Lippes Mathias' Indian Law Practice Team provides legal and strategic advice to American Indian Tribal governments, Tribal courts, and other entities committed to advancing Tribal sovereignty, self-determination, economic development, and energy security in Indian Country. To assist with accomplishing our clients’ legal, political, and business goals, our attorneys work with Tribal clients to design effective legal strategies and assert Tribal rights in the areas outlined below.
Advisement of Tribal Courts
Our Indian Law Practice Team assists Tribal judges in strengthening their court systems in a variety of ways:
Our Indian Law Practice Team assists Tribal judges in strengthening their court systems in a variety of ways:
- Drafting and providing advice on judicial codes and procedural rules;
- Training new and experienced tribal judges and court personnel on legal case management, ethics, and best practices; and
- Advising Tribal courts on substantive issues that arise in litigation before them.
Challenges to Federal & State Actions
- Represent Tribes’ challenges to adverse federal agency decisions;
- Represent Tribes in defense of positive federal agency decisions;
- Contest, on behalf of Tribes, illegal state taxation, regulation, and exercise of jurisdiction;
- Defend Tribal interests in environmental matters and federal trust responsibility breaches; and
- Represent Tribes in administrative appeals against BIA, IHS, and other federal agencies.
Employment
We advise our clients on employment issues, including the following:
- Tribal preference policies and compliance under TERO ordinances;
- Personnel policies balancing tribal sovereignty with federal employment laws (FLSA, FMLA, ADA);
- Gaming operation employment regulations under IGRA and NIGC requirements;
- Tribal government handbooks and procedures incorporating cultural values; and
- Employment dispute resolution systems utilizing Tribal courts and traditional practices.
Health Care in Indian Country
We regularly advise our Tribal clients on issues related to Health Care in Indian Country. Some areas of recent advice include:
- Development of Tribal health codes;
- Establishment and operation of Tribal health systems;
- Negotiation of IHS contracts and funding agreements;
- Recovery of pre-award and start-up costs related to standing up Tribal health systems;
- Contract Support Cost Recovery under regular circumstances and in light of the Supreme Court decision in Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe;
- Revenue cycle management;
- ISDEAA Section 105(l) Leasing from proposal to execution;
- Lobbying federal agencies and the United States Congress to obtain recurring New Tribes Funding for Tribes who have traditionally been unlawfully excluded from participation in Indian Health Service programs; and
- Third-party revenue generation and compliance under ISDEAA and the Indian Health Care Improvement Act.
Indian Child Welfare Act Issues
- Experience representing Tribes in ICWA placement and adoption proceedings across jurisdictions;
- Enforce Tribal intervention rights and placement preferences in state courts;
- Review and advise Tribal-state ICWA agreements; and
- Handle appeals of ICWA determinations and placement decisions.
Indian Gaming
We advise our clients on Tribal governmental gaming and commercial gaming issues, including the following:
- Financing for casinos and obtaining declination letters from the NIGC;
- Placing land in trust for gaming purposes or obtaining reservation declarations;
- Negotiating gaming compacts with states;
- Investigations for regulatory compliance;
- Commercial transactions related to gaming; and
- Obtaining licenses and permits.
Indian Land Issues
- Prepare fee-to-trust applications for tribes, leasing, and development projects.
- Address fee-to-trust environmental compliance.
- Manage rights-of-way negotiations and prosecute trespass issues.
- Navigate tribal land and allotment matters.
- Address jurisdictional challenges and land use regulations.
Regulatory Issues
- Assist Tribes with federal and Tribal regulatory compliance across BIA, NIGC, and DOI.
- Advise Tribes regarding Indian Gaming Regulatory Act compliance, Tribal enterprise licensing, and land-into-trust approvals.
- Assist Tribes with environmental and cultural resource protection assessments under NEPA, NHPA, and other federal laws.
- Advise Tribes regarding Tribal economic development regulations, including business entity formation and tribal commercial codes.
- Advise Tribal entities regarding energy project development and compliance, including TERA agreements and gaining federal approvals.
Representation of Tribal Interests in Tribal, State, and Federal Courts & Arbitrations
- Our Indian Law Practice Team handles a wide variety of litigation matters for Tribal governments, including representing Tribal interests in all courts, including federal, state, and Tribal courts, before arbitration tribunals and administrative agencies.
- Substantive issues include treaty rights, ICWA litigation, Indian gaming, sovereignty, land claims, water rights, law enforcement issues, and taxation.
Our attorneys understand that protecting Tribal interests often requires bringing and defending litigation in the courts. Our litigation experience spans state, federal, and Tribal courts, as well as arbitrations and appeals through administrative forums. It has involved:
- state and federal taxation,
- treaty rights,
- Tribal civil and criminal jurisdiction,
- the Nonintercourse Act,
- the Indian Child Welfare Act,
- the Montana doctrine,
- IGRA,
- gaming compacts,
- land claims and water rights,
- sovereign immunity,
- Tribally-owned businesses,
- Insurance,
- law enforcement issues,
- property rights,
- self-determination contracting and self-governance compacting under ISDEAA,
- constitutional claims,
- tort claims, and
- contract claims.
Our significant accomplishments include:
- Winning a major victory in the Second Circuit on behalf of the Seneca Nation in long-term litigation brought by anti-sovereignty groups against the Buffalo Creek casino.
- Negotiating the placement of two Indian children into Tribal foster care and the transfer of their case from Illinois to Tribal court in a heart-rending case under the Indian Child Welfare Act.
- Successfully arbitrating a gaming compact dispute with the state of New York, saving multi-millions of dollars for our client.
- Filing amicus briefs in state and federal courts to assert our clients’ interests in areas involving state taxation, sovereignty, and economic development.
- Representing an Oklahoma Tribal Council regarding IGRA, land claim litigation, and other governmental matters.
- Defending Tribal subsidiaries in lawsuits implicating Tribal sovereign immunity.
- Advising an Indian Tribe within the state of New York regarding the acquisition of trust land, which survived judicial scrutiny.
- Challenging local interference with tribal jurisdiction over on-reservation businesses licensed by the tribe.
- Winning a major victory in the D.C. Court of Appeals on Tribal funding under the CARES Act using Tribal enrollment rates from the census date.
- Winning a victory in federal court protecting a Tribal sacred site from development.
Given this breadth and depth of skillsets, our Indian Law Team is uniquely positioned to provide superior service and expertise to our clients. Our team includes:
- A former United States magistrate judge who has authored significant opinions in the areas of sovereign immunity and land claims.
- A former counselor to the Secretary of the Department of the Interior, who was involved in major policy decisions made by the Secretary.
- A former New York State Attorney General.
- A former attorney-advisor in the Office of the Solicitor, Department of the Interior’s Division of Indian Affairs, and enrolled Tribal member who concentrates his practice on federal Indian law, and who also served for three years as in-house self-governance general counsel for one of the largest Tribal governments in the United States.
- An attorney with more than 15 years of experience counseling Indian Tribes on environmental, energy, and cultural resources issues.
- A former Department of Energy senior advisor who led the implementation of a credit program for Tribes to invest in energy across the United States.
- An attorney who has represented Tribes and Tribal business entities for two decades in Tribal, state, and federal courts and in negotiations with state and federal governments.
- A former Senate staffer who advised on issues before the Senate Committee on Indian Affairs and the Senate Committee on the Judiciary.
Tribal Economic Development Initiatives & Transactions
Our attorneys have transactional experience that includes the formation of Tribal chartered entities; gaming compacts; obtaining regulatory approvals from the Department of the Interior, the National Indian Gaming Commission, and others; commercial development; hotels on and off reservations; real estate and financing; health care; employment; corporate/private equity matters, including sovereign wealth funds; and drafting Tribal regulations, including for cannabis initiatives. Our significant accomplishments include:
- Negotiating a $90 million loan transaction on behalf of an Indian nation to provide funding for a casino and resort expansion project.
- Providing the legal basis supporting the creation of a Tribally-owned health care system.
- Obtaining declination letters from the National Indian Gaming Commission on behalf of Tribal clients and parties involved in refinancing for multiple projects.
- Securing trust land decisions for economic development and self-determination.
- Gaining Secretarial approval of HEARTH Act regulations for multiple Tribes.
- Advising a Tribal client on innovative health care initiatives.
- Advising Tribal clients on drafting cannabis-related regulations.
- Assisting Tribal clients with entity formation of cannabis retail dispensary businesses.
- Obtaining financing for Tribal gaming enterprises.
- Negotiating state-Tribal compacts on various matters.
- Negotiating facility leases with the Indian Health Service, Bureau of Indian Affairs, and Bureau of Indian Education under Section 105(l) of ISDEAA, resulting in multi-million-dollar annual recurring lease payments to Tribal clients.
- Negotiating non-traditional financing for $5 million and $50 million casino developments in Oklahoma.
Representation of Tribes Before Federal Agencies and Congress
Our attorneys engage on behalf of our Tribal clients before the Department of the Interior, including the Bureau of Indian Affairs, the Bureau of Reclamation, the National Park Service, the Fish and Wildlife Service, the Interior Board of Indian Appeals, and the National Indian Gaming Commission. Our attorneys defend final Secretarial determinations to acquire trust land on behalf of Indian Tribes and advise Tribal clients regarding federal government actions. We understand the interplay of cross-jurisdictional roles that various components of the Administration play in decision-making and the importance of building a comprehensive administrative record to support final agency decisions that may be challenged in the courts.
Our Indian Law Practice Team also represents Tribal interests before the Indian Health Service (IHS) on issues related to program funding, including start-up, pre-award, and transfer of funding to Tribal governments under ISDEAA and the Indian Health Care Improvement Act, and in lobbying efforts to secure appropriations to fund Tribal participation in IHS programs.
Our attorneys engage with the Department of Energy on a range of matters, including energy security, energy development, energy investment, and energy management.
Congress is often required to pass legislation to address issues of central importance to the welfare of Tribal communities. Our attorneys engage with the appropriate members of Congress to introduce and advance legislation. We work closely with members’ offices and relevant committee staff to ensure that they are educated regarding the importance of the legislation and the need for consideration through the hearing process. Also, we work closely with Congressional leadership to maximize the opportunity for legislation to become law.
Section 105(I) Leasing
Our team assists Tribes and Tribal Organizations with participation in the ISDEAA Section 105(l) facility leasing program to increase federal resources for facilities used in the administration and support of ISDEAA contracts and compacts with the Indian Health Service, Department of the Interior, and the Department of Transportation. We assist our clients in structuring these lease agreements in a manner that maximizes recovery of resources and often results in the generation of critical unrestricted rental income, which the client can then use to meet other priorities.
Tribal Self-determination and Self-governance Under ISDEAA
We advise our clients on all issues related to Self-Determination and Self-Governance under the Indian Self-Determination and Education Assistance Act, as amended (ISDEAA). Our efforts include:
- Preparation of Proposals for and Negotiation of Self-Determination Contracts and Self-Governance Compacts and associated funding agreements with the Department of Interior, Department of Transportation, and the Indian Health Service;
- Negotiation and execution of ISDEAA Section 105(l) Facility Lease Agreements to secure substantial funding increases and new streams of revenue for Tribal Governments and Tribal Organizations;
- Dispute Resolution through informal conference, administrative appeals bodies, and the federal courts;
- Analysis of existing contracts, compacts, and funding agreements to determine whether the Tribe is entitled to additional resources or assumption of additional programs, functions, services, or activities, and whether resources may be legally reallocated to best meet the client’s priorities.
Sovereignty & Sovereign Immunity
We assist in enforcing the sovereignty rights of our clients in a broad variety of areas:
- Sovereign immunity protection strategies, including limited waivers for commercial transactions and careful entity structuring.
- Jurisdictional challenges and defense against state encroachment on tribal sovereignty.
- Tribal court development and jurisdiction enhancement, emphasizing sovereign judicial authority.
- Intergovernmental relations and agreements preserving sovereign status and immunities.
Taxation
- Navigate tribal-state tax agreements and challenge dual taxation.
- Structure tribal enterprises to optimize tax benefits and sovereign immunity.
- Advise on federal tax exemptions and tribal government tax status.
- Handle tribal employment tax matters and IRS compliance requirements.
- Develop tribal tax codes and revenue-sharing agreements.
Treaty Rights
Treaty rights touch many of our activities on behalf of our clients, including the following:
- Treaty rights protection and enforcement across hunting, fishing, water rights, and natural resource access of ancestral lands;
- Sacred site protection and religious freedom advocacy under historical treaties and federal law; and
- Treaty-based jurisdictional disputes with state and federal authorities, including taxation, regulatory authority, and reservation boundaries.
Tribal Environment & Energy
Our attorneys have extensive experience representing and advising Tribes on virtually every major federal environmental law that affects Tribes, trust lands, and Tribal economic development projects, including the National Environmental Policy Act (NEPA), the Clean Water Act, the Clean Air Act, the Endangered Species Act, and the National Historic Preservation Act. Specifically, our practice includes:
- Advising on the environmental aspects of land-to-trust conveyances;
- Leasing of Indian lands under the HEARTH Act, including drafting and securing Department of Interior approvals of Tribal HEARTH Act regulations;
- Development of gaming, energy, infrastructure, transportation, flood control, and other economic development projects on Indian lands;
- Completing federal and Tribal environmental review requirements; and
- Securing necessary federal environmental permits and approvals.
In addition, we have significant experience working with federal agencies (including the Advisory Council on Historic Preservation), state historic preservation officers and Tribal historic preservation officers to ensure that projects undertaken on or off Tribal lands protect our clients’ historic and cultural resources to the maximum extent possible under federal and state laws.
Our attorneys are regularly recognized in publications such as Chambers USA, The Best Lawyers in America©, and Upstate New York Super Lawyers®.
FOCUS AREAS
- Advisement of Tribal Courts
- Challenges to Federal & State Actions
- Contract Issues Including Gaming Compacts
- Employment
- Health Care in Indian Country
- Indian Child Welfare Act Issues
- Indian Gaming
- Indian Land Issues
- Regulatory Issues
- Representation of Tribal Interests in Tribal, State, and Federal Courts & Arbitrations
- Representation of Tribes Before Federal Agencies and Congress
- Section 105(I) Leasing
- Sovereignty & Sovereign Immunity
- Taxation
- Treaty Rights
- Tribal Economic Development Initiatives & Transactions
- Tribal Environment & Energy
- Tribal Self-determination and Self-governance Under ISDEAA
Team Leaders
Team
Partner | Team Leader - Municipal Law | Team Co-Leader - Lobbying & Public Policy
Partner | Team Co-Leader - Indian Law | Team Leader- Alternative Dispute Resolution
Partner | Team Co-Leader - Corporate | Team Leader - Mergers & Acquisitions
Partner | Office Leader, Washington, D.C. | Team Co-Leader - Indian Law | Team Co-Leader – Government & Corporate Investigations | Team Co-Leader - Lobbying & Public Policy
Partner | Executive Committee | Team Co-Leader - Government & Corporate Investigations
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