Tribes tap into resources of major law firms
Friday, January 19, 2007
Tribes are increasingly turning to big-name law firms to help them navigate state and federal laws and work with their business partners.
Historically, tribes relied on boutiques, or small firms that specialized in Indian law. But now, many of the top 100 law firms have developed their own Indian law practice groups, according to The Recorder.
"They need the same type of legal representation as any Fortune 500 company would need," one attorney said of his tribal clients.
Most of the big firms, though, don't have many tribal members on staff. And they often run into conflicts when they represent clients who are in disputes with tribes.
"Just because a case doesn't have your tribal client as a party, if it's anti-sovereignty it hurts all tribes," said Heather Dawn Thompson of the National Congress of American Indians.
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Indian Tribes Bet on Big Firms (The Recorder 1/19)
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Indian Tribes Bet on Big Firms
Zusha Elinson
The Recorder
January 19, 2007
Printer-friendly Email this Article Reprints & Permissions Partner Paula Yost helped found Sonnenschein Nath & Rosenthal's practice group for Indian law.
Image: Jason Doiy/The Recorder
When the Pojoaque Pueblo in New Mexico decided to go ahead with a huge $245 million casino, resort and infrastructure development last year, they turned to the capital markets for financing instead of the bank loans or government grants traditionally used by tribes.
They also turned to mega law firm Orrick, Herrington & Sutcliffe for legal advice on the financing instead of a more traditional legal resource -- Indian law boutiques.
"When I started, it was a practice area that only a few boutique firms were involved in," said Townsend Hyatt, who advised on the Pojoaque financing and, a decade after entering the practice, now heads Orrick's tribal finance group. "As tribes have expanded economically, politically, numerically -- and certainly, as their socio-economic status has risen -- they have the economic means to hire law firms that they would not have hired before."
To serve this need, larger firms are increasingly organizing formal Indian law practice groups. Holland & Knight, Akin Gump Strauss Hauer & Feld, Dorsey & Whitney and Pillsbury Winthrop Shaw Pittman are some of the other Am Law 100 firms with similar practice groups, most of which range from 10 to 30 lawyers.
Those lawyers are kept busy. Tribes have to deal with federal law, state and local laws, large business partners such as Las Vegas casino operators and major financial institutions.
"They need the same type of legal representation as any Fortune 500 company would need," said Dan Casas, general counsel for the Table Mountain Rancheria Band of Mission Indians near Fresno, Calif., who uses Sonnenschein Nath & Rosenthal for the tribe's litigation matters.
Casas hired Sonnenschein in 1999 when he decided that the boutique firm handling a dispute with a terminated gaming contractor lacked the expertise.
Sonnenschein partner Paula Yost, a civil litigator in San Francisco, was quickly thrust into the complexities of federal Indian law.
"It was one of the hardest cases I worked on and one of the most rewarding," Yost said.
The tribe was being sued by a Las Vegas management company, American Vantage Cos., that the tribe believed had exerted illegal control over its casino, violating federal law. The litigation, American Vantage Companies, Inc. v. Table Mountain Rancheria, was dismissed in both state and federal courts in part on the grounds of sovereign immunity, with the final ruling coming in 2003.
Since then, Yost has continued to represent the tribe and co-founded the firm's Indian law practice group, which was formalized in 2005 and encompasses more than 25 lawyers across the country. And while Casas still turns to smaller firms for some of the tribe's work, the more difficult cases go to Sonnenschein.
Another tribe, the Shingle Springs Band of Miwok Indians, also hired the firm for a complicated court battle. The firm has nearly wrapped up a five-year slog through state and federal courts against a set of challenges by California's El Dorado County and others to the tribe's plans for a casino.
TRIBAL TRANSACTIONS
Litigation that ends up in a federal court is complex enough, but transactional lawyers face an added challenge -- they often have to learn the particular laws governing each tribe. Any detail of a proposed transaction may be governed by a unique tribal regulation.
"It is in the approval process, the ability to enter into contracts, the ability to pledge certain assets, the election of which law to apply, the election of which means to settle a dispute -- all of that is something each tribe has control over," said Orrick's Hyatt, whose practice group was formalized in 2003 and includes 18 lawyers. "It's something that varies from tribe to tribe."
In 2006, the Portland, Ore.-based Hyatt dealt with several sets of laws, advising tribes and underwriters like JP Morgan Chase on financing deals across California, Arizona and New Mexico. Many of these tribes, like the Pojoaque Pueblo, turned to bond financing last year. Bonds can raise big money, but they require a good credit rating. And until recently, most tribes didn't have a rating at all.
"Many more tribes want to have more financing options, and they're getting rated," Hyatt said. "Five years ago, you could count on one hand the number of tribes that had credit ratings. Now it's a lot more common."
Attorneys say many tribes are now on the financial scale to use the same business tools and investment strategies as major corporations.
"This is going to be an increasing phenomenon going forward," said Blaine Green, co-chairman of Pillsbury's Indian law practice team, which was formalized eight months ago and consists of about 15 lawyers. "[Tribes are] moving beyond entertainment venues to financial services, insurance and real estate development."
The trend doesn't just mean more business for the tribes' lawyers. Large companies and financiers are increasingly interested in doing business with the tribes, said Green, a partner in Pillsbury's San Francisco office.
"As the rest of the country becomes more aware of the business success the tribes have had, and more aware of how tribes are diversifying, companies that previously wouldn't have thought of investing with these tribes are interested in learning about Indian law to invest or partner with them," he said.
KNOWING THE CLIENT
Despite the money, the construction deals and high-stakes litigation, an Indian tribe is not just another corporate entity. Firms serving tribes have to deal with the complexities of sovereign nations that have had long and often bitter relationships with the government and its laws.
"There's a lot of things law firms need to do [to work successfully with tribes], and the most effective way to do that is hire Native American attorneys," said Heather Dawn Thompson, a Cheyenne River Sioux and president-elect of the National Native American Bar Association.
The trouble is, there aren't a great number of American Indians at big law firms. Neither Sonnenschein nor Orrick has any in its Indian law practice groups, though the firms say they'd like to recruit them.
"Indian attorneys have historically gone back to work for their tribes. They haven't been so interested in big law firms," said Thompson, a former Patton Boggs attorney. "Unlike any other practice of law, Indian law is really about the preservation of nationhood."
The importance of this issue to tribes plays out in many ways, one of which is a broader sense of what constitutes a conflict. A case involving an entirely unrelated tribe may still offend a client who sees that other case as attacking the basic concept of tribal independence.
"Just because a case doesn't have your tribal client as a party, if it's anti-sovereignty it hurts all tribes," Thompson said, "and law firms must take that into account."
Sovereignty is a matter not only of sensitivity and legal nuance but can be the crux of a dispute.
The California Supreme Court recently ruled in Agua Caliente Band of Cahuilla Indians v. Superior Court (Fair Political Practices Commission), 06 C.D.O.S. 11719, that tribes can be sued for violating state campaign disclosure laws, even though they enjoy sovereign immunity under federal law.
Despite the additional complexities, Jeffry Butler, another co-founder of Sonnenschein's Indian law group, said there are also intangible rewards to helping a tribe navigate the legal system.
"It's easy to help large companies like a lot of law firms do," said Butler, a partner in the firm's San Francisco office. "It's more satisfying to represent a client like Shingle Springs because they were treated poorly -- historically and not so historically."