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Indian Nations Law Update - December 2010

December 09, 2010

Godfrey & Kahn First Law Firm to Achieve "Green Tier" Status

The Milwaukee office of Godfrey & Kahn has become the first law firm to join Wisconsin's "Green Tier," a Department of Natural Resources program that rewards environmentally responsible businesses. The measures that Godfrey & Kahn has adopted includes purchasing only Energy Star technology, setting all electronic displays to go to sleep when inactive, eliminating paper in all internal communication, converting to a paperless filing system, using bike messengers for downtown package deliveries and offering transportation subsidies to employees who use buses or car pools. "We are extremely proud to be the first Wisconsin law firm to join the Green Tier program," said Rick Bliss, managing partner of Godfrey & Kahn, in a statement. "We will continue to focus on implementing innovative green energy and sustainable practices throughout the firm, as we believe these actions will make us more efficient for the benefit of our clients and communities." The achievement was recognized by DNR Secretary Matt Frank and Milwaukee Mayor Tom Barrett at a celebration ceremony at City Hall on December 9.

Godfrey & Kahn's Indian Nations Law and Environment & Energy Strategies Practice Groups assist tribes in taking advantage of funding sources for the "greening" of tribal governmental and enterprise facilities. For more information, contact Brian Pierson at (414) 287-9456 or

Congress Approves Settlement of Cobell Class Action

On November 19 the Senate approved the Claims Resolution Act, H.R. 4783, funding the settlement of the long-running class action suit, Cobell v. Salazar. House approval followed on November 30. President Obama is expected to sign it into law. Settlement of the Cobell suit was reached a year ago, but Congress had been unwilling to approve it due to concerns over the funding of the settlement and criticism of some of its provisions. The lawsuit began in 1996 when the plaintiffs, Indian owners of interests in trust lands, sued in the United States District Court for the District of Columbia, alleging that the federal government breached its trust responsibility, mismanaged trust lands and mismanaged individual Indian money accounts holding revenue from trust lands. The settlement establishes a $1.4 billion fund to distribute funds to class members as compensation for historical accounting claims and establishes a $2 billion fund for the purchase and consolidation of highly fractionated land interests.

U.S. Department of Justice Formally Establishes Office of Tribal Justice

By an order issued November 10, Attorney General Eric Holder has implemented Section 214 of the recently enacted Tribal Law and Order Act, Pub. L. 111-211, by formally establishing an Office of Tribal Justice (OTJ). The Attorney General named Tracy Toulou, a former federal prosecutor, OTJ Director. The OTJ was originally established by the Attorney General in 1995 as a discretionary office but now has a statutory mandate [75 Fed. Reg. 70122 (November 17, 2010)]. The functions of OTJ include:

(1) serve as the program and legal policy advisor to the Attorney General with respect to the treaty and trust relationship between the United States and Indian tribes;
(2) serve as the department's initial and ongoing point of contact, and as the department's principal liaison, for federally recognized tribal governments and tribal organizations;
(3) coordinate the department's activities, policies, and positions relating to Indian tribes, including the treaty and trust relationship between the United States and Indian tribes;
(4) ensure that the department and its components work with Indian tribes on a government-to-government basis;
(5) collaborate with federal and other government agencies to promote consistent, informed government-wide policies, operations, and initiatives related to Indian tribes;
(6) serve as a clearinghouse for coordination among the various components of the department on federal Indian law issues, and with other federal agencies on the development of policy or federal litigation positions involving Indians and Indian tribes;
(7) coordinate with each component of the department to ensure that each component of the department has an accountable process to ensure meaningful and timely consultation with tribal leaders in the development of regulatory policies and other actions that affect the trust responsibility of the United States to Indian tribes, any tribal treaty provision, the status of Indian tribes as sovereign governments, or any other tribal interest;
(8) ensure that the consultation process of each component of the department is consistent with Executive Order 13175 and with the department's consultation policy;
(9) serve, through its director, as the official responsible for implementing the department's tribal consultation policy and for certifying compliance with Executive Order 13175 to the Office of Management and Budget.

Treasury Department Extends Deadline for Tribal Economic Development Bonds

As part of the American Recovery and Reinvestment Act of 2009 (ARRA), Congress amended the Tribal Governmental Tax Status Act to authorize the Secretary of the Treasury, in consultation with the Secretary of the Interior, to allocate to tribes up to $2 billion for Tribal Economic Development Bonds (TEDBs). Section 1402 of the ARRA expands tribes' permissible uses of governmental bonds and, for the first time, permits tribes to issue private activity bonds. The Treasury Department has announced that the deadline for issuance of TEDBs, initially set for December 31, 2010, has been extended to June 30, 2011 for any tribe that received a first tranche allocation. An additional extension of six months, to December 31, 2011, can be obtained by submitting a written request to the IRS by March 31, 2011. The deadline for issuance of second tranche TEDBs and TEDBs issued as Build America Bonds remains January 1, 2011.

Tribes can issue TEDBs to finance a wide variety of projects that the IRS had previously considered beyond the scope of tribal bond authority, such as convention centers, golf courses, sports facilities, hotels, restaurants, water parks, entertainment facilities and marinas. The entire $2 billion appropriated by Congress under the ARRA has been allocated. See July 2009 and December 2009 Updates. Tribes remain free to issue bonds for essential governmental functions under pre-ARRA authority. Godfrey & Kahn works with tribes to take advantage of all federal, state and private sources of financing to achieve economic development goals. For more information, contact Brian Pierson at (414) 287-9456 or


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