Areas Of Practice

Our team provides legal services covering many areas of Indian Law, including Alternative Dispute Resolution, Banking & Finance, Business & Commercial Transactions, Construction & Design, Environmental & Natural Resources, Indian Child Welfare, Indian Gaming, Intellectual Property, Labor & Employment, Land Tenure, Use & Acquisition, Litigation, Lobbying & Legislative Affairs, Taxation, and Tribal Governance.

 

Alternative Dispute Resolution

Effective mediation and arbitration skills are necessities for resolving modern business and other disputes as quickly and fairly as possible—including in Indian country. Our attorneys have extensive experience negotiating appropriate ADR provisions for tribal projects, resolving disputes for clients, and serving as mediators and arbitrators (in addition to sitting as tribal judges).  One of our attorneys, who serves as a mediator for a tribal court in Minnesota, worked with Papua New Guinea’s judiciary and consulted with the World Bank to help integrate formal and informal ADR procedures.   Another is a qualified Minnesota District Court neutral.  Two of our attorneys have unique experience handling Indian country construction disputes and are available to act as neutrals.  And we regularly consult with tribes to help them establish their own dispute-resolution forums, including advising on peacemaking courts and other mediation options.  

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Banking And Finance

The need for tribes, tribal businesses, and individual members to access capital to provide infrastructure, housing, and economic development is great. Often, conventional forms of financing are not available to tribes. Similarly, there are several types of financing that tribes can participate in that are often under-utilized. The banking and lending industry is a highly technical area that requires current knowledge of the ever-changing regulations and an attention to important details that can make or break a transaction. Our banking and lending experience allows us to anticipate the complexities of each transaction and provide appropriate guidance toward meeting the client's needs.

We have acted as lawyers and advisers in shaping tribal financial transactions as well as negotiating its structure, terms, warranties, and guarantees. The financing transactions in which we have participated are both asset-based and credit or cash-flow based, secured and unsecured, credit-enhanced, syndicated, bonded, and any combination of the above. The size of our transactions ranges from relatively few dollars to hundreds of millions of dollars. We treat them all with the same sense of care and importance. These transactions will sometimes include sales and leasebacks, securitized loans, and other less conventional forms of borrowing. We have considerable experience to bring to bear on creative solutions to borrowing issues and have extensive contacts in the lending community.

We also represented underwriters in bringing to market the first publicly traded Indian governmental bond financing in the United States, and we have represented tribes and tribal entities in private-placement financings for casinos, tribal governmental projects, and other tribal economic-development projects. 

A growing area in tribal lending is intertribal loans.  These can provide a competitive and unique alternative to other financing options. Our attorneys regularly negotiate and close loans on behalf of tribal borrowers using intertribal financing to complete essential projects such as tribal government buildings, health clinics, and casinos and hotels (including both new projects and expansions of existing facilities), and other tribal businesses.  

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Business And Commerical Transactions

As tribes develop and strengthen the economies on their reservations, their business needs can change dramatically. Often, the more economically and commercially diverse a tribe is, the more the tribe needs lawyers who can handle large-scale and complex business, commercial, and corporate matters.

Within a tribal context, we:

  • Develop financing structures for tribal projects;
  • Form federally, state, and tribally chartered corporations;
  • Structure and negotiate the purchase and sale of corporate interests;
  • Advise tribes on participation in venture capital and public finance;
  • Draft and review management and operation agreements;
  • Form joint ventures; and
  • Counsel business clients in all aspects of business & commercial operations and economic diversification.

We have represented a tribe through all phases of golf-course development: land acquisition, market assessment, financing, and design and development agreements. Additionally, our lawyers can provide expert advice on negotiating construction contracts for tribal development projects.

We also have substantial experience in conducting intellectual property audits and identifying existing and potential service and trade marks for federal registration and protection. For example, we have represented a gaming facility before the Trademark Trial and Appeal Board to cancel infringing trademark registrations by a Las Vegas entity improperly using the tribe's facility name.

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Construction and Design Practice

Our lawyers have experience on all sides of tribal construction projects, having represented tribal owners, contractors, and other players. We have:

  • Advised general contractors and other vendors doing business with tribes;
  • Worked closely with tribal councils, tribal business entities, and tribal staff throughout the country;
  • Represented both tribal borrowers and contractors in connection with different financings, including for debt refinance, casino and resort development and construction, tribal government infrastructure, and other purposes;
  • Negotiated and drafted many construction and design contracts for Indian country projects, including tribal government centers, wastewater treatment plants, casinos (new construction and remodeling), housing projects, and more;
  • Successfully mediated and arbitrated construction-defect and other disputes on tribal properties;
  • Coordinated with state and federal agencies to meet regulatory requirements for Indian country projects; and
  • Navigated through questions of tribal sovereign immunity, jurisdiction, dispute resolution, and all other aspects of doing business in Indian Country on a daily basis.

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Cultural Resource Protection

The Jacobson Law Group is passionate about helping our clients protect and defend their ancestors and their cultural history by assisting them in matters that affect or have the potential to affect culturally significant lands and resources, historic sites and properties, and cultural patrimony. We work collaboratively with tribes to develop creating strategies to ensure protection of tribal cultural resources to the maximum extent possible.

We have assisted tribes with:

  • Acquiring traditional cultural properties.
  • Repatriating remains and funerary objects, including the identification and acquisition of repatriation sites where in situ reinternment is not possible.
  • Repatriating Objects of Cultural Patrimony.
  • Initiating and pursing enforcement actions under NAGPRA.
  • Initiating and pursuing NAGPRA Review Committee proceedings.
  • Negotiating and drafting intergovernmental agreements with state and federal entities to implement the protection of cultural resources under the NHPA and NAGPRA.
  • Negotiating and drafting agreements with museums and others in possession and control of remains or cultural patrimony regarding the implementation of NAGPRA responsibilities.
  • Coordinating with federal and state officials in investigations and enforcement actions involving NAGPRA and ARPA violations.
  • Initiating consultation under the NHPA and other legal authorities with federal and state agencies to promote cultural resource protection.
  • Drafting comments in response to proposed rulemaking or other solicitations that touch on tribal cultural resource protection.
  • Developing training opportunities for non-tribal entities.
  • Developing litigation strategies for compelling NAGPRA compliance.
  • Developing cultural resource protection and repatriation codes.
  • Assisting in the creation of tribal cultural centers.

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Environment And Natural Resources

The preservation and regulation of forests, water, wildlife, oil, gas, and mineral resources are of paramount importance to most tribes, as are off-reservation treaty rights related to these resources. Our extensive experience in the areas of resource management, treaty rights to hunt, fish, and gather; natural-resource-damage claims, and other environmental issues makes us uniquely qualified to represent Indian tribes and tribal departments.

Our attorneys have litigated numerous treaty, hunting, fishing, and gathering cases, drafted resource codes, evaluated complex biological and historical issues and expert reports, and developed species-by-species management protocols. Our attorneys have successfully litigated trust-land management issues, boundary and use issues, leasing disputes, and the validity or cancellation of rights of way.

In the environmental area, we have dealt with a number of hazardous materials situations, including evaluating mold and other infestations in tribal housing. Our lawyers have handled clean-up issues, clean water and clean air issues, tribal treatment as a state for various environmental purposes, and drainage and watershed issues.

We negotiated a settlement among a tribe, a tribal entity, and a railroad for restoration of the grade and the environment along a line of rail through the reservation, including prevention of the establishment of a public trail along the line of rail. We represent tribes in negotiations and cooperative agreements with state and local entities to regulate waters over which both the tribe and state claim jurisdiction. We have also represented a tribe against a state's attempt to claim diminishment of the tribe's reservation in order to exercise permitting authority under the Clean Water Act.

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Indian Child Welfare

No resource is more important to tribes than their children. The health of a tribe is directly dependent on the health and welfare of its children. When tribal children face challenges, it is crucial that tribes work to ensure that tribal families remain intact and that tribal children maintain close ties to their community and their culture. Jacobson Law has worked for years with tribes to ensure that tribal children and their families are afforded the full protections of tribal, state, and federal laws so that they have the best opportunity to heal and to move forward together.

Our attorneys have extensive experience working with tribal social services agencies to represent the interests of tribes, tribal families, and tribal children in tribal, state, and federal courts. In addition, our attorneys have worked with their clients to ensure that, where possible, tribal forums handle matters involving tribal children. We have assisted their clients in encouraging extended family involvement to solve challenges faced by family members, and have encouraged and assisted in developing culturally-based approaches to these challenges.

Where necessary, we have represented tribal clients in tribal, state and federal judicial forums at trial and appellate levels and have assisted those clients in securing significant victories for tribal children and their families. We have:

  • Represented tribal clients on cases involving tribal children in State court proceedings in the Twin Cities metro area, out-state Minnesota and in the state courts of other states from South Dakota to New York;
  • Represented tribal clients in tribal court proceedings from drafting and initiating hundreds of child-in-need-of-protection petitions, to adjudicating those petitions and vindicating them on appeal;
  • Represented tribal clients in federal court proceedings involving tribal children, including assisting in securing a federal court ruling confirming the extraterritorial jurisdiction of a tribal client over its minor children, wherever located, if they are in need of assistance;
  • Secured intervener status of a Canadian First Nation under the federal Indian Child Welfare in a child welfare proceeding in New York state court, based on the tribe's historical ancestral relationship with a federally-recognized Indian tribe in the state of Minnesota; and 
  • Prepared and filed scores of appellate briefs as amici curiae on behalf of tribal clients in important cases involving Indian children from other tribes, including before the United States Supreme Court.

Jacobson Law has also assisted its clients in developing department policies and procedures for implementing social services responsibilities to tribal children, and in creating tribal laws to assist in addressing the needs of adult members in tribal forums, including guardianship proceedings, civil commitment proceedings, and tribal drug court procedures.

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Indian Gaming

Our lawyers have comprehensive experience in all facets of tribal gaming. We have negotiated and closed gaming development deals in many states, and have extensive experience before the National Indian Gaming Commission ("NIGC") on gaming-contract and regulatory compliance issues. We have also:

  • Negotiated tribal-state compacts and amendments to compacts;
  • Drafted financing, operating, and construction contracts for casino projects;
  • Drafted and revised tribal gaming ordinances;
  • Assisted tribes with requests for "Indian lands" opinions under Section 20 of IGRA;
  • Represented gaming contractors in NIGC investigations;
  • Guided tribes and contractors through the management-contract approval process;
  • Obtained NIGC declination letters;
  • Helped tribes acquire lands eligible for gaming;
  • Advised tribes on applicable tax exemptions;
  • Drafted tribal gaming commission regulations;
  • Advised tribal gaming commissions on licensing and enforcement matters; and
  • Successfully litigated gaming-related contract disputes in federal, state, and tribal courts and before arbitration panels.

We regularly monitor and advise our clients on developments and trends in Indian gaming, such as state negotiations, revenue sharing, the scope and definition of Class II and III gaming and Indian lands, federal oversight, internet gaming, and trust land acquisition and use.

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Intellectual Property

Our clients know better than anyone the importance of protecting property. In this era of vast economic expansion in Indian Country, our clients have invested enormous capital in developing property, including intellectual property. We provide a full range of intellectual-property services to our clients, including:

  • Performing trademark and service mark conflict searches and clearing marks for use and registration;
  • Assisting clients in obtaining and maintaining state and federal trade and service-mark registrations;
  • Assisting clients in obtaining and maintaining copyright registrations;
  • Assisting clients in intellectual property licensing
  • Assisting clients in mediated resolutions of intellectual-property disputes; and 
  • Policing existing intellectual property and assisting clients in enforcement efforts, including litigation in administrative and judicial forums.

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Labor And Employment

Our lawyers have unique and broad experience in the development of tribal employment laws, procedures, and policies. We have assisted tribes in developing employee handbooks, Tribal Employment Rights Ordinances ("TEROs"), grievance procedures, drug testing policies, sexual harassment policies, and training; along with designing approaches to address unionization, and have also developed of a full range of benefit plans for tribes and tribal businesses. We are also experienced in the application of federal employment laws such as the Occupational Safety and Health Act ("OSHA") and the Fair Labor Standards Act ("FLSA"), and other federal labor laws and their impact on tribes and tribal organizations. We have established a successful record in employment matters in tribal courts and with state and federal regulatory agencies.

We have negotiated successfully with the Department of Labor regarding its request to conduct a FLSA audit on a tribal bingo facility and whether the Family Medical Leave Act ("FMLA") applies to tribal casino employees.

We have also successfully represented tribes in federal, state, and tribal litigation over alleged labor violations.

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Land Tenure, Use & Acquisition

Jacobson Law’s attorneys have worked on both trust- and fee-land acquisitions, construction contracts, title issues relating to current or former Indian land, tribal land-base restoration, conveyances of tribal fee-land into trust, tribal and individual land claims, disputes among allottees, fractionated heirship issues, reservation housing, and easements through reservations. We also have a wealth of experience in commercial, industrial, and residential real estate matters, including purchases and sales, leases, land-use planning, subdivision development, easements, title matters, boundary disputes, water rights and utility issues both on fee-land and on or adjacent to trust land.

We represent lenders, developers, and landowners on financing arrangements for all types of real estate projects. We also have expertise in environmental matters, regulatory approvals, taxation, and other areas that support our real estate work.

We have represented numerous tribes in their fee-to-trust application processes for over 200 parcels of tribally owned fee-land, and we have good working relationships with several regional BIA offices and the central office in Washington, D.C.

Our lawyers recently secured federal legislation mandating the refund of nearly 1,300 acres from the U.S. Army Corps of Engineers to the U.S. in trust for a tribe. The lands had been lost in the 1930s.

We have developed many tribal land use plans. We have also represented an individual allotted against a tribal government for the tribal government's improper taking of an advertising easement on the allotment.

Jacobson Law is also responsible for negotiating a historic settlement of federal reservation boundary litigation, embodied in numerous agreements with state and local entities to cover land, tax, law enforcement, ICWA, and other matters.

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Litigation

Because our attorneys recognize that the most comprehensive and cost-effective resolutions often come outside of court, we work closely with our clients to avoid litigation where appropriate.  But we also understand that some questions can only be resolved in court, and for those cases, we bring experienced litigators to the table.  We have broad experience in representing clients in federal, state, and tribal judicial and administrative forums, and before arbitration panels.  We advise clients at every stage of the proceeding, from determining whether to file a claim to protecting successful judgments on appeal.

Compensation for ceded property

  • Minnesota Chippewa Tribe v. United States, Docket Nos. 19 & 188 (Fed. Cl. 1999)

Federal laws in Indian Country

Age Discrimination in Employment Act

  • EEOC v. Fond du Lac Heavy Equipment, 986 F. 2d 246 (8th Cir. 1993)

Bankruptcy issues

  • In re. Whitaker, 474 B.R. 687, 2012 WL 2924252 (8th Cir. B.A.P. 2012)

Family Medical Leave Act; Americans with Disabilities Act

  • Sober v. Soaring Eagle Casino and Resort, 2009 WL 3254355 (E.D. Mich. 2009)

National Labor Relations Act and unionization issues

  • N.L.R.B. v. Fortune Bay Resort Casino 688 F. Supp. 2d 858 (D. Minn. 2012)
  • Saginaw Chippewa Indian Tribe of Michigan v. N.L.R.B., 838 F. Supp. 2d 598 (E.D. Mich. 2011)

Section 1983

  • Hester v. Lower Sioux Indian Community, et al., 885 F.Supp.2d 934 (D. Minn, 2012).

Indian Child Welfare Act

  • In re MH, 956 N.E.2d 510 (Ill. Ct. App. 2011).
  • In re Welfare of Child of: T.T.B. & G.W., 724 N.W. 2d 300 (Minn. 2006)
  • Johnson v. Child Welfare Office of the Prairie Island Indian Community, CA-06-05 (Prairie Island Ct. App. Feb. 15, 2006).

Indian Gaming

Class III gaming rights and state compact negotiations

  • Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 271 F.3d 235 (6th Cir. 2001)
  • Lower Sioux Indian Community v. State of Minnesota, Civ. No. 4-89-936 (D. Minn. 1991)

Contract disputes over casino management

  • Teague v. Bad River Band of Chippewa, 665 N.W. 2d 899 (Wis. 2003); 612 N. W2d 709 (Wis. 2000)
  • Three Affiliated Tribes of the Fort Berthold Reservation v. The Bruce Lien Co., 93 F.3d 1412 (8th Cir. 1996)

Sole-proprietary-interest requirement

  • City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 830 F. Supp. 2d 712 (D. Minn. 2011); 702 F.3d 1147 (8th Cir. 2013).

Intellectual property rights

  • Prairie Island Indian Community v. Treasure Island Corporation, Cancellation Nos. 92028171, 92028379 (TTAB May 15, 2008).
  • Prairie Island Indian Community v. Treasure Island Corp., Consolidated Cancellation No. 28, 126 (TTAB 1997)

Nuclear safety and energy regulation

  • State of New York, et al. v. U.S. Nuclear Regulatory Commission, 681 F.3d 471 (D.C. Cir. 2012); 824 F.3d 1012 (D.C.Cir. 2016).

State civil regulatory jurisdiction

  • State v. Stone, 572 N. W.2d 725 (Minn. 1997)

Taxability of tribal lands and assets

  • Tunica-Biloxi Tribe v. Bridges, 437 F. Supp. 2d 599 (M.D. La. 2006)
  • Leech Lake Band of Chippewa v. Cass County, Minnesota 524 U.S. 103 (1998)

Tribal rights to receive municipal services

  • Shakopee Mdewakanton Sioux Community v. City of Prior Lake, 771 F. 2d 1153 (8th Cir. 1985), cert. den. 475 U.S. 1011 (1986)

Tribal Court exhaustion and concurrent jurisdiction

  • Bruce H. Lien Company v.  The Three Affiliated Tribes of the Fort Berthold Reservation, 93 F.3d 1412 (8th Cir. 1995)
  • Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379 (Minn. Ct. App. 1995)

Reservation Boundaries and tribal jurisdiction

  • Wolfchild v. Redwood County, et al., 91 F.Supp.3d 1093 (D.Minn. 2015)
  • Wolfchild v. Redwood County, et al., 112 F.Supp.3d 866 (D.Minn 2015)
  • Wolfchild v. Redwood County, et al., 824 F.3d 761 (8th Cir. 2016), cert denied, 580 U.S. 2 (2016).
  • Saginaw Chippewa Tribe v. Granholm, 2010 WL 5185114 (E.D. Mich. 2010)

Environment

  • Fond du Lac Band of Lake Superior Chippewa and Grand Portage Band of Lake Superior Chippewa v. EPA, Civ. No. 13-1324 (JRT/LIB) (D.Minn. 2014)

Reserved treaty rights

  • U.S. v. Gotchnik, 57 F. Supp. 2d 798 (D. Minn. 1999)
  • Fond du Lac Band of Chippewa Indians v. Carlson, 63 F.3d 253 (8th Cir. 1995)

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Lobbying And Governmental Affairs

Tribal governments participate in government-to-government relationships every day. Tribal interests often are implicated, and must be vindicated and preserved by engaging in the legislative and bureaucratic activities of other sovereigns. Effective representation in the processes of those governments ensures strong tribal governments, and is often the only path to effective preservation of sovereign tribal rights and authorities. We have broad and significant experience representing tribal interests in state, federal, and intertribal legislative and administrative matters.

The breadth and depth of our experience gives us unique insight into the workings of legislative and administrative agencies at the tribal, state, and federal levels, which enables us to efficiently prosecute matters and resolve problems quickly for our clients. For over 30 years, we have been engaged in intergovernmental relations for our clients in a broad array of matters, including:

  • Negotiating federal legislation and state agreements regarding gaming;
  • Negotiating federal legislation restoring tribal lands and securing just compensation for prior takings;
  • Analyzing state and federal legislation;
  • Advising clients on the impact of that legislation, and advocating amendments that would benefit our clients; and
  • Preparing testimony and commentary for presentations before tribal, state, and federal bodies and comments on proposed legislation and agency rules.

We have also worked effectively with state and federal bureaucracies to achieve clients objectives, whether the goal is to secure or prevent agency action. As is true with respect to our other practice areas, we are flexible and efficient, deliver quality legal services, and are able to achieve productive results at an affordable cost.

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Taxation

We are well-qualified to advise tribes about the tax consequences of particular business transactions, and we have negotiated complex tax agreements with a number of states and with federal agencies to minimize those consequences. Litigation over jurisdiction to tax tribal assets, tribal activities, tribal income or on-reservation business is a particular area of expertise, as is litigation to establish the extent of that jurisdiction. A key member of our team is attorney Susan Allen, who has nearly 20 years of experience in Indian Country tax matters and also an advanced legal degree, or L.L.M., in tax.

In addition, we have:

  • Represented five Minnesota Tribes in negotiating sales-and-use-tax agreements with the State of Minnesota;
  • Favorably resolved the application of state income-tax laws to passive income of tribal members; and
  • Favorably resolved the application of federal income-tax laws to minor trusts at the time the income was generated.

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Tribal Governance

As a tribe grows and a community’s needs change, it is necessary to review tribal codes, ordinances, regulations, and procedures to ensure they meet a tribe’s changing needs. Our attorneys are experienced in drafting, reviewing, and revising all types of tribal governing documents, including Constitutions and Bylaws.

We have:

  • Assisted tribes in negotiating and administering self-determination contracts, establishing real estate mortgage codes, developing civil and criminal codes, juvenile codes, probate codes, and judicial codes, and creating trust and other benefit programs for tribal minors and adults;
  • Developed tribal employment policies and procedures, business licensing ordinances, natural resource regulations, ordinances governing tribal business enterprise development, and tribal membership;
  • Drafted comprehensive tribal business codes to govern commercial activity on reservations, including the sale of goods, leasing, business licenses and permits, and taxation;
  • Drafted law enforcement agreements between tribes and local law enforcement authorities to empower tribal police to provide services throughout the reservation;
  • Defended an economic development corporation jointly owned by nineteen tribes from an attack by a neighborhood association regarding the inapplicability of the City of Albuquerque's land use regulations; and
  • Secured the first federal deputation of tribal law-enforcement officers in a Public Law 280 state.

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