Supreme Court Litigation
In addition to being experienced at representation of Indian interests in their day-to-day activities, members of the firm are experienced litigators. Members of the firm have handled several important cases before the United States Supreme Court, including the following:
(1) Washington v. Fishing Vessel Assn. (the Boldt decision). After ten years of litigation the Supreme Court held that a number of Washington tribes were entitled to 50% of all harvestable fish outside the reservation and that they could exercise tribal sovereignty in regulating that fishing. The case is of great economic benefit to the tribes and is important as a recognition of their sovereignty and governmental powers.
(2) Washington v. Antoine. This case established that a Colville tribal agreement with the United States in 1891 reserving hunting and fishing rights on ceded land is still valid and the supreme law of the land. The state was denied regulatory authority over tribal hunting and fishing. The tribe's right to regulate was upheld. This is also an important decision for tribal sovereignty and self-government.
(3) Tonasket v. Washington. The Supreme Court vacated a Washington State Supreme Court decision which had allowed the State to tax cigarette sales on the Colville Reservation. By so doing, the Court opened the way for continued tax-free cigarette sales which served as important profit-making and tax sources to the tribes until Colville, Lummi and Makah Tribes v. Washington (see below) in 1980.
(4) Colville, Lummi and Makah Tribes v. Washington. This suit involved state taxation of cigarette sales on-reservation. The Supreme Court reversed a decision of a three-judge federal court that a comprehensive tribal taxation program may preempt the imposition of state taxes, even as to sales to non-Indians. This decision allows state taxation of cigarettes sales to non-Indians and culminated ten years of litigation in which the tribes, up to the Supreme Court level, had been successful. However, the Supreme Court confirmed that, as an incident of sovereignty, tribes have power to tax non-Indians on the reservation, that the State could not impose motor vehicle excise taxes on Indian-owned vehicles used on the reservation, and that tribal taxes could preempt state taxes in certain circumstances.
(5) Arizona v. California. The Supreme Court held that tribal water rights were not lost in settlement of land claim for portion of Tribe's reservation, rejecting the Special Master's recommendation.
Attorneys in the firm have been involved with Indian gaming issues since the early 1980's. MSJS attorneys were actively involved in negotiations with Congress on Indian gaming issues months before the Indian Gaming Regulatory Act was first introduced. On behalf of our Indian clients, we continued to lobby Congress throughout the debate on the bill.
Since 1988 the firm has represented a number of tribes in their efforts to develop Class II and Class III gaming establishments. Our work has encompassed all aspects of the issue. We have negotiated equipment and management contracts, development and loan agreements drafted tribal gaming ordinances and implementing regulations, developed personnel policies and procedures specifically for gaming, worked with tribal auditors to ensure compliance with IGRA, developed economic impact studies for use in lobbying at the federal and state level, and assisted with fee to trust acquisitions for both Class II and Class III gaming enterprises. We have been active in Class III compact negotiations in Arizona, California, North Dakota, Kansas, and Michigan. We have been retained to provide the full range of gaming legal assistance for tribes in Arizona, California, Michigan, Oklahoma, Kansas and Massachusetts, including gaming compacts, gaming development, gaming management, and gaming regulation.. Because of the diverse nature of Indian gaming enterprises and tribal initiatives, our experience has given us broad knowledge of the field and a great deal of actual experience in tailoring gaming documents and agreements to meet specific needs and concerns of client tribes.
Our office played a significant role in the development of the Indian Gaming Regulatory Act and its ultimate passage and in congressional oversight and related hearings dealing with Indian gaming and the Indian Gaming Regulatory Act.
Indian & Native Preference
Our attorneys have developed expertise in the important area of Indian and Native preference in obtaining governmental and other contracts, subcontracts, and employment opportunities. We have assisted clients in gaining SBA minority small business classifications and in benefitting from the preferences available under the Indian Self-Determination Act and other federal and state legislation. In addition, we have assisted in implementation of client employment preference ordinances and regulations and gaining preferences in local private business projects.
Legislative and Administrative Representation
Attorneys in the firm have an active practice representing tribes, Native corporations, and Indian businesses and organizations on a wide range of issues before legislative and administrative bodies of both federal and state governments. Each year members of the firm are called upon to develop appropriations and other legislative strategy and testimony for numerous clients. Members of the firm have a working relationship with senators and congressmen, congressional committees, and staff that are involved with Indian issues. Administrative work with the Bureau of Indian Affairs and other federal agencies proceeds throughout the year.
Business, Corporate, Commercial, & Economic Development
All aspects of large-scale construction projects;
Negotiating opportunities for Indian-owned businesses;
Housing projects involving grants and loans from the Department of Housing and Urban Development and numerous contractual and real estate documents;
Federal Communications Commission licensing and joint ventures for reservation telecommunications systems, including cellular and Persona Communication Service (PCS) enterprises;
Contracts with the United States Department of Defense;
Tribally owned self-insurance entities;
Tribal fishing fleet program involving SBA loans, financing and contracts to build a fleet of modern fishing vessels;
Joint ventures for the processing and marketing of fish and fish products;
Tribal timber contracts, sawmills and related enterprises;
Tribal construction enterprises;
Tribal forestry enterprises.
Attorneys in the firm are experienced at representing Indian businesses. Business, corporate, commercial and economic representation involves negotiations, consultations and appearances on behalf of clients with state, local and federal governmental agencies, international organizations and private developers, industrialists and financiers. In addition to being familiar with the specialized aspects of representing Indian businesses, members of the firm are also familiar with the full array of corporate legal work necessary to service business corporations, including drafting commercial and business documents and contracts, including joint venture agreements, contracts for services or consulting (including architects' and engineers' contracts), interim financing documents, leases and related documents, and grant and aid applications. Members of the firm have developed a number of programs to address the concerns of Indian businesses, including:
Attorneys in the firm are extensively involved in representing many Indian tribes and Native organizations in other important litigation in federal, state and tribal courts and before administrative bodies. This litigation involves issues of great importance to Tribes and Native organizations and includes issues focused on Indian gaming, sovereign immunity, reservation status, taxation, Federal income tax, 638 contracting, enrollment, Indian Civil Rights Act, State versus Tribal jurisdiction, natural resources including land, water, timber and minerals matters, environmental issues, Tribal employment and contracting rights, and Tribal and Native government.
Development of Tribal Government
Indian tribes are sovereign governments within their reservations, and other Indian organizations play major governmental roles. Members of the firm provide a wide range of consulting and legal services of a governmental and municipal nature. These services include developing and drafting tribal constitutions, codes and ordinances, and contract work for governmental and municipal purposes such as law and order, environmental protection and control, reservation-wide utility construction, housing project construction, self-governance compacts, assistance to tribal courts, and similar services.
Attorneys in the firm have participated as legal advisor and consultant to tribal public works projects, including HUD financed housing projects, public docks, community centers and museums. In addition, members of the firm have served as legal advisors and consultants for various commercial development projects, such as timber land development and improvement, construction enterprises, telecommunications and other tribal economic development initiatives.
In the area of Indian and Native employment preference, members of the firm have successfully fought for the recognition of tribal employment rights ordinances and offices by industry and labor in projects on and near reservations. In particular, members of the firm have assisted tribes and Native organizations in developing their positions as local governments and in preparing them to perform governmental services so as to preempt state jurisdiction.
Protection, Development, and Marketing of Natural Resources
Attorneys in the firm provide the full range of legal services required in preserving, developing, and marketing tribal land rights, water rights, timber rights, mineral rights, and commercial fishing rights. In this regard members of the firm have assisted tribes and Native organizations in developing codes for the protection of natural resources, including land use codes, water use codes, environmental protection codes, and related regulations and policies.
Much of the firm's work involves marketing of natural resources, including the development of tribal enterprises, joint venture agreements, and related commercial regulation codes and procedures. This work includes consultation and litigation involving jurisdiction over land, water, and other natural resources and the control, use, and commercial development thereof.
An important part of the development and protection of natural resources and tribal government is code drafting. Members of the firm have substantial experience in this field. Firm members' knowledge of the laws and codes of a large number of jurisdictions allows them to craft specific codes for each client, utilizing the best provisions from a wide variety of sources.
In recent years, members of the firm have developed a number of tribal codes governing business activities, such as tribal commercial codes (based on the Uniform Commercial Code), business licensing codes, business manuals. Members of the firm have also developed tribal codes for tribal employment rights, taxation, tax codes, utilities regulation, zoning and land use regulation, water use, law and order, and tribal court procedure.