Indian Law Certificate Program: Building Business in Indian Country

13.25 General AV CLE Credits | WSBA AV CLE Activity ID #410726

Includes all five sessions from the 2015 Indian Law Certificate Program held July 8-10, 2015.


Recorded:  07/08/2015
Credits:  13.25 General AV CLE | WSBA AV CLE Activity ID #410726
Length: 13 hours, 15 minutes

Featured Speakers:
Eric D. Eberhard, Kelly Croman, Steven J.W. Heeley, Betsy Daniels, V. Heather Sibbison, Suzanne R. Schaeffer, Douglas MacCourt

Building Business in Indian Country: A faculty from the Northwest and around the nation will provide in-depth analysis of the Governance of Business Entities-Best Options and Their Consequences; Building in Indian Country: Understanding and Successfully Navigating Construction Contracts; The Art of the Deal in Indian Country: Effective Negotiation, Mediation and Arbitration Options, Skills, Tactics and Strategies; Land Acquisition for Gaming On and Off-Reservation in the Era of Carcieri and Patchak; and, Powering your Business: Developing Constructing and Financing Alternative Energy Projects in Indian Country.


Session 1:  Wednesday, July 8th, 9:00 a.m. - 12:00 p.m.

Governance of Business Entities - Best Options and Their Consequences

Speaker: Kelly Croman Neelands - Tribal Attorney, Chehalis Tribe, WA

This session will take an in depth look at the various options available to tribes for structuring their business entities. It will examine the practical and legal consequences associated with corporations formed under the Indian Reorganization Act and entities organized under tribal and state law, including corporations, partnerships, LLC's and joint ventures. The type of entity a tribe chooses can have significant impacts on tribal communities, tribal governments and the governance and operation of a business as well as imposing limitations on what the entity can and cannot do; its susceptibility to state and federal taxation; the application of the tribe's sovereign immunity; issues related to dispute resolution and the jurisdiction of federal, state and tribal courts over matters involving the business entity; and the entity's eligibility for federal and state procurement contracts.

Session 2: Wednesday, July 8th, 1:30 p.m. - 4:30 p.m.

Building in Indian Country: Understanding and Successfully Navigating Construction Contracts

Speaker: Steven J.W. Heeley - Advisor, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.

This session will examine the issues that arise when a tribe or a tribal business entity negotiates and enters into contracts for the construction of facilities and infrastructure. It will examine best practices with regard to the use of AIA contract forms; the pros and cons of various types of construction contracts; dispute resolution alternatives; choice of law and choice of forum; the use of phased turnovers and liquidated damages and completion bonuses; waivers of sovereign immunity; indemnification; shared contingency, guaranteed maximum price vs. stipulated sum contracts, subcontractor management, the use of consultant agreements for construction related work; retention, use of preconstruction agreements, insurance and bonding, claims procedures, and terms that should be included in Requests for Proposals and Bids

Session 3: Thursday, July 9th, 9:00 a.m. - 12:00 p.m.

The Art of the Deal in Indian Country: Effective Negotiation, Mediation and Arbitration Options, Skills, Tactics and Strategies

Developing and maintaining effective negotiating skills is more important than ever in the practice of Indian law as the volume and complexity of contracts, transactions, and compacts increases and as tribes seek to settle more disputes through alternative dispute resolution (ADR) methods such as negotiation, mediation, or arbitration rather than litigation. This session is intended to assist practitioners in understanding their ADR options and in thinking through which tool best fits a given situation.

Session 4: Thursday, July 9th, 1:30 p.m. - 4:30 p.m.

Land Acquisition for Gaming On and Off-Reservation in the Era of Carcieri and Patchak

Speakers: V. Heather Sibbison, George T. Skibine, Suzanne R. Schaeffer - Dentons, Washington, DC

Part I of Session: Overview of the IRA and Section 20 of IGRA
The Indian Gaming Regulatory Act (IGRA) generally permits gaming activities by Indian tribes on any land located within an Indian reservation and on all off-reservation lands held in trust by the United States or subject to a restriction by the United States against alienation and over which a tribe exercised governmental power on the date of enactment of IGRA, October 17, 1988.

However, Section 20 of the Act generally prohibits gaming on lands acquired in trust for an Indian tribe after October 17, 1988, unless one of several exceptions is applicable. There is an exception for gaming on lands located within or contiguous to the boundaries of the reservation that existed on the date of IGRA's enactment. In addition, gaming activities can occur on "after-acquired" trust lands if:

• The Secretary determines that gaming on newly-acquired trust lands would be in the best interest of the Tribe and its members and would not be detrimental to the surrounding community, but only if the Governor of the state concurs in the Secretary's determination ("two part determination exception"); or
• The lands are taken into trust as part of one of these remedial ("equal footing") exceptions:
  • Land acquired in the settlement of a land claim;
  • Land within the initial reservation of a tribe acknowledged by the Secretary under the federal acknowledgement process; or
  • Land acquired as part of the restoration of lands for an Indian tribe that has been restored to federal recognition.

Part II of Session: The Impact of Carcieri and Patchak
In 2009 the U.S. Supreme Court held in Carcieri v. Salazar, 555 U.S. 379 (2009) that the Secretary lacked authority under the Indian Reorganization Act (IRA) to take land in trust for tribes that were not "under federal jurisdiction" at the time the IRA was enacted in 1934. In 2014, the Department of the Interior responded to the Court's holding with an "M Opinion" which sets out the Department's views on how "under federal jurisdiction" should be defined.

In 2012, the Court decided Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) (also sometimes referred to as the "Gun Lake decision"), and there held that the Quiet Title Act does not bar a challenge brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, to a decision by the Secretary to take land in trust for a tribe. The Department of the Interior responded to the Court's decision in Patchak with an amendment (known as the "Patchak patch") to its regulations implementing the IRA.
Despite the Department's efforts to address these decisions, the Carcieri and Patchak decisions increasingly have been used as weapons in litigation designed to delay or prevent the Secretary from acquiring land in trust for tribes (whether for gaming or any other purpose).

The session will include a discussion of two cases in which challenges have been brought based on Carcieri and/or Patchak arguments, and we will consider the potential impact on future fee-to-trust applications. These cases also involve questions related to how IGRA Section 20 should be applied.

  • Confederated Tribes of Grand Ronde, Clark County, et al. v. Jewell, involves the Cowlitz Tribe in Washington State, whether that Tribe was under federal jurisdiction in 1934 as required under Carcieri, and if so whether the land acquired in trust by the Secretary meets the IGRA Section 20 exception for an initial reservation of a tribe recognized by the Secretary under the federal acknowledgment process.
  • Big Lagoon Rancheria v. State of California, involves the question of whether the Tribe was federally recognized and exercising governmental authority over its reservation lands in 1934.
    Finally, this second session will also consider the case of State of Arizona, et al. v. Tohono O'odham Nation, which involves the application of non-IRA fee-to-trust authority. This case highlights the difference between discretionary trust land acquisitions made pursuant to the IRA, and mandatory land acquisitions made pursuant to specific federal statutory direction. The Tohono O'odham case also highlights the application of the Section 20 exception allowing tribe to use land acquired in the settlement of a land claim for gaming.

Finally, this second session will also consider the case of State of Arizona, et al. v. Tohono O'odham Nation, which involves the application of non-IRA fee-to-trust authority. This case highlights the difference between discretionary trust land acquisitions made pursuant to the IRA, and mandatory land acquisitions made pursuant to specific federal statutory direction. The Tohono O'odham case also highlights the application of the Section 20 exception allowing tribe to use land acquired in the settlement of a land claim for gaming.

Session 5: Friday, July 10th, 9:00 a.m. - 12:00 p.m.

Powering Your Business: Developing, Constructing and Financing Alternative Energy Projects in Indian Country

Speaker: Douglas MacCourt - Ater Wynn, Portland, OR

According to the United States Department of the Interior, the United States government currently holds approximately 56 million acres of land in trust for tribes and individual Indians. Under the Alaska Native Claims Settlement Act (ANSCA), another 44 million acres have been set aside for Alaska Natives. The Bureau of Indian Affairs estimates that while Indian land comprises only five percent of the land area of the United States, it contains an estimated ten percent of all energy resources in the United States.

Renewable energy potential in Indian country is even more significant. The National Renewable Energy Laboratory (NREL) has estimated that there is the potential for about 535 billion kWh/year of wind energy alone available on Indian lands in the contiguous 48 states, which is equivalent to 14 percent of current U.S. total annual energy generation. NREL estimates that there is also 17,600 billion kWh/year of solar energy potential on Indian lands in the lower 48 states; this amount is equivalent to 4.5 times the total U.S. electric generation in 2004. In addition, Indian Country will continue to play a growing role in transmission infrastructure throughout the nation.

In addition to the significant tribal control of land and resources in the U.S. and the national focus on renewable energy, tribal interest in renewable energy projects will also likely be fueled by each tribe's long-term goals relating to sovereignty, sustainability, and financial security. In Indian country the past several decades have seen a renewed focus on tribal self-determination, with tribes asserting more control over their land, resources and self-governance. Renewable energy may support a wide range of tribal economic activities, from tourism and gaming to manufacturing and telecommunications. Many tribes have also begun to experiment with their unique legal status to accelerate their economic development efforts. Energy development is one way tribes are creating the infrastructure and capacity to achieve economic independence.

This session will focus on:

  • a general overview of the renewable energy project development process;
  • a discussion of how to structure a renewable energy project transaction to protect tribal interests, with an emphasis on joint project development efforts undertaken with non-tribal parties;
  • a general overview of key energy development agreements, including power sale agreements, transmission and interconnection agreements, and land leases; and
  • a discussion of ways tribes can finance renewable energy projects, the sources of funding or financing that may be available, the types of investors that may be available, and federal tax incentives for renewable energy projects.


Program Chairperson

Eric D. Eberhard

Co-Faculty Director, Center for Indian Law and Policy and Distinguished Indian Law Practitioner in Residence, Seattle University School of Law

Eric D. Eberhard is a Distinguished Indian Law Practitioner in Residence at the Law School at Seattle University. From 1995 to 2009 he was a partner in the Seattle office of Dorsey and Whitney LLP. He received his B.A. degree from Western Reserve University in 1967; a J.D. degree from the University of Cincinnati in 1970 and an LL.M. from George Washington University in 1972. He has been actively engaged in the practice of Indian Affairs law since 1973, including employment in legal services, private practice and as the Deputy Attorney General of the Navajo Nation and Executive Director of the Navajo Nation Washington Office. His practice has involved all aspects of the representation of Indian tribes, organizations, individuals and entities doing business with Indian tribes in federal, state and tribal judicial, legislative and administrative forums.

From 1989 to 1995 he served as the General Counsel and Staff Director on the Senate Committee on Indian Affairs for Senator John McCain of Arizona. In that capacity he had direct responsibility for legislation relating to the protection of the environment on Indian lands, Indian cultural resources protection, gaming, water rights, self-determination and self-governance, tribal courts and economic development.

In December, 2000, the U. S. Senate confirmed President Clinton's appointment of Mr. Eberhard to the Board of Trustees of the Morris K. Udall Foundation. President Bush nominated Mr. Eberhard for a second term on the Board in 2005 and he was confirmed by the Senate in 2007. From 2001 to 2011 he chaired the Board's Committee on the Native Nations Institute. In 2011, he was elected as Chairman of the Board of Trustees. He also serves as the Vice-Chairman of the Native American Concerns Committee of the American Bar Association's Committee on Individual Rights and Responsibilities and is a Life Fellow of the American Bar Foundation. Mr. Eberhand is an Associate Justice of the Court of Appeals of the Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians in Oregon.

He has been recognized by Best Lawyers in America and Chambers. At Dorsey & Whitney he was recognized as the Partner of the Year, the Diversity Partner of the Year and the Pro Bono Partner of the Year. He has been honored by the United South and Eastern Tribes, Navajo Nation and its courts, the National Indian Gaming Association, the National Association of Indian Legal Services Programs, the Intertribal Timber Council and the American Indian Religious Freedom Coalition for outstanding service and contributions. In 2013 Mr. Eberhard was presented with the Lifetime Achievement Award by the Northwest Indian Bar Association.


Session 1

Kelly Croman, Tribal Attorney for the Chehalis Tribe, Oakville, Washington

Over the past 17 years Kelly has worked in a variety of legal and economic development roles for three tribes in Washington State. Kelly's long and unique experience in Indian law has brought her into contact with many aspects of the issues which arise from the various options available to tribes when they choose a structure for a business entity and make her exceptionally well qualified to discuss the best options for tribes and their attorneys to consider.

Kelly currently serves as the Director of the Office of Tribal Attorney for the Confederated Tribes of the Chehalis Reservation, where she advises the Tribal government and its enterprises on a broad array of legal matters. The Tribe has developed a number of successful enterprises, including the Great Wolf Lodge, Lucky Eagle Casino, Eagles Landing Hotel, Eagle RV Park, End of the Trail convenience stores, Burger Claim restaurant, Confederated Construction Company (a certified 8(a) contractor), and billboard advertising.
Previously, Kelly served as CEO of Island Enterprises, Inc. (IEI), the economic development arm of the Squaxin Island Tribe. IEI's enterprises include Salish Seafoods, the Trading Post family of gas stations and convenience stores, Skookum Creek Tobacco Company, SI Distribution, Skookum Creek Distributing, and the Ta-Qwo-Ma Business Development Center. Prior to joining IEI, Kelly served as General Counsel to Marine View Ventures, Inc. (MVV), a tribally chartered corporation of the Puyallup Tribe of Indians. MVV's holdings include gas station/convenience stores, two marinas, and several hundred acres of commercial and industrial lands in and around the Port of Tacoma.

Prior to joining MVV in 2007, Kelly served as legal counsel for the Squaxin Island Tribe for nearly 10 years, where she focused on governmental affairs, economic development and tribal tax issues, and intertribal negotiations. Kelly led successful efforts to secure authorizing legislation for cigarette tax compacts and fuel tax compacts, the latter after a successful litigation effort, and negotiated the first compacts under each statute.
Kelly currently chairs the board of the National Intertribal Tax Alliance, and is a former chair of the Washington State Bar Association's Indian Law Section. She has B.A. and M.P.A. degrees from The Evergreen State College, and a J.D. from the University of Washington School of Law, where she graduated with honors.

Session 2

Steven J.W. Heeley, Advisor, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.

Steve serves as a consultant to Akin Gump. He advises Indian tribes on corporate, transactional and natural resources matters, as well as on tribal governance and jurisdictional issues. He has served as the deputy general counsel for the Gila River Indian Community for over 10 years. In addition, he served as an adjunct law professor at Arizona State University, teaching seminars on economic development and tribal law and government in Indian Country. He also served as a member of the University's Advisory Committee for the Indian Law Program for over 10 years.

During the 104th Congress, he served as staff director and chief counsel to the Senate Committee on Indian Affairs, which was chaired by Sen. John McCain, R-Ariz. Prior to assuming that role, Steve was counsel to the Subcommittee on Native American Affairs of the Committee on Natural Resources in the U.S. House of Representatives, which was established in 1993. Prior to the creation of this subcommittee, he served as the Deputy Counsel on Indian affairs to the Committee on Interior and Insular Affairs under Chairman George Miller. From 1989 to 1991, he was Deputy Minority Counsel to Sen. McCain on the Senate Select Committee on Indian Affairs and prior to that he was an attorney for the Gila River Indian Community.

During more than three decades of experience in Indian law, Steve has negotiated a lease agreement and the related documents necessary for the development of a 360,000 square foot retail development on tribal trust lands; tax-exempt financing pursuant to an award under the Tribal Economic Development Bond program to finance the construction of a three star hotel and related facilities on tribal trust lands; the development and construction of a three star casino hotel and related facilities; the development and construction of a four star casino hotel on trust lands; the development and construction of a 500 room four star resort hotel and spa; and a number of management and license agreements covering resort hotels, business hotels, golf courses, retail businesses, and themed entertainment venues.

Steve is a Potawatomi Indian and a citizen of the Walpole Island First Nation in Ontario, Canada.

Session 3

Betsy Daniels, Principal and Senior Associate, Triangle Associates, Inc., Seattle WA

Betsy Daniels has 20 years of experience in the design and facilitation of multi-jurisdictional and multi-party processes involving local, state, federal, and tribal governments; scientists; non-governmental organizations; and stakeholders involved in natural resource management and environmental justice (EJ) issues. Betsy has worked with both small organizations and large agencies on goal setting and visioning, strategic planning, collaborative decision-making and conflict resolution. She has worked closely with tribal and non-tribal governments throughout the Northwest to design and implement effective collaboration.

Betsy has a flexible style in which she responds and adapts to the needs of her clients and project participants. She assists groups in finding clear roles and responsibilities, utilizing and translating scientific information, and ensuring that all voices are heard. Betsy provides her clients and project participants with procedural, substantive, and emotional satisfaction within a fair process.

Betsy has published on a variety of topics including tribal/county intergovernmental cooperation, watershed community-building, coastal management, and the selective breeding of fishes. She is the only practitioner on the west coast selected for the national EPA Title VI environmental justice roster. She holds a Master's Degree from the University of Washington's School of Marine Affairs with an emphasis on dispute resolution in multi-jurisdictional settings. Betsy was trained as a mediator at the University of Washington Law School and as a facilitator at the Institute for Cultural Affairs.

Session 4

V. Heather Sibbison, Dentons, Washington, D.C.

Heather serves as chair of the Dentons' Native American Law and Policy practice, which serves clients on matters related to American Indian, Alaska Native, and Native Hawaiian issues. Her practice is primarily focused on all matters related to Indian lands, including trust acquisitions, Indian lands opinions, Carcieri v. Salazar issues, land claim settlement issues, and related compliance with the Indian Gaming Regulatory Act (IGRA) and the Natural Environmental Policy Act (NEPA).

During the administration of President Clinton Heather served in the Office of the Secretary at the Department of the Interior (Special Assistant to the Secretary, Counselor to the Deputy Secretary, and Director of the Secretary's Office of Indian Water Rights), and also at the Department of Justice (Counsel to the Assistant Attorney General for Environment and Natural Resources, focus on work with the Indian Resources Section). During her federal service, her duties included management of issues related to fee-to-trust and Indian gaming, and she was lead federal negotiator in various settlement negotiations involving Indian land claims, Indian water rights and treaty fishing rights.

Heather's long experience with the Indian Reorganization Act, IGRA, NEPA, various land and water rights settlements, and the legal issues that have been spawned by the Supreme Court's decisions in Carcieri and Patchak, enable her to assist clients in developing and implementing workable fee-to-trust and reservation proclamation strategies for tribes needing additional land for gaming, non-gaming economic development, housing or any other use.

Her practice also encompasses extensive representation of tribes in the tribal-state compacting process, the development of inter-governmental services agreements and most matters for which federal administrative approval is required from either the Department of the Interior (Interior) or the National Indian Gaming Commission (NIGC). Heather also has been actively engaged in federal recognition issues. In all of these matters, she has assisted clients to navigate their issues both with the federal agencies and with the United States Congress.

Suzanne R. Schaeffer, Dentons, Washington, DC

Suzanne (Susi) Schaeffer is a member of the Public Policy and Regulation and Native American Law and Policy practices, and concentrates her practice on Indian lands and environmental compliance issues.
Drawing on her years of experience in both the federal government and private sector, Susi advises clients in acquiring land in trust for both gaming and non-gaming purposes pursuant to the fee-to-trust authorities of the US Department of the Interior. She is also well versed in other Indian lands issues, including land claims, reservation proclamations, leasing and rights-of-way over Indian lands, and Section 81 approval requirements. She has extensive experience working with the Department to achieve clients' land acquisition and other lands-related objectives.

Susi has particular expertise in handling environmental compliance issues on Indian lands, and she regularly counsels clients regarding compliance with the National Environmental Policy Act (NEPA) as well as other environmental requirements in conjunction with acquiring land in trust.

Susi also is very familiar with the requirements of the Indian Gaming Regulatory Act and has significant experience working with both the DOI and the National Indian Gaming Commission on gaming matters. This experience serves as a foundation for providing strategic and practical advice to clients regarding tribal gaming ordinances, management contracts, Indian lands issues and other matters related to the development of Indian gaming facilities.

Prior to returning to private practice, Susi served as the Assistant Solicitor for Environment, Land & Minerals in the Office of the Solicitor's Division of Indian Affairs, as well as a trial attorney at the U.S. Department of Justice in the Environment and Natural Resources Division.

Session 5

Doug MacCourt, Ater Wynne, Portland Oregon

Doug MacCourt is a Partner with Ater Wynne LLP in the firm's Portland, Oregon office where he is Chair of the firm's Indian Law Practice Group. For over 25 years, Mr. MacCourt has specialized in Indian law, environmental and energy law and regulation, land use and business law for Native American tribes and Alaska Native corporations, industry and local government. Doug works with tribes and native corporations across the US on all facets of energy production and development including community and utility scale power generation, facility siting including NEPA compliance, transmission facilities and rights of way, oil and gas leasing, mining and mine reclamation, water rights, contracts for power sales, fee to trust, financing and helping tribes create and operate successful energy businesses. Doug practices before local, state and federal administrative agencies, tribal courts, trial and appellate courts. Mr. MacCourt represents clients before state and federal legislative bodies to obtain funding and other approvals for energy development projects.

Doug serves on the Board of Directors for the National Association of Local Government Environmental Professionals (NALGEP) and the Northwest Environmental Business Council (NEBC). He is a member of the Executive Committee and past Chair of the Oregon State Bar Indian Law Section. Mr. MacCourt's publication for the US Department of Energy and the National Renewable Energy Laboratory, Renewable Energy Development in Indian Country: A Handbook for Tribes has received national acclaim. Doug is listed in Chambers USA: America's Leading Lawyers for Business, Best Lawyers in America for Native American and Natural Resources law, and is a Top Rated Lawyer in Land Use and Zoning by American Lawyer Media and Martindale-HubbellTM.


5 Session Certificate Program

General Registration (in-person attendance) - $400.00

SU School of Law Alumni/Tribal Attorneys (in-person attendance) - $325.00