CHAPTER 12 THE ETHICS OF TRIBAL NEGOTIATIONS FOR NON-TRIBAL PARTIES AND THEIR COUNSEL

• Jurisdiction: United States

Indian Law and Natural Resources: The Basics and Beyond (Sep 2017)
CHAPTER 12
THE ETHICS OF TRIBAL NEGOTIATIONS FOR NON-TRIBAL PARTIES AND THEIR COUNSEL
Maranda S. Compton
Of Counsel
Van Ness Feldman, LLP
Washington, DC ¹

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MARANDA S. COMPTON is Of Counsel with Van Ness Feldman LLP, in Washington, DC. Maranda focuses her practice on all aspects of Native American law and policy. She is experienced in representing both tribal and non-tribal clients in a wide range of federal regulatory, environmental, energy, and natural resources issues, with particular knowledge of the oil and gas industry. For her clients, Maranda provides a deep understanding of the diverse and complex factors involved in disputes, transactions and regulation arising in the tribal context. Applying her intimate knowledge of Indian Country, she helps clients identify winning strategies and find favorable outcomes in commercial transactions involving American Indian tribes; project development on tribal and federal lands; issues of federal, state and tribal regulation; American Indian water rights; and environmental permitting. Specifically, Maranda counsels energy sector companies and tribes in negotiations of mineral and land leases, operating agreements, joint venture agreements, and rights-of-way. She offers natural resource clients a wealth of experience with issues related to tribal jurisdiction, environmental compliance, tribal employment rights and environmental remediation. In the corporate context, Maranda represents tribal and non-tribal businesses and banks in commercial and lending transactions and related areas of federal, state and tribal regulation. When impassible issues arise, Maranda represents tribal and non-tribal clients in litigation in state, federal and tribal courts, as well as alternative dispute resolution. Prior to joining Van Ness Feldman, Maranda worked for a large international law firm in their Denver, Colorado office. Maranda also served as a law clerk to Justice Allison H. Eid of the Supreme Court of Colorado and clerked for the Native American Rights Fund while in law school. Maranda is an enrolled member of the Delaware Tribe of Indians and the Cherokee Nation of Oklahoma. She received her J.D. degree in 2009 from the University of Denver, Sturm College of Law.

I. Introduction

When engaging with American Indian Tribes, companies and stakeholders often appreciate that they are in unfamiliar cultural territory. But many times it is the ethical unknowns that - while less obvious - can be much more dangerous.

Consider this hypothetical: You are lead project counsel for the developer of a linear project. The developer is initiating outreach to the Halluci Nation,² a Tribe who's reservation the preferred alignment will traverse. You are notified that the Halluci Nation Chairwoman has invited your client to a meeting to kick-off negotiations. Your immediate concern might be the meeting strategy and potential for cultural miscues but you should also stop to consider the ethical questions. Will Tribal attorneys attend? If so, who do they represent? Should you also bring counsel? And if you do, what kind of counsel should you bring? What if at the meeting the Tribe requests financial assistance? Can you fund scholarships or is that considered a bribe? What if the Tribe demands that you utilize the tribally-owned construction company for on-reservation construction? Should you agree? What if you end up in Tribal court?

Taking cues from the ABA Model Rules of Professional Conduct and examples from tribal law, this paper works through the above-hypothetical to address the difficult, yet common, ethical questions that arise when working with American Indian Tribes in the United States, such as who represents a Tribe, when is legal representation necessary, and what ethical and anti-corruption standards apply to tribal negotiations.

II. Analysis

A. Who Represents a Tribe?

i. A Brief Introduction and History of Tribal Governmental Structures

When engaging with Tribes even the simple task of identifying the client/parties and sorting through the related issues of confidentiality, counsel-less communication and conflicts can be difficult. In part, this is due to the unique structure and status of Tribes. The sovereign status of each of the 567 federally-recognized Tribes, allows it to implement its own individual, culturally-appropriate form of government.

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There are some commonalities - largely a result the Indian Reorganization Act ("IRA") of 1934.³ The IRA is best described as Congress's recognition of the self-governing authority of Indian Tribes as domestic dependent nations.⁴ Under the IRA, in lieu of federal administrative absolutism, tribal governments were provided approval and veto authority of the disposition of tribal assets, as well as various other enumerated powers, including the right to employ legal counsel and negotiate with federal, state and local governments.⁵ However, Congressional sanctioning of these powers was subject to Tribes adopting, by majority vote, a constitution that consolidated power into a single council, a form strongly suggested by the Bureau of Indian Affairs (the "BIA").⁶ The IRA also permitted Tribes to form business corporations and authorized the Secretary to issues charters of incorporation (commonly referred to as "Section 17 corporations" after the authorizing provision of the Act).⁷ In the wake of the IRA, most Tribes "organized for [their] common welfare" and adopted "an appropriate constitution and bylaws," creating a centralized tribal council (often called a tribal council, community council, or business council) and a tribal corporation or commercial entity.⁸

In modern times, the effect of the IRA is that many Tribes still rely on a single tribal council - the boilerplate IRA-era form - to fulfill all governmental decision-making duties. Others utilize a council in conjunction with various departments and boards with differing, and sometimes overlapping or adversarial, authority. Often there are also various tribal regulators that...