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Thursday, Sep 29, 2022

Growth Spurred by Gaming Adds to Tribes’ Legal Needs

One of Jerome Levine’s first corporate transactions was to establish a bingo hall in the early 1980s for a client’s brother-in-law.

It so happened that the brother-in-law was chairman of an American Indian tribe.

Levine, now a partner at Holland & Knight LLP’s Los Angeles office, said that deal began a “long learning curve” about Indian law, which at the time primarily consisted of rights to fishing and natural resources. Hardly any case law existed on how American Indians operate a business.

“There wasn’t a lot developed in the commercial area,” said Levine, director of the firm’s Indian law practice. “We had to take that case without fees because the tribe was too poor to pay any fees.”

But a growing number of Los Angeles lawyers have carved a niche in tribal legal services. The practices, which began with the birth of casinos and other gaming institutions, have evolved as gaming helps grow the tribes into high-paying clients with a variety of legal needs.

While much of the work has until now involved laws and regulations, this year marked a foray into the political arena.

Tribal groups were campaigning against Proposition 68, a measure on the Nov. 2 ballot that would allow slot machines at card clubs and racetracks. Despite significant advertising favoring the initiative, only one-third of California voters support the measure in public polls and backers have halted the ads. Another Nov. 2 ballot initiative, Proposition 70, would require tribes to pay 8.84 percent of their net revenue to the state in exchange for unlimited casino expansion on their land.

Whether their legal needs are political, regulatory or administrative, Indian tribes, many of them flush with cash, are taking on the characteristics of large businesses.

That includes the financing and real estate expertise necessary to help develop and maintain casinos, resorts and shopping centers. As sovereign nations, they also seek legal advice for designing tax structures and governing laws.

Then there are lawsuits to defend.

As a result, many of the new practice areas overlap the more traditional sectors of labor, corporate, land use, public policy, litigation and, more recently, election law.

“As they become more successful in doing that, they need to go out and seek assistance from law firms that do general practice,” said Frank Reddick, a partner in the American Indian law and policy practice at Akin Gump Strauss Hauer & Feld LLP.

The growth of commere on American Indian reservations began in earnest in 1988 when Congress passed the Indian Regulatory Gaming Act, which was designed to give tribes an economic means to employ their people.

In California, more than 50 tribal casinos generate $4 billion in revenue, up $3.1 billion from four years ago, according to the California Nations Indian Gaming Association.

But Indian law presents unusual challenges for lawyers. Representing tribal groups in business transactions is more akin to the work of a public policy lawyer who helps draft laws. Those laws often remain in flux, since concepts such as tax incentives must be drafted into the tribal government’s bylaws.

Also, political interests often get in the way of a business transaction, said Mitch Mitchell, a partner at Katten Muchin Zavis Rosenman, who said he prefers to represent American Indian clients in public interest areas, such as child welfare or prisoners’ rights.

“Indian tribes are difficult clients,” said Mitchell, whose father was Comanche. “It’s not necessarily real easy to represent tribes because of those political situations.”

And the interests of an American Indian business entity often differ from that of traditional corporations. For instance, a tribal government that operates a casino and hotel on its reservation may be more concerned about hiring the maximum number of tribal members as employees. A traditional company, motivated solely by profits, may look to reduce the headcount of its operations.

Mark Epstein, a partner at Munger Tolles & Olson LLP, said he relied on several tribal lawyers when representing California American Indian tribes in the state Supreme Court case challenging the constitutionality of Proposition 5. The 1998 ballot initiative was overturned by the court, but later ballot measures legalized banked card games, slot machines and other Nevada-style games in state contracts with American Indian tribes.

Epstein said he was familiar with election laws but had little background in Indian law. “It’s a very complex area,” he said. “I would not want to get into general Indian law without knowing what I’m doing.”

The practice belongs to a growing but still select few. Levine said he merged his Los Angeles boutique firm in July 2000 with Holland & Knight because the Florida-based firm already had been involved in Indian law.

“It takes a lot of experience and training to understand the relationships and differences among tribes,” he said. “It’s a long, arduous task of developing business in this area.”


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