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State Indian law needs on the rise

Recent and not so recent developments regarding Indian Law in Wisconsin have raised several questions about trends in tribes’ legal representation.

The last five years have seen a concerted effort by Wisconsin’s state and tribal courts to collaborate on jurisdictional conflicts evidenced by protocols established in the 9th and 10th Districts.

“Certainly the Wisconsin Supreme Court is on the right track in acknowledging tribal law,” stated Jeffrey A. Crawford, Forest County Potawatomi Community attorney general. “Where there is lacking is in the understanding of tribal law among most practitioners.”

A few private law firms in the state, including von Briesen & Roper S.C. and Godfrey & Kahn, S.C. in Milwaukee have established and expanded their practices to focus on Indian Law issues.

“It’s certainly and important area of law in this state,” said attorney Thomas P. Gehl of von Briesen & Roper. “There are a number of issues that we deal with, like housing development, air and water laws and gaming.”

According to an Indian Law attorney at Godfrey & Kahn, Indian gaming has boomed in the last decade-plus and been a catalyst for the majority of legal guidance requested by tribes.

“Gaming is important because it is the engine that provides for the progress,” said attorney Brian L. Pierson, head of the Indian Law practice at Godfrey & Kahn, “A very small portion of our practice deals directly with casino issues. Most of our interests are a result of what the gaming industry provides to tribes.”

Funding of economic development, affordable housing, health care, and treaty rights are several off-shoots generated by gaming.

But with revenues continuing to rise, tribes are rapidly expanding their interests and Crawford questions if the attorney supply is meeting the legal demand.

“Nationally, Indian gaming is a $23 billion a year industry and increasing at a double digit rate each year, so there is a continuing need for representation,” said Crawford. “As tribes develop resources, there is an increasing desire for knowledgeable lawyers.”

Figures released by the National Indian Gaming Commission on July 12 revealed that the region which includes the Midwest and the Plains saw 2005 profits of nearly $4 billion, up from $3.1 billion five years ago.

In Wisconsin, Indian gambling generated $1.2 billion in sales last year.

Crawford also noted that necessity for more tribal assistance from general counsel could be on the horizon, but he did not see Wisconsin’s level of involvement on par with other Midwestern states.

“I anticipate hiring of general counsel, in-house attorneys, and outside counsel will increase nationally,” said Crawford. “I’ve been to Minnesota where they have between six to a dozen law firms with Indian Law expertise, but Wisconsin is not at that level yet.”

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Godfrey & Kahn, S.C.

Wisconsin Court System

Gehl concurred with the assessment that Indian Law issues have grown in number and complexity, but could not speculate as to how well firms have kept up with the growth.

“It’s tough to say how much expansion there has been by firms into Indian Law, simply because it seems if you aren’t already involved, it’s tough to get into it,” said Gehl. “It’s a relationship business to a great extent and making contacts is key in getting established.”

Pierson, who chaired the Indian Law practice at von Briesen & Roper before joining Godfrey & Kahn in January, has spent the better part of a decade bolstering his relationships among Wisconsin tribes.

The time invested has been rewarded with a state roster of 15 Indian Law attorneys at Godfrey & Kahn, including the recent addition of John S. Swimmer who served as the Mille Lacs Bands of Chippewa Tribe’s solicitor general.

“There are tremendous assets that come with having Native American attorneys on staff because they have the cultural knowledge needed and their participation sends a message of commitment to other tribes,” said Pierson. “I think a lot of firms have a casual interest in Indian Law, hoping to represent big projects, but it’s time consuming and often firms aren’t willing to invest in the trade-off.

Jack Zemlicka can be reached by email.

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