Posted by Michelle Miano.

On November 9, 2022, BKSW was honored to host the University of New Mexico School of Law Tribal Law Journal for a listening session of the Brackeen v. Haaland oral argument before the U.S. Supreme Court.  Students, professors, attorneys and paralegals listened for over three hours as the justices inquired about the Indian Child Welfare Act, 25 U.S.C. §§ 1901-63 (“ICWA”), the power of Congress to enact such legislation, the effect of equal protection when addressing Indian Tribes, and whether ICWA improperly imposes requirements on the states.  After oral argument, the group discussed their impressions of the arguments and the effectiveness of the advocates’ responses to questions from the Supreme Court Justices.

In support of ICWA, Michelle Miano of BKSW was counsel of record for amicus curiae Stanford Law School Professor Gregory Ablavsky before the U.S. Supreme Court, as well as in the panel and en banc proceedings before the U.S. Court of Appeals for the Fifth Circuit.  Professor Ablavsky illuminated the history of the early federal government’s relationship with Indian Tribes and described how the revisionist argument for state authority lacks evidence.  A copy of Professor Ablavsky’s brief before the U.S. Supreme Court is available here.  Prior to the listening session, Michelle provided an overview of the case and applicable laws as a guest lecturer with students working on the Tribal Law Journal. BKSW will be watching closely to see what the U.S. Supreme Court justices decide.

Posted by Veronique Richardson.

On October 7, 2022, the Pueblo of Santa Ana publicly announced its partnership with Tesla, Inc. to open a 35,000 sf sales, service and delivery facility including charging stations on the Pueblo of Santa Ana. The Santa Ana Pueblo Tesla facility is slated to open to the public in May 2023. This is Tesla’s second location in the State of New Mexico and first facility of this size on Indian lands. The Project is the culmination of the Pueblo’s efforts to create groundbreaking business development opportunities motivated and informed by their history and cultural values.

The EV seed was first planted for the Pueblo in April 2021 when Tamaya Ventures Inc., a section 17 corporation wholly owned by the Pueblo of Santa Ana, leased warehouse space to Tesla on Pueblo of Santa Ana lands. Rooting one portion of its operations on Santa Ana Pueblo lands offered the Pueblo the opportunity to cultivate a long-term relationship with Tesla, and by June 2021, Tamaya Ventures’ and Tesla’s partnership blossomed into the future 35,000 sf facility.

The Tamayame, the Santa Ana people, are governed by a traditional form of government, appointing Governors and traditional leadership annually. Santa Ana Pueblo traditions and customs are still practiced today and while discussions related to history, culture and tradition are not always integral to closing business transactions, it was important for the Pueblo to demonstrate that this “deal” was more than a short-term business transaction – it was important for the future of Tamayame.  Not only does the Pueblo of Santa Ana-Tesla partnership diversify the Pueblo’s economic development portfolio, but the Partnership is creating education opportunities through Tesla’s START training program.  The education and workforce development opportunities the Tesla START program provides for career development, not just jobs for tribal members.  In addition, the career opportunities that are being created allow Santa Ana tribal members to have a career-work-life balance that allows them to remain in their home community.

Vital to the success of the Project was the Pueblo of Santa Ana’s efforts to secure a change in New Mexico’s tax laws during the 2022 30-day legislative session to recognize state tax credits for vehicles purchased on tribal lands. This legislative change not only allows the Pueblo to create a new revenue stream by establishing its own excise tax but opens the door for all Pueblos and Tribes in New Mexico to pursue similar economic development opportunities.

Barnhouse Keegan Solimon & West was honored and privileged to represent Tamaya Ventures Inc. in negotiations with Tesla. It is clients like Tamaya Ventures, Inc. whose outside-the-box thinking and commitment to economic development that is tied to the values of the Pueblo who make our work fulfilling.

Please join us for the State Bar of New Mexico Indian Law Section’s annual 2022 Indian Law Institute CLE. We are very excited to have two Barnhouse Keegan Solimon & West LLP (“BKSW”) attorneys present on great topics and share their expertise. The 2022 Indian Law Institute CLE will be held on Thursday November 3, 2022 from 8:30 a.m. to 4:45 p.m. in-person at the State Bar of New Mexico or via webcast. Register Below!

Senior Associate, Michelle Miano’s CLE presentation is entitled, “Restoring Places”: Current Opportunities for Incorporating Indigeneity into the National Park System. Join Ms. Miano as she presents ways to navigate the complex and differing statutes and regulations governing the management of national park lands to serve Tribal interests.

Ms. Miano’s presentation will occur from 1:30 p.m. – 2:30 p.m.

Associate, Jesse Heibel, and Patrick Schaefer from the New Mexico Regulation and Licensing Department will present on Ethics Surrounding Federal Law and Tribes as Federal Entities in Regard to Cannabis in Indian Country. Jesse and Patrick will discuss how to represent cannabis clients, while maintaining and adhering to the Rules of Professional Conduct, and the unique issues presented when Tribes seek to regulate or enter the cannabis industry.

Mr. Heibel’s presentation will occur from 3:45 p.m. – 4:45 p.m.

To register and attend this program in-person, click here.

To register and attend via webcast, click here.

Register by November 2, 2022 at 9:00 a.m.

Please join us, and we hope to see you there!

Posted by Tierra Marks and Michelle Miano.

Many of our tribal clients have a long history of entrepreneurship and for centuries, have participated in large and complex trading networks exchanging goods, establishing social ties, and engaging in trade as part of their tradition and tribal culture. The federal government recognized the significance of commerce in relations between tribal nations in the early years of the United States and ensured its own exclusive relationship with tribes through the Indian Commerce Clause of the United States Constitution and other federal statutes.

Today, there are strong federal laws and policies that embrace tribal economic independence and recognize tribal sovereign rights to move goods to and from tribal lands. See Native American Business Development, Trade Promotion, and Tourism Act, 25 U.S.C. § 4301(a)(4) (confirming the right of tribes to enter into contracts and trade freely as “consistent with the principles of inherent Tribal sovereignty.”). These economic activities are a core element of tribal self-governance. See Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 5301(a)(2).

Despite these federal laws and policies, tribal nations, tribally-owned businesses, and tribal members often find themselves challenged by extraterritorial taxation and regulatory authority asserted by states and their political subdivisions.

Our firm has worked for decades with our clients on efforts to oppose state tax and regulatory encroachment into tribal economic activity.  In the past year alone, we submitted two “friend of the court” briefs to the United States Supreme Court supporting challenges to state taxation on tribal lands. These briefs were filed on behalf of the Inter-Tribal Trade Consortium, which is a group of tribes, tribal corporations and tribal members working to secure the historic right of tribes to trade with each other and develop their own tribal land, territory, and reservation-based economies free of improper regulation by the states and other entities. See Brief for Flandreau Santee Sioux Tribe, Twenty-Nine Palms Band of Mission Indians, et al. as Amicus Curiae Supporting Petitioners, Big Sandy Rancheria Enterprises v. Bonta, No. 19-16777 (Dec. 6, 2021) (arguing centrality of intertribal trade to indigenous economics and culture); see Brief for the Twenty-Nine Palms Band of Mission Indians, the Fort Independence Tribe of Paiute Indians, et al. as Amicus Curiae Supporting Petitioners, Albrecht, et al. v. Riverside County, No. 21-1298 (April 21, 2022) (arguing authority of tribal governments to tax non-Indians on privileges derived from tribal lands). We are also assisting clients at the federal legislative level to ensure that inter-tribal trade is considered as new legislation is being developed.

BKSW is committed to protecting and promoting economic development and markets on tribal lands, territories, and reservations. Our work and client base reflects these commitments.

If you are a tribe, tribal corporation and/or tribal member and would like to learn more about the Inter-Tribal Trade Consortium, please reach out to Jesse Heibel at jheibel@indiancountrylaw.com.