Tribes Take Note! Department of Interior is making moves (and they can benefit you!)

By Anna Hohag | anna.hohag@procopio.com

In the recent span of 30 days, the Department of Interior and the Biden Administration announced no less than 7 key policy proposals that can greatly benefit you to provide your Tribe’s input. The following is a brief overview of these moves, with links to the sources. Each of these items will be addressed in more detail here in the future, but for now, you have been informed!

1.                  Joint Secretarial Order 3403

Recognizing that the Interior and USDA will benefit by incorporating Tribal expertise and Indigenous knowledge into Federal land and resources management, the departments are urging Tribes to submit Tribal proposals and ideas on how to best manage the millions of acres of Federal lands and water that were previously owned and managed by Indian Tribes. Last November, the Interior and USDA issued Order No. 3403 a “Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters.”

2.                  Tribal Treaty Database

In a collaboration between the Interior and Oklahoma State University, USDA is developing and regularly updating a tribal treaty rights database to better understand and fulfill treaty rights obligations. During the 2021 White House Tribal Nations Summit, President Biden announced that the Interior and 16 other federal agencies formally committed to protecting Tribal treaty rights in agency policymaking and regulatory processes, formalized in the “Memorandum of Understanding regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights.” Tribes whose treaties contain federal promises that have gone unperformed are encouraged to contact the USDA Tribal Relations team.

3.                  Buy Indian Act Regulations

The BIA announced new regulations to improve implementation of the Buy Indian Act to promote economic development opportunities in Indian Country. This Act allows the Interior to set aside certain opportunities for Indian-owned and controlled businesses, and seeks to: eliminate barriers to Indian Economic Enterprises (IEEs) from competing on certain construction contracts, expand IEEs’ ability to subcontract construction work consistent with other socio-economic set-aside programs, and give greater preference to IEEs when a deviation from the Buy Indian Act is necessary. These regulations also align with the Indian Health Service providing consistency and streamlining the procurement procedures for Native-owned businesses.

4.                  Indian Affairs Appeals Regulations

The Interior also announced the forthcoming release of a proposed rule governing Appeals from Administrative Actions at 25 C.F.R. Part 2, to include when and how the Assistant Secretary – Indian Affairs (AS-IA) will take jurisdiction over an Interior Board of Indian Affairs (IBIA) action. Tribes should keep an eye out for these forthcoming updates.

5.                  Fee to Trust Regulations & Gaming Compact Regulations

On March 28, 2022 the AS-IA announced Tribal consultation sessions regarding draft amendments to the regulations governing both the fee-to-trust process and Class III gaming compacts. The proposed changes to the fee-to-trust regulations at 25 C.F.R. Part 151 are intended to clarify the Secretary’s authority to take land into trust for Tribes, reduce processing time, and establish clear decisions-making criteria, with a special focus on taking land into trust for conservation purposes. The proposed changes would build on Secretary’s Order 3400 re-delegating the authority to review and approve applications to place land into trust to the BIA regional directors. The proposed changes to the Class III gaming compact regulations at 25 C.F.R. Part 293 are intended to provide clarity on the criteria the Interior will consider when deciding whether to approve compacts by clarifying boundaries of allowable topics of negotiation, better defining key terms, and clearly outlining when the Interior must review a gaming compact.

The Department will conduct four virtual consultation sessions between May 9 and May 23 and will accept oral and written comments. Written comments should be submitted to consultation@bia.gov by 11:59 pm ET on Thursday, June 30, 2022.

6.                  Tribal Water Codes

On April 7, 2022 Secretary Haaland rescinded a nearly 50-year old moratorium on the federal approval of Tribal water codes, restoring Tribal authority to adopt water laws to regulate water use on their own lands. Tribes should keep an eye out for more information on upcoming Tribal consultations on this important issue!

7.                  Tribal Energy Development Organizations

Finally, the Interior announced its approval of the first ever Tribal Energy Development Organization (TEDO) issued to the Red Lake Band of Chippewa Indians. This makes the Tribe the first to receive such approval and will support the Tribe’s effort to develop renewable energy resources. TEDOs provide an avenue to reclaim Tribal authority by allowing Tribes to enter into and manage energy-related leases, rights-of-way and business agreements without obtaining the burdensome BIA approval for each individual lease, right-of-way, or agreement.

We encourage any Tribes, Tribal Organizations, or Native-Owned Businesses wishing to learn more about these potential opportunities to reach out to one of the many experienced attorneys in the Native American Practice Group here at Procopio. We look forward to working with you and all the potential growth for Tribes under this Indigenous-led team at the Interior and beyond!

Anna Hohag advises Tribal governments and Tribal entities on a wide variety of issues including Native American governance, intergovernmental agreements, natural and cultural resources, environmental and land use issues, housing, education, general welfare, economic development and gaming matters in Indian country. Her practice primarily focuses on Native American governments and tribal land issues, including land and natural resource planning, board governance, and tribal law and policy development.

Five Tips for Tribal Employers to Reduce Liability

Employment law claims have been on the rise as employers grapple with changes in the workforce due to the COVID-19 pandemic. Tribes act as employers in various capacities. Procopio Associate Racheal M. White Hawk has written an article for tribal gaming operators, outlining five tips to help reduce their employment law liability. You can read the article here and contact Racheal at racheal.whitehawk@procopio.com or 619.906.5654 to learn more.

Tips for Preventing and Addressing Ransomware Attacks at Your Government or Casino

Frederick K. Taylor | Partner | fred.taylor@procopio.com

Ransomware is a particularly nasty breed of malicious software which, once downloaded and executed, will encrypt files and bar access to a wide array of computer systems. Tribal entities can be particularly attractive targets for ransomware attacks because of their operations of both governmental entities and casino operations.

In March 2018, the City of Atlanta was hit by a ransomware attack that seized its digital infrastructure and ground vital services to a halt. The court systems, water department and police department were all impacted. Police officers had to file paper reports for days after the initial attack. The attackers initially demanded over $50,000 in Bitcoin payments. The city refused to pay the ransom, but eventually paid over $6 million for recovery and upgrade costs, and may eventually have spent over $17 million.

Earlier this year, slot machines at several casinos from Louisiana to Oklahoma appear to have been the target of possible ransomware attacks that also showed that the attackers had access to a wide range of their operations. A computer analyst stated to Computer Business Review magazine that “[i]f someone wants to hack a casino, it’s surprisingly easy. . . they don’t segregate their networks properly, you’ll be able to interact with all kinds of machines, from the slot machines to even the card shufflers and camera systems.”

Accordingly, it is especially important for Tribal entities to protect and prepare themselves for such attacks. Here are a few things that can be done on the front end to prevent such attacks:

• Keep all operating systems and programs up-to-date (especially making sure that the latest security patches are installed).
• Back up data in a secure and recoverable manner (and stress test the backups to ensure that you can retrieve your data!).
• Limit access to sensitive data to employees for whom access is critical to operations
• Perform cybersecurity review and risk assessments, including penetration testing every six months.
• Evaluate what systems are most critical to protect from distributed denial of service attacks (DDoS).
• Train employees on security awareness stressing the importance of strong passwords and avoiding clicking on attachments/links in emails.
• Establish relationships with cybersecurity lawyers and local law enforcement cybersecurity divisions.
• Speak with your insurance broker about whether cybersecurity and ransomware attacks are appropriately covered.

If your organization is unfortunate and is hit with a ransomware attack, here are some of the important things you’ll want to do:

• Contact law enforcement, your insurance broker, your cybersecurity counsel and a computer forensics consultant.
• Secure your backup data and make sure it has not been compromised; you can then consider taking your backup data offline to ensure its safety.
• Determine the extent of the intrusion and isolate the data that has been impacted.
• Require “proof of life”; you want to ensure that the attacker actually has the ability to retrieve your data. In many cases, attackers have acquired a piece of ransomware that they don’t know how to operate.
• Hire an experienced ransomware negotiator if necessary to navigate through the possibility and execution of paying the ransom; you should also be consulting with your insurance broker, counsel and law enforcement in this process

Overall, the best offense is a good defense. With proper planning upfront, you can greatly reduce the probability of a ransomware attack. But, if you are attacked, remain calm and implement a plan which considers the tips mentioned above.

 

Frederick K. Taylor is a Co-Leader of Procopio’s Privacy and Cybersecurity practice group and a member of its Native American Law practice group. Fred represents clients in a wide variety of industries including high technology, Internet and electronic commerce, financial institutions, chemical companies, public entities and Native American tribes. His practice focuses on litigation in the areas of intellectual property, financial institutions, complex commercial disputes, environment enforcement defense and Native American issues. He can be reached at 619.515.3279 or at fred.taylor@procopio.com.

Business Interruption Insurance Coverage: What Tribal Governments Need to Know

Have you checked your insurance policy lately? You may have a claim for business interruption coverage due to COVID-19.

Such claims should be vigorously pursued. Tribal businesses and casinos are key to Tribal governments as they provide vital revenue for government services such as healthcare, education and public safety.

If you have yet to review your policy, we encourage you to do so, and also to watch our complimentary webinar below, which discusses best practices when handling your possible COVID-19 insurance claim. You can find a full collection of articles and webinar recordings regarding COVID-19 on our website at Procopio.com/COVID19.

Procopio Welcomes Indian Gaming Attorney Glenn Feldman

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com
Kerry K. Patterson | Partner | kerry.patterson@procopio.com

As we enter a new decade, Procopio’s Native American Practice will be providing enhanced capabilities to assist tribes in economic development activities and tribal governmental functions with the addition of Glenn Feldman, whose Federal Indian Law practice spans over 4 decades. Glenn’s practice is devoted exclusively to Federal Indian Law, with heavy emphasis on tribal governments, Indian gaming and reservation economic development activities, including over $2 billion in casino financing transactions. He provides counsel to a number of Indian tribes, tribal casinos and tribal business ventures in Arizona, California and other western states. Glenn provides decades of experience in drafting tribal codes and ordinances, and negotiating tribal-state gaming compacts in California, Arizona, Wisconsin, Kansas and Oklahoma.

Glenn pioneered the rights of Tribes to develop gaming on Tribal lands and successfully defended this right throughout the southwest. In 1986, Glenn successfully argued the California v. Cabazon Band of Mission Indians case before the United States Supreme Court, which overturned the existing laws restricting gaming on Indian reservations. Congress responded to the Cabazon case by enacting the Indian Gaming Regulatory Act—the federal law which has led to the national proliferation of Tribal gaming enterprises. He has been rated in the Best Lawyers in America since 2005 and four times has been named Lawyer of the Year in Native American Law, Phoenix, including for 2020.

In addition to being a giant in the industry with a ground-breaking history in his law practice, Glenn is one of the warmest persons we could imagine working with. There is a reason his clients have stayed with him for decades—in addition to his productive results, his Tribal clients find him a sage counselor. We are thrilled to be able to work alongside such a giant in the Indian Gaming law industry, and introducing him to Procopio’s Native American Law community.

Glenn can be contacted at glenn.feldman@procopio.com and 619.906.5689, and review his bio on Procopio’s website.

Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

 

 

Kerry Patterson is a Partner in Procopio’s Native American Practice Group. Connect with Kerry at kerry.patterson@procopio.com and 619.515.3298.