FUNDAMENTALS OF CONTRACTING BY AND WITH INDIAN TRIBES

• Jurisdiction: United States

Natural Resources Development on Indian Lands
(Mar 2011)
CHAPTER 1C
FUNDAMENTALS OF CONTRACTING BY AND WITH INDIAN TRIBES
Michael P. O'Connell
Stoel Rives LLP
Seattle, Washington
Douglas C. Maccourt
Ater Wynne LLP
Portland, Oregon

MICHAEL P. O'CONNELL is a partner of the firm practicing in the Resources Development and Environment group of Stoel Rives LLP in Seattle. He focuses his practice on natural resources, environmental, energy, water rights and Indian law matters involving project development. For more than 30 years, Michael has assisted a broad range of clients throughout the West, including public ports, energy producers (wave and tidal hydrokinetic and conventional hydropower, wind, ethanol, oil and gas developers, pipeline owners), forestry, food processing, shopping center and golf course developers, general contractors, industrial, manufacturing, commercial and other private and public clients, including Indian tribes and parties engaged in business or other transactions with Indian tribes. Michael counsels clients through federal, state and tribal environmental review, project siting and permitting matters involving National Environmental Policy Act, Endangered Species Act, Clean Water Act (stormwater, wastewater and wetlands permits, citizen suits and water quality certifications), coastal zone management, National Historic Preservation Act compliance regarding cultural resources and historic properties (including traditional cultural properties or TCPs), human remains, fossils, and water right acquisitions and transfers. In these areas, Michael also assists clients in transactional due diligence, regulatory compliance and litigation. In Indian law matters, Michael assists clients on projects (on and outside Indian reservations) that affect tribal interests, including financial transactions, leases and rights of ways over tribal land, taxation and employment issues, negotiating waivers of tribal sovereign immunity and litigation. He also regularly speaks at seminars on environmental, natural resources and Indian law.

DOUGLAS C. MACCOURT is a partner at Ater Wynne LLP in Portland who concentrates his practice on environmental and natural resources law, energy development, land use, and property transactions. For the past 20 years he has represented private and public sector clients to permit, construct and operate energy, industrial and economic development projects. Doug is chair of the firm's Indian Law Group, co-chair of the Sustainable Practices Advisory Group, and advises tribal governments and enterprises on environmental, energy, federal Indian law and property transactions. He is listed in Best Lawyers in America in the Native American and Natural Resources Law categories. He has also been listed in Chambers USA: America's Leading Lawyers for Business. Doug has extensive experience with state and federal cleanup and hazardous waste laws, natural resources restoration and damages, endangered species, water rights and water quality issues associated with contaminated properties and spills. He advises client/consultant teams in all phases of local, state, and federal cleanup, development and natural resources permitting. Doug represents clients before state legislative bodies and Congress on appropriations and project matters, and has successfully defended clients' rights on appeal before the Oregon Land Use Board of Appeals, Oregon Court of Appeals, U.S. District Court and U.S. Ninth Circuit Court of Appeals.

Michael P. O'Connell

Stoel Rives LLP

moconnell@stoel.com

206-386-7692

Douglas C. MacCourt

Ater Wynne LLP

dcm@aterwynne.com

503-226-8672

Rocky Mountain Mineral Law Foundation

Natural Resource Development on Indian Lands

Albuquerque, New Mexico, March 3, 2011

Goal of Today's Dialogue

• A few words on contracts in Indian Country

• The Top 10, more or less

• Exploring some ancillary issues raised by the Top 10

• More detail and authorities, including specifics of negotiating joint development agreements, in conference materials

[Page 1C-2]

Contract as Business Foundation

• Natural resources development on tribal lands is a long-term strategy

• Successful ventures, no matter how large or small, requires at least 4 critical elements:

— Efficient business structures

-Access to capital

— Standardized and fair regulatory processes administered by reliable, stable and transparent government authorities

—...