tailored to those particular circumstances. What works for one tribe may not necessarily work for another tribe. The attorneys of Thompson Law Office recognize that no two tribes are alike and are dedicated to providing customized assistance to tribal governments developing or reforming tribal courts and tribal codes. We can provide intensive onsite assistance or provide remote support to meet the demands of a project.
TRIBAL CODE DIGITIZATION
For tribes with older written tribal codes, Thompson Law Office offers tribal code digitization. Our staff can transform a paper document into an editable electronic document in Word or WordPerfect formats to facilitate future amendments. We also offer tribal code digitization into searchable portable document format (“pdf”) so that a tribal code can be accessed from a CD or tribal website without compromising the security of the law’s content.
BALANCING EMPLOYEE RIGHTS
Labor and employment issues in Indian country pose unique problems. Tribal economic development often means that member employment is, at times, more important than generating profit. Member employees have rights as employees, as members of the tribe, and as citizens of the state and country. These rights often harmonize. But just as often, they become entangled in a jurisdictional web that tests time-honored traditions of self-determination, sovereignty, and immunity.
Add to this the fact that member employees are also neighbors, friends, and family, and it becomes easy to see the costs, complexities, and investments associated with developing a stable, efficient workforce. These competing interests require a deft and delicate balance between management rights, contemporary notions of fair, non-discriminatory employment practices, and the rights of individual members as employees and tribal citizens.
IMPLEMENTING EMPLOYEE RIGHTS
Indians have suffered discrimination in employment on and near reservations. They continue to be excluded from the employment market and when employed by private employers experience discrimination. They also suffer poverty and high unemployment rates. These are just a few of the consequences of the failure of tribal members and other Indians to be treated fairly in employment.
At Thompson Law Office, we are uniquely attuned to the many issues tribes face in developing their individual economic enterprises. We look for ways to achieve a balance between managerial authority and the tribe’s desire to treat employees with dignity and respect, consistent with contemporary fair employment standards. To that end, we assist tribes in drafting employment policies and manuals, as well as the proper employment rights ordinances giving effect to the delicate balance necessary for mutually beneficial economic development.
The attorneys at our firm are experienced in labor and employment law. We provide arbitration services and general litigation where necessary. We offer counsel on a broad range of tribal employment issues such as gaming compact review and compliance; preparation of employee handbooks; wage and overtime issues; Family Medical Leave; discrimination and harassment policies; human resources; union and management issues. We are also well-equipped to educate tribes on tribal employment laws and ordinances and take whatever necessary action for fair implementation of these ordinances including consulting and making agreements with employers and conducting on-site inspections and investigations.
INDIAN CHILD WELFARE ACT
In 1978, Congress passed the Indian Child Welfare Act (ICWA) to address the wrongs that Native Americans and tribes were suffering at the hands of state agencies relating to the welfare of Indian children. Since then, ICWA has provided a vehicle for tribes to reclaim jurisdiction over their children, participate in state proceedings involving the welfare of children eligible for enrollment in a federally recognized tribe, and determine tribal placement preferences that reflect the culture and traditions of each different tribe.
HISTORY OF ICWA
Historically, state agencies, such as Child Protective Services, were ignorant of the culture and traditions of the tribes that were found within state and county lines. This ignorance led to the wrongful removal of many Indian children from their families. This problem was often compounded by the placement of these children in non-Indian homes. It seems that many state agencies felt that Indian children, once removed from their homes on reservations, were better off living with non-Indian families off of the reservations. After hearing overwhelming testimony to the contrary from Indian people, Congress reacted by passing ICWA.
THE IMPACT OF ICWA
The losses that are suffered when an Indian child grows up without the benefit and protection of his or her family and tribe are grave. The child loses his or her cultural and political identity as a member of the tribal community and the tribe itself stands to lose its very future. Each child has a potential role in the future of its tribe. Without the children to pass on the tribe’s way of life, the cultural, political, and religious identity of the tribe is threatened. Thus, the impact of ICWA is an excellent solution in preserving the sovereignty of tribes.
The ICWA attorneys at Thompson Law Office believe strongly in the right of tribes to advocate for the best interests of their children. As a law firm, we have extensive experience with and education in ICWA.
Having appeared in ICWA cases in tribal and state courts, we are well-equipped to effectively advocate for tribes and their members’ best interests, as well as the welfare of their children. Additionally, we are able to advise tribes on enacting internal tribal policies that protect and preserve the tribe’s interest in ICWA cases.