Government Law and Indian Law

370 Pages·2012·15.55 MB·English

Government Law and Indian
Law: Critical Issues and
Recent Developments
Cosponsored by the Government Law Section
and the Indian Law Section
Friday, October 19, 2012
8:30 a.m.–5 p.m.
Oregon State Bar Center
Tigard, Oregon
6.25 General CLE or Access to Justice
credits and 1 Ethics credit,
plus .5 General CLE or Access to Justice for
optional lunch presentation
GOvERnmEnT LAw AnD InDIAn LAw: CRITICAL ISSuES AnD RECEnT DEvELOpmEnTS
SECTIOn pLAnnERS
David n. Eder, Beaverton City Attorney’s Office, Beaverton
virginia L. Gustafson, Attorney at Law, Corvallis
Sarah E. Hanson, Columbia County Counsel Office, St. Helens
Diane Henkels, Attorney at Law, Portland
John R. Huttl, City Attorney’s Office, Medford
Brent Leonhard, Confederated Tribes of Umatilla, Pendleton
Lauren J. Lester, Karnopp Peterson LLP, Bend
Douglas C. macCourt, Ater Wynne LLP, Portland
Kimberly A. medford, Entek International, Lebanon
David D. Shaw, Shaw Law Group, Portland
Stephanie Striffler, Department of Justice, Attorney General’s Office, Salem
Douglas L. Tookey, Office of the Legislative Counsel, Salem
Heather A. vogelsong, Department of Justice, Government Services, Salem
OREGOn STATE BAR GOvERnmEnT OREGOn STATE BAR InDIAn LAw
LAw SECTIOn EXECuTIvE COmmITTEE SECTIOn EXECuTIvE COmmITTEE
Sarah E. Hanson, Chair M. Brent Leonhard, Chair
William K. Kabeiseman, Chair-Elect Stephen P. Kelly, Chair-Elect
Lisa M. Umscheid, Past Chair David D. Shaw, Past Chair
Kathryn A. Short, Treasurer Michael J. Grieser, Treasurer
Alan Andrew Rappleyea, Secretary Jennifer Biesack, Secretary
Alison Kean Campbell Jennifer A. Amiott
Laurie E. Craghead Craig J. Dorsay
David N. Eder Lauren J. Lester
Virginia L. Gustafson Douglas C. MacCourt
Stephanie M. Harper Melissa Masat Robertson
John Robert Huttl Starla K. Roels
Kimberly Anne Medford John M. Schultz
Diana L. Moffat Lee Kevin Shannon
Terence L. Thatcher Stephanie Striffler
Heather A. Vogelsong Carl V. Ullman
Benjamin Walters
The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither
the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials
and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification
of these materials.
Copyright © 2012
OREGON STATE BAR
16037 SW Upper Boones Ferry Road
P.O. Box 231935
Tigard, OR 97281-1935
Government Law and Indian Law: Critical Issues and Recent Developments ii
TABLE OF COnTEnTS
Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
1A. Relationship of State Agencies with Indian Tribes . . . . . . . . . . . . . . . . . . . . . . 1A–i
— Karen Quigley, Oregon Legislative Commission on Indian Services, Salem, Oregon
1B. Tribal Agreements—presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B–i
— Stephanie Striffler, Native American Affairs Coordinator, Oregon Department of Justice,
Salem, Oregon
2A. Land use Attributes of Development on Tribal Trust Land—presentation Slides. . . . . 2A–i
— Ellen H. Grover, Karnopp Petersen LLP, Bend, Oregon
2B. Tribal Land use and Economic Development—presentation Slides. . . . . . . . . . . . . 2B–i
— Douglas C. macCourt, Ater Wynne LLP, Portland, Oregon
3A. Fee to Trust process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A–i
— mary Anne Kenworthy, Office of the Solicitor, U.S. Department of the Interior, Portland,
Oregon
3B. Restoration and Fee-to-Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B–i
— Jennifer Biesack, The Confederated Tribes of the Grand Ronde Community of Oregon,
Grand Ronde, Oregon
4A. Statutory Authority of Tribal Officers to Enforce State Law, as Oregon “peace Officers”
or “police Officers” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4A–i
— Janet A. Klapstein, Department of Justice Appellate Division, Salem, Oregon
4B. Summary of Senate Bill 412 (Oregon Laws 2011, Chapter 644) . . . . . . . . . . . . . . . . 4B–i
— Lauren J. Lester, Karnopp Petersen LLP, Bend, Oregon
4C. Tribal Law and Order Act and public Law 280 . . . . . . . . . . . . . . . . . . . . . . . . . 4C–i
— Tim Simmons, United States Attorney’s Office, Eugene, Oregon
5A. Oregon State Cultural Resource Laws and the Role of the SHpO—presentation
Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–i
— Dennis Griffin, State Archaeologist for the Oregon State Historic Preservation Office,
Oregon Heritage, Oregon Parks & Recreation Department, Salem, Oregon
5B. Off-Reservation Treaty Reserved Fishing and Hunting Rights—presentation Slides . . 5B–i
— Brent H. Hall, Confederated Tribes of the Umatilla Indian Reservation, Office of Legal
Counsel, Pendleton, Oregon
5C. Off-Reservation Rights: natural and Cultural Resources—presentation Slides. . . . . . 5C–i
— Robert A. Brunoe, General Manager, Branch of Natural Resources, Confederated Tribes of
the Warm Springs Reservation of Oregon, Warm Springs, Oregon
Government Law and Indian Law: Critical Issues and Recent Developments iii
TABLE OF COnTEnTS (Continued)
6A. Ethics: who Is Your Client? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6A–i
— peter R. Jarvis, Hinshaw & Culbertson LLP, Portland, Oregon
6B. Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6B–i
— peter Shepherd, Harrang Long Gary Rudnick PC, Salem, Oregon
Government Law and Indian Law: Critical Issues and Recent Developments iv
SCHEDuLE
8:00 Registration
8:30 Indian Law 101: what Every Lawyer Should Know About Indian Law and Indian Tribes
F Tribal-state government-to-government process
F Structures of Oregon tribes and multi-tribal organizations
F Federal consultation and today’s political process
F Trust and treaty training
F Intergovernmental agreements and sovereign immunity
Karen Quigley, Oregon Legislative Commission on Indian Services, Salem
Roy Sampsel, Choctaw, Executive Director, Institute for Tribal Government, Portland State University,
Portland
Stephanie Striffler, Native American Affairs Coordinator, Oregon Department of Justice, Salem
9:30 Tribal Land use and Economic Development
Ellen H. Grover, Karnopp Petersen LLP, Bend
Douglas C. macCourt, Ater Wynne LLP, Portland
wayne Shammel, Cow Creek Band of Umpqua Indians, Roseburg
10:30 Break
10:45 Trust Lands process: From Fee to Trust
Jennifer Biesack, The Confederated Tribes of the Grand Ronde Community of Oregon, Grand Ronde
mary Anne Kenworthy, Office of the Solicitor, U.S. Department of the Interior, Portland
noon Lunch: “Tribal Economic Development and Relationships with Local Communities”
Bob Garcia, Tribal Council Chair, Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians,
Coos Bay
1:15 Criminal Jurisdiction and Law Enforcement Issues: The Changing Interaction of Federal,
State, Local, and Tribal Law Enforcement
F State v. Kurtz
F SB 412
F Public Law 280 and Tribal Law and Order Act
Janet A. Klapstein, Department of Justice Appellate Division, Salem
Lauren J. Lester, Karnopp Petersen LLP, Bend
Tim Simmons, United States Attorney’s Office, Eugene
2:30 Off-Reservation Rights: natural and Cultural Resources
Robert A. Brunoe, General Manager, Branch of Natural Resources, Confederated Tribes of the Warm
Springs Reservation of Oregon, Warm Springs
Dennis Griffin, State Archaeologist for the Oregon State Historic Preservation Office, Oregon Heritage,
Oregon Parks & Recreation Department, Salem
Brent H. Hall, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton
3:45 Break
Government Law and Indian Law: Critical Issues and Recent Developments v
SCHEDuLE (Continued)
4:00 Ethics: who Is Your Client?
F Working with tribal/nontribal governments, economic developments subsidiaries, and
members of governing bodies
F Conflicts of interest and privilege in tribal/nontribal governments
peter R. Jarvis, Hinshaw & Culbertson LLP, Portland
peter Shepherd, Harrang Long Gary Rudnick PC, Salem
5:00 Adjourn
5:15 Government Law Section and Indian Law Section Annual Business meetings
Government Law and Indian Law: Critical Issues and Recent Developments vi
FACuLTY
Jennifer Biesack, The Confederated Tribes of the Grand Ronde Community of Oregon, Grand Ronde. Ms.
Biesack specializes in real estate and lands, housing, development and construction, public safety, and
child welfare. Ms. Biesack previously worked for the Oneida Tribe of Indians of Wisconsin. She is
admitted to practice in Oregon and Wisconsin, and she is the 2012 secretary for the Oregon State Bar
Indian Law Section.
Robert A. Brunoe, General Manager, Branch of Natural Resources, Confederated Tribes of the Warm Springs
Reservation of Oregon, Warm Springs.
Bob Garcia, Tribal Council Chair, Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Coos Bay.
Mr. Garcia currently chairs the Tribal Council, following the footsteps of his maternal grandfather, a
Miluk Coos Indian elder who served as Tribal Chairman nearly 60 years ago. Since becoming Tribal
Chair, Mr. Garcia has overseen a number of grant-funded projects, including $2 million in ARRA
housing grants. Mr. Garcia also is the Assistant General Manager of Three Rivers Casino & Hotel in
Florence, where he oversees 500 employees, manages a monthly budget of $4 million, and assists in
leading all aspects of planning and operations. In addition, he serves as Treasurer of the Oregon Tribal
Gaming Alliance, as a member of the Executive Committee of the National Indian Gaming Association
for Oregon, Washington, Idaho, and Montana, and as an appointee to the Oregon State Legislative
Commission on Indian Services. He speaks regularly at conferences on tribal economic matters.
Dennis Griffin, State Archaeologist for the Oregon State Historic Preservation Office, Oregon Heritage, Oregon
Parks & Recreation Department, Salem. Dr. Griffin has served as the State Archaeologist with the Oregon
State Historic Preservation Office for the past ten years. His duties and responsibilities include all
aspects of public archaeology from Section 106 of the National Historic Preservation Act and state law
review and compliance to liaison with public agencies and public education. Dr. Griffin oversees the
state’s archaeological permit process and serves as the primary liaison with the state’s nine federally
recognized Tribal Cultural Resource programs. His archaeological expertise includes extensive research
throughout the Pacific Northwest and Alaska with an emphasis on oral history, land use history, and
tribal collaborative projects. He has published several articles on Oregon state cultural resource laws.
Ellen H. Grover, Karnopp Petersen LLP, Bend. Ms. Grover concentrates her practice in the areas of land
use, natural resources, Indian, and development law issues. Her practice also focuses on assisting the
Confederated Tribes of the Warm Springs Reservation of Oregon on business development, renewable
energy, hydroelectric, energy infrastructure, and other complex development projects. She advises the
tribe on various natural resource regulatory programs and compliance matters. She is a member of the
Oregon State Bar Sustainable Future Section Executive Committee and Environmental and Natural
Resources Section Executive Committee. She also is a member of the Oregon State Bar Real Estate and
Land Use Section and the Deschutes County Bar Association.
Brent H. Hall, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton. Mr.
Hall is an attorney in the Office of Legal Counsel for the Confederated Tribes of the Umatilla Indian
Reservation. He advises the governing body of the Tribes on matters related primarily to treaty-reserved
fishing and hunting rights and associated environmental, natural resources, and law enforcement
issues. He also represents the Tribes in litigation involving those treaty-reserved rights in federal and
state courts.
Government Law and Indian Law: Critical Issues and Recent Developments vii
FACuLTY (Continued)
peter R. Jarvis, Hinshaw & Culbertson LLP, Portland. Mr. Jarvis practices primarily in the area of attorney
professional responsibility and risk management. He advises lawyers, law firms, and corporate legal
departments in legal ethics, risk management, and disciplinary defense matters, and he serves as an
expert witness in such matters. He is admitted to practice in Oregon, Washington, California, Alaska,
and New York. He is a former board member and past president of the Association of Professional
Responsibility Lawyers. Bar committees on which he has served include the Washington State Bar
Association’s Committee on the Future of the Profession, the Washington State Bar Committee to
Define the Practice of Law and the Rules of Professional Conduct Committee, and the Oregon State
Bar Legal Ethics Committee. Mr. Jarvis has participated in continuing legal education seminars for law
firms and corporate legal departments and numerous public legal ethics/risk management seminars.
He has also authored or coauthored many articles and chapters on attorney professional responsibility
and risk management issues.
mary Anne Kenworthy, Office of the Solicitor, U.S. Department of the Interior, Portland. Ms. Kenworthy
specializes in Indian law and works on cases and issues concerning Indian lands and trust resources,
including trust acquisitions, timber trespass, rights of way, and cultural resources issues. Ms. Kenworthy
has provided training throughout the country to tribes, law enforcement personnel, and other federal
agencies on the implementation and prosecution of violations under the Archaeological Resources
Protection Act and the Native American Graves Protection Act. Before working at the Solicitor’s Office,
Ms. Kenworthy was an attorney for seven years at Alaska Legal Services Corporation in Anchorage,
representing individual native allottees in administrative hearings and in federal court over their claims
to land. Ms. Kenworthy is admitted to practice in Alaska and Oregon.
Janet A. Klapstein, Department of Justice Appellate Division, Salem.
Lauren J. Lester, Karnopp Petersen LLP, Bend. Ms. Lester’s practice focuses on representing the
Confederated Tribes of the Warm Springs Reservation of Oregon with respect to a wide variety of
issues. Before joining the firm, she served as a judicial clerk to the Honorable Virginia L. Linder, who
currently serves on the Oregon Supreme Court.
Douglas C. macCourt, Ater Wynne LLP, Portland. Mr. MacCourt is chair of the firm’s Indian Law
Practice Group and cochair of its Sustainable Practices Advisory Group. Mr. MacCourt specializes in
environmental law and regulation, energy development, land use, and government affairs for industry,
local government, Native American tribes and Alaska Native corporations, and individual clients.
He serves on the National Association of Local Government Environmental Professionals Board of
Directors. He is coauthor of Environmental and Natural Resources Law (Oregon CLE 2002 & Supp 2006)
and author of Renewable Energy Development in Indian Country: A Handbook for Tribes (National Renewable
Energy Laboratory 2010).
Karen Quigley, Oregon Legislative Commission on Indian Services, Salem. Ms. Quigley has served as
Executive Director of the Legislative Commission on Indian Services for 18 years. This statutory
commission considers matters regarding Oregon tribal-state relations, serves as a clearinghouse for
information on Oregon tribes and Oregon’s Indian population, and is the advisory body to the Executive
and Legislative Branches on Indian issues. She has spoken or provided training to tribal governments,
state agencies, organizations, associations, and universities in Alaska, Nevada, Colorado, Oregon, and
Wisconsin on tribal-state government-to-government relations, consultation with tribal governments,
and other topics. She authored a chapter in Inside the Minds: Emerging Issues in State Tribal Relations,
Aspatore (Thomson-Reuters), 2009 ed.
Government Law and Indian Law: Critical Issues and Recent Developments viii
FACuLTY (Continued)
Roy Sampsel, Choctaw, Executive Director, Institute for Tribal Government, Portland State University,
Portland. Roy Sampsel is a board member of the Institute for Tribal Government and the Tribal
Leadership Forum, and he is president of Global Resources Inc., a natural resources and management
consulting firm in Portland. During the past 30 years, he has worked extensively with Northwest and
other tribal governments on inter-governmental relations and the development and implementation of
fish, wildlife, water, and energy policy. Mr. Sampsel received his B.A. in Political Science from Portland
State University. He is a member of the Choctaw and Wyandotte tribes.
wayne Shammel, Cow Creek Band of Umpqua Indians, Roseburg. Mr. Shammel has experience as general
counsel in the areas of construction, banking, capital and government financing, utility and infrastructure
development, water, intellectual property, gaming, Indian law, lobbying and government affairs,
legislative counsel, government contracting, corporate counsel, civil litigation, corporate, bankruptcy,
business development, natural resources development, and project management. He is admitted to
practice in Oregon and Colorado, and he is a member of the Confederated Salish and Kootenai Tribes
of the Flathead Reservation.
peter Shepherd, Harrang Long Gary Rudnick PC, Salem. Mr. Shepherd is a member of the firm’s
government and litigation practices. Mr. Shepherd has nearly three decades of experience in government
affairs, litigation, and public administration. After practicing law in Eugene, he served successively as
Legislative Assistant to the late state Senator William (Bill) Frye, Deputy District Attorney in Marion
County, Assistant Attorney General in the Organized Crime Section of the Oregon Department of
Justice (DOJ) under Attorney General Frohnmayer, and Attorney in Charge of DOJ’s Financial Fraud/
Consumer Protection Section under Attorneys General Kulongoski and Myers. Attorney General Myers
later selected Mr. Shepherd as one of two Special Counsel to the Attorney General. From 2001 through
2009, he served as the Deputy Attorney General, also by appointment of Attorney General Myers. He is
a past member of the Oregon State Bar Criminal Law and Consumer Law section executive committees
and the House of Delegates.
Tim Simmons, United States Attorney’s Office, Eugene. Mr. Simmons has been an Assistant United States
Attorney in the District of Oregon since 1995. Mr. Simmons serves as one of three Tribal Liaisons in the
U.S. Attorney’s Office. As part of his duties, Mr. Simmons works with tribal representatives to address
matters impacting the respective tribal nations and the United States Attorney’s Office. Prior to joining
the United States Attorney’s Office, Mr. Simmons was a staff attorney at the Native American Program
Oregon Legal Services for three years.
Stephanie Striffler, Native American Affairs Coordinator, Oregon Department of Justice, Salem. Ms. Striffler
is a Senior Assistant Attorney General in the Oregon Department of Justice’s Appellate Division and the
department’s Native American Affairs Coordinator. She also serves on the governor’s team negotiating
tribal gaming compacts. During her years at the Oregon Department of Justice, she has also held the
positions of Special Counsel to the Attorney General and Attorney-in-Charge of the Special Litigation
Unit. Ms. Striffler has spoken at many CLE events and trainings on Indian law and natural resources
issues. For the last several years, she has been responsible for updating the Conference of Western
Attorneys General’s American Indian Law Deskbook chapter on “Cooperative Agreements with Tribes.”
Government Law and Indian Law: Critical Issues and Recent Developments ix
Government Law and Indian Law: Critical Issues and Recent Developments x