When coronavirus struck tribes earlier this year, Donald Pongrace and his American Indian law and policy group at Akin Gump Strauss Hauer & Feld pushed for federal relief funds for the Gila River Indian Community in Arizona.
Tribes have experienced high levels of infection and poorer outcomes due in part to poverty and inadequate public health resources.
“It’s been a mix of efforts to secure funding for tribes, which have been hit seriously, and making sure the federal government set aside the money and that the tribes got the money,” Pongrace said.
The Gila, one of the firm’s tribal clients, received $100 million for priorities like bolstering its health services and clinics, paying salaries for safety employees, and establishing a broad testing program.
Similar efforts also have played out at Jenner & Block, Holland & Knight, and other Big Law firms. They’ve bolstered their Native American practices and are seeing a bump in activity due to the pandemic, legal challenges around the U.S. census, and a Supreme Court ruling that opened more lanes for tribal-related litigation.
“The only remedy for tribal nations often is litigation,” said Fawn Sharp, an attorney and president of the National Congress of American Indians, which represents the some 575 federally recognized tribes. “A lawsuit should be a last resort measure for Native Americans, but we turn to it because we lack equal rights.”
Tribes have often tapped boutique law firms for help on tribal-related issues such as land use or boundaries.
As gaming took off in the 1990s and after, and tribal economic interests grew, Native American entities increasingly began to look to bigger, full-service firms for lobbying in the nation’s capital, and more complex and higher-dollar litigation and deals.
In 2020, the pandemic has been a major driver of legal work.
Historical trauma and persisting racial inequity contribute to disparities in health and socioeconomic factors that likely contribute to elevated instances of Covid-19 among American Indians and Alaska Natives, the U.S. Centers for Disease Control and Prevention reported in a study of 23 states in August.
More resources are needed to support adequate health care and public health efforts to identify cases and collect data, the CDC said.
To that end, tribes have battled to win the full $8 billion earmarked for them in federal relief included in coronavirus stimulus approved by Congress last spring as part of the CARES Act.
They’ve turned to law firms with Native American practices to convince the government of their financial need, and to navigate the bureaucracy of a huge federal aid program.
“There are hundreds of millions of dollars that we haven’t received,” said Sharp.
There’s also litigation between native groups over who qualifies to receive assistance.
A group led by the Chehalis Indians, a Pacific Northwest tribe, challenged relief funds for for-profit Alaska Native Corporations, and won an initial ruling. The suit involves Kanji & Katzen, a litigation firm for tribes and nations. ANC entities engaged Kirkland & Ellis, whose star advocate and former solicitor general Paul Clement argued for their position in federal appeals court, as well as Holland & Hart and Crowell & Moring.
The case, and a related matter are on appeal to the Supreme Court.
Charles Galbraith, co-chair of Jenner & Block’s Native American practice, said his group “has been doing a ton of work” lobbying for CARES Act funds, and advising firms on spending guidelines.
Galbraith joined Jenner & Block earlier this year as part of an eight-person Native American law team hired from Kilpatrick Townsend & Stockton shortly after the Supreme Court’s ruling in McGirt v. Oklahoma.
The high court’s decision, in a criminal case, has been applauded by American Indian law practitioners and scholars for affirming tribal sovereignty. It’s also reinvigorated tribal interest in pressing for rights around voting, gaming, and boundary and jurisdiction issues.
“The ruling was groundbreaking for tribes,” said Galbraith, “and it means that things that might have been stalled for a while, especially land and jurisdictional issues, will be looked at anew. It was an earthquake.”
In July, Oneida Nation won the first major court decision to consider the McGirt ruling in a suit challenging a Wisconsin town’s bid to regulate a festival.
Gaming, Voting, Census
Big Law is also zeroed in on other hot-button issues involving tribes.
Akin Gump was involved in a lawsuit, National Urban League et al. v. Wilbur L. Ross, Jr. et al., to stop an early end to census counting on grounds that an incomplete count of tribal members could cost reservation programs millions in federal funds.
Jenner & Block is due to appear again at the Supreme Court which has accepted a case that affects Native American voting rights in Arizona, as well as those of other minorities.
Brnovich v. Democratic National Committee is awaiting argument later this term and is part of a prolonged fight over whether mail-in ballots can be collected and delivered by someone other than the voter’s immediate relatives or caregivers.
A lower court found that disallowing the practice caused “a substantially higher percentage” of votes of American Indians, Hispanics, and Blacks to be discarded.
In addition to the ballot collection case, other ballot issues, including satellite voting locations for tribal reservations, witness signature requirements, and redistricting, are percolating, said Jacqueline De Leon, a voting rights litigator for the Native American Rights Fund.
Another area of interest for tribes is gaming. Galbraith said the practice has gotten a number of client calls on the topic.
“It’s been forced to the forefront by the closing of brick-and-mortar casinos,” said Galbraith. Most tribes have worked it out for now, but there are looming clashes as online sports betting is becoming more ubiquitous.
“Certainly, you will see more advocacy and litigation as tribes focus more on such betting,” he said.