Our Practice

Jurisdiction and Tribal Sovereignty

Our firm has extensive experience in defending tribal sovereignty and jurisdiction from encroachment by states and others.  Our work in this area includes litigation, inter-governmental agreements, assistance to tribes in building tribal institutions, and advocacy before Congress.

Litigation:  We have successfully defeated state efforts to tax activities occurring within Indian country.  For example, our firm served as lead counsel in Coeur d’Alene Tribe of Idaho v. Hammond, 384 F.3d 674 (9th Cir. 2004), where the Court of Appeals rejected the State of Idaho’s effort to collect state excise taxes on gasoline sold on the Shoshone-Bannock Reservation. We then successfully resisted the State’s efforts to obtain Supreme Court review of that favorable decision. 543 U.S. 1187 (2005) (denying State’s petition for certiorari).  We also successfully opposed state efforts to tax motor vehicle purchases by Indians on their reservation in Standing Rock Sioux Tribe v. Janklow, 103 F.Supp.2d 1146 (D.S.D. 2000), and we won a similar case for the Fort Peck Tribes. 

In addition to tax issues, we have successfully represented tribes in preventing state courts and state officials, including those having PL 280 jurisdiction, from asserting jurisdiction over disputes that arise in Indian country or where the assertion of state jurisdiction would undermine tribal rights and interests.  For example, we secured a ruling in the Alaska Supreme Court that state courts lacked jurisdiction over a tribal election matter. Healy Lake Village v. Mt. McKinley Bank, 322 P.3d 866 (Ak. 2014).  In another case, we enjoined state courts from interfering with tribal court jurisdiction over an intra-tribal dispute.  Bowen v. Doyle, 880 F. Supp. 99 (W.D.N.Y. 1995), aff'd, 230 F.3d 525 (2d Cir. 2000). 

We have also successfully represented tribes in protecting their sovereign authority to enforce tribal law.  This has included successful tribal efforts to obtain “treatment as a state” (“TAS”) to regulate water and air quality under federal environmental laws, and defending that authority from legal challenge by states.  Michigan v. EPA, 581 F.3d 524 (7th Cir. 2009) (finding that Michigan lacked standing to challenge EPA’s action in favor of the Tribe); State of Montana v. E.P.A. 137 F.3d 1135 (9th Cir. 1998) (upholding tribal authority to enforce tribal clean water standards).  In Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Reservation, 323 F.3d 767 (9th Cir. 2003), we defended a tribal tax on a utility, and the matter was ultimately resolved by a settlement agreement.  We have also secured court decisions upholding tribal authority to prosecute felony crimes covered by the Major Crimes Act in tribal court, as was done in Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995).Our work also regularly involves representation of tribes to protect tribal jurisdiction over proceedings involving adoption or foster care placement of Indian children, as provided by the federal Indian Child Welfare Act.

An important aspect of protecting tribal sovereignty has been to defend tribal sovereign immunity from suit - a right held by all sovereign governments and which serves vital public interests, by protecting government treasuries and resources from suits to which the sovereign has not consented. We have successfully represented tribes in numerous judicial proceedings to protect the tribe's sovereign immunity.  Two examples of many such cases include: City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 843 N.W.2d 577 (Minn. 2014) (agreement between City and Band did not waive immunity for action in state court) and McRary v. Ivanof Bay Village, 265 P.3d 337 (Alaska 2011) (holding Tribe is immune from suit and reaffirming prior ruling that Alaska tribes are sovereign in action arising under contract).

Inter-governmental agreements.  Tribal sovereign authority can be recognized and given effect in a variety of ways, including through inter-government agreements. Where our tribal clients have exercised their sovereignty in this way, we have assisted in negotiating such agreements with federal, state and local governments. These have included, for example, tribal-state gaming compacts, inter-government agreements on taxation, extradition procedures, and cross-deputization, as well as cooperative agreements with local governments to cover municipal services.

Strengthening tribal institutions.  Another important aspect of tribal sovereignty has been the development of tribal courts and tribal forums with authority to adjudicate disputes that arise on the tribe's reservation pursuant to tribal law. The development of tribal courts is best served by requiring that disputes arising on a tribe's reservation be adjudicated, in the first instance, in the tribal courts. Our practice regularly involves representation of tribes and tribal interests in ensuring that this “tribal exhaustion” doctrine – as articulated by the United States Supreme Court in Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) and Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) – is followed and that federal and state courts defer to the tribal courts for matters that arise on a tribe's reservation.

Advocacy in Congress.  Our work in defending tribal sovereignty has also included advocacy before Congress. We played an active role in advocating for the provisions of the 2013 Violence Against Women Act which recognize tribal criminal jurisdiction over both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country, as well as the 2014 amendment to VAWA which confirm the same authority for Alaska Native Villages. In our work before Congress, we actively work for amendments to federal laws to ensure that tribes' status as sovereigns is recognized and given effect. Our work on tribal sovereignty before Congress is part of a long-standing tradition of our firm, whose founding partner took the lead in obtaining legislation to require tribal consent before a state could assume civil or criminal jurisdiction over Indians within a tribe's reservation.