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