Current Developments in Federal Indian Law Cosponsored by the Indian Law Section Friday, September 15, 2017 9 a.m.–5 p.m. 6.5 General CLE or Access to Justice credits CURRENT DEVELOPMENTS IN FEDERAL INDIAN LAW SECTION PLANNERS Diana Jean Bettles, Attorney at Law, Klamath Falls, OR Diane Henkels, Attorney at Law, Newport, OR Nathan Karman, Oregon Department of Justice, Portland, OR Stephen Kelly, NW Natural, Portland, OR Douglas MacCourt, Senior Counsel, Rosette LLP, Washington, DC Holly Partridge, The Confederated Tribes of the Grand Ronde Community of Oregon, Grand Ronde, OR Suzanne Trujillo, Office of Legislative Counsel, Salem, OR Cathern Tufts, Attorney at Law, Siletz, OR Jessie Young, Department of the Interior, Office of the Regional Solicitor, Portland, OR OREGON STATE BAR INDIAN LAW SECTION EXECUTIVE COMMITTEE Diane Henkels, Chair Nathan A. Karman, Chair-Elect Anthony Stephen Broadman, Past Chair Jessie D. Young, Treasurer Todd Albert, Secretary Kristy Kay Barrett Diana Jean Bettles Jennifer Biesack Sarah Rose Dandurand Stephen P. Kelly Douglas C. MacCourt Holly Ray Partridge Stephanie L. Striffler Patrick Sullivan Cathern E. Tufts Kristen L. Winemiller The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2017 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Current Developments in Federal Indian Law ii TABLE OF CONTENTS Schedule . v Faculty . vii 1A. Federal Indian Case Law and Legislative Update . 1A–i — The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, New Mexico 1B. Oregon Legislative Update . 1B–i — The Honorable Benjamin Souede, Multnomah County Circuit Court, Portland, Oregon 2A. Indian Child Welfare Act and the 2016 Regulations—Presentation Slides . 2A–i — Brent Leonhard, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton, Oregon 2B. OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA) . 2B–i — Amie Fender, Oregon Department of Human Services, Salem, Oregon — Emily Hawkins, Oregon Department of Human Services, Salem, Oregon 3A. Current Developments in Tribal Energy—Presentation Slides. 3A–i — Douglas MacCourt, Senior Counsel, Rosette LLP, Washington, DC 3B. Evolution of Federal Agency Tribal Policies and Programs . 3B–i — Bodie Shaw, Deputy Regional Director—Trust Services, Northwest Regional Office, Bureau of Indian Affairs, Portland, Oregon 3C. U.S. Department of the Interior Office of the Solicitor—Presentation Slides . 3C–i — Eric Shepard, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior, Washington, DC 4A. Water Rights—The Klamath Experience—Presentation Slides. 4A–i — David Gover, Native American Rights Foundation (NARF), Boulder, Colorado 4B. Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission . 4B–i — Rob Lothrop, Columbia River Inter-Tribal Fish Commission, Portland, Oregon 4C. Tribes as Government Stakeholders: Tribal Participation in Off-Reservation Environmental Cleanups Under CERCLA. 4C–i — Tom Zeilman, Law Offices of Thomas Zeilman, Yakima, Washington 5A. Tribal Economic Development—Marijuana. 5A–i — Howard Arnett, Karnopp Petersen LLP, Bend, Oregon 5B. Economic Development: Energy, Environment, Partnership, Infrastructure, and Utility—Presentation Slides . 5B–i — Direlle Calica, Kanim Associates LLC, Portland, Oregon 5C. Creating Economies on Indian Reservations . 5C–i — Professor Robert Miller, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, Arizona 6. The SHIFT: Tribal Sovereignty and Peacemaking Courts—Presentation Slides . 6–i — The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, New Mexico 7. Diversity Update . 7–i — Diane Henkels, Attorney at Law, Newport, Oregon — Jonathan Puente, Director of Diversity and Inclusion, Oregon State Bar, Tigard, Oregon Current Developments in Federal Indian Law iii Current Developments in Federal Indian Law iv SCHEDULE 8:00 Registration 9:00 Federal Indian Case Law and Legislative Update F Recent key federal and tribal court cases F Oregon legislative update The Honorable Benjamin Souede, Multnomah County Circuit Court, Portland, OR The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, NM 10:00 Indian Child Welfare Act: Principles and Latest Developments Amie Fender, Oregon Department of Human Services, Salem, OR Emily Hawkins, Oregon Department of Human Services, Salem, OR Brent Leonhard, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton, OR 11:00 Break 11:15 Evolution of Federal Agency Tribal Policies and Programs Douglas MacCourt, Senior Counsel, Rosette LLP, Rosette LLP, Washington, DC Bodie Shaw, Deputy Regional Director—Trust Services, Northwest Regional Office, Bureau of Indian Affairs, Portland, OR Eric Shepard, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior, Washington, DC 12:15 Lunch 1:15 Tribes as Stakeholders F Klamath Basin water rights issues F Tribal participation in energy siting projects F Tribal participation through CERCLA David Gover, Native American Rights Foundation (NARF), Boulder, CO Rob Lothrop, Columbia River Inter-Tribal Fish Commission, Portland, OR Tom Zeilman, Law Offices of Thomas Zeilman, Yakima, WA 2:15 Tribal Economic Development F Energy F Economic development for the seventh generation F Economic development at Warm Springs Howard Arnett, Karnopp Petersen LLP, Bend, OR Direlle Calica, Kanim Associates LLC, Portland, OR Professor Robert Miller, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, AZ 3:15 Break 3:30 Tribal Courts 2017 and Beyond: An Update on Developments in Tribal Courts in Oregon and Nationally Moderator: Stephanie Striffler, Oregon Department of Justice, Portland, OR The Honorable Calvin Gantenbein, Chief Judge, Siletz Tribal Court, Siletz, OR The Honorable Lisa Lomas, Associate Judge, Confederated Tribes of Warm Springs, OR The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, NM Current Developments in Federal Indian Law v SCHEDULE (Continued) 4:30 Diversity Update Diane Henkels, Attorney at Law, Newport, OR Jonathan Puente, Director of Diversity and Inclusion, Oregon State Bar, Tigard, OR 5:00 Adjourn Current Developments in Federal Indian Law vi FACULTY Howard Arnett, Karnopp Petersen LLP, Bend, OR. Mr. Arnett concentrates his practice in the area of federal Indian law, representing the Confederated Tribes of the Warm Springs Reservation of Oregon and other tribes on matters involving treaty rights, tribal sovereignty, tribal law development, government-to- government relations, and gaming. He also has expertise in civil litigation and appellate practice. He is statewide cochair of the Lawyers’ Campaign for Equal Justice. Mr. Arnett is an adjunct professor at the University of Oregon School of Law, where he teaches the survey course on American Indian Law and advanced seminars on Tribal Law and Tribal Courts, Contemporary Issues in American Indian Law, and Comparative Law of Indigenous Peoples. He previously was an adjunct professor at Lewis and Clark Law School. He has served as a member of the Oregon State Board of Bar Examiners and the Bar Examiners’ Review Board, lawyers’ representative to the Ninth Circuit Judicial Conference, and president of the Oregon Law Foundation Board. He is a past member of the Oregon State Bar Appellate Practice Section, Indian Law Section, and Legal Services Program executive committees. Mr. Arnett is admitted to practice in Oregon and Arizona and before the United States Supreme Court and the Navajo Nation Supreme Court. Direlle Calica, Kanim Associates LLC, Portland, OR. Ms. Calica focuses her practice on federal Indian law, business law, and natural resource law. She has extensive professional experience in intergovernmental affairs, hydro system planning related to tribes, environmental entrepreneurship, and tribal energy policy. Ms. Calica is the Director of the Institute for Tribal Government Center for Public Service at Portland State University and the Tribal Energy Advisor to the Affiliated Tribes of Northwest Indians Energy Program. She is a member of the Washington State Bar Association Environmental Law Section, the Northwest Energy Coalition Board of Directors, and Our Native American Business & Entrepreneur Network. She has served an Adjunct Professor of Law in the Indian Law Program at Lewis and Clark Law School. She is admitted to practice in Washington. Ms. Calica is a citizen of the Confederated Tribes of Warm Springs and is of Warm Springs, Wasco, Yakama, Molalla, and Snoqualamie tribal descent. The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, NM. Justice Fairbanks works in the area of Indian law as an attorney and tribal court of appeals justice. Her practice and consultation services concentrate on tribal-state relations, personnel, tribal courts, peacemaking (and family conferencing), mediation, family, school, educational, and indigenous law. She serves as a justice for the Inter-Tribal Court of Appeals for Nevada and is a Code of Federal Regulations Appellate Magistrate. Justice Fairbanks is a member of the National American Indian Court Judges Association,