The international law firm Kilpatrick Townsend is expanding its portfolio in Indian Country with the addition of former U.S. Acting Assistant Secretary for Indian Affair Larry Roberts, Oneida Nation, and former U.S. Permanent Representative to the United Nations Human Rights Council Keith Harper, Cherokee Nation of Oklahoma, to its already impressive Native American Affairs Team.
Roberts served as acting head of Indian Affairs and Principal Deputy Assistant Secretary at the Department of Interior beginning in 2015, with oversight of the Bureau of Indian Affairs, Bureau of Indian Education, Office of Indian Gaming, and Office of Indian Energy and Economic Development. He served for six years in the Obama administration and prior to that was an attorney at the U.S. EPA and a trial attorney in the Indian Resources Section of the U.S. Department of Justice. He joined Kilpatrick Townsend’s Litigation Department in the Washington, D.C., office in April.
As class counsel with Kilpatrick Townsend, Harper represented the 500,000 individual plaintiffs in the landmark Indian trust fund lawsuit, Cobell v. Salazar, which was settled in 2009 for $3.4 billion. Prior to his appointment to the U.N. in 2014, he served in other capacities in the Obama administration. He was Senior Staff Attorney for NARF from 1995 to 2006. He served as a justice on the Supreme Court of the Poarch Band of Creek Indians from 2007 to 2008, and from 2001 to 2007 as an appellate justice on the Mashantucket Pequot Tribal Court. Harper rejoined Kilpatrick Townsend in February.
Roberts and Harper talked to ICMN about their work and some of the challenges tribal leaders will face.
Why did you pick this firm from among all the offers you must have had?
Roberts: I’ve always been impressed with the legal representation that Kilpatrick has provided tribal clients and with the folks here, including Catherine Munson, who is managing partner of the D.C. office, Keith Harper, Venus Prince, [Poarch Band of Creek Indians] and Charlie Galbraith [Navajo]. Kilpatrick has a policy of always representing tribal interests on issues and that was very appealing.
Harper: Soon after the election I decided I would be going back to the private sector and I had discussions with a couple of different shops, but for similar reasons as Larry’s, Kilpatrick seemed to be the right fit. It’s a firm that I worked at prior to my government service and it is one in which at its core there is governing philosophy of how to represent tribes which is that the tribes have to be in the driver’s seat and really the role of an advocate, a lawyer, is simply to provide the best legal counsel and as many options as possible to achieve the objective as defined by the tribe itself.
Since the election, there has been a lot of concern about where this administration stands on tribal issues. What do you see as the most important issues tribes are going to be litigating in the next few years?
Harper: Certainly there are going to be issues, as there traditionally are, around use of land and natural resources, whether that’s water rights, or development of natural resources or who gets to decide what kind of development occurs on Indian lands, or lands near Indian lands, as we saw up in North Dakota – issues regarding the power of tribes to decide their own destiny. There’s already some concern regarding land into trust and some unfortunate language has been used by some administration officials that may be a harbinger for a more challenging environment regarding Indian lands.
Roberts: I do see issues in terms of how do we fully effectuate tribal self-determination. Tribal leadership across the country has steadily moved forward in that regard and I think it’s going to be vitally important that tribes maintain and assert their rights, their reserved rights to protect the health and welfare of their citizens, whether that’s restoration of tribal homelands or exercising their sovereign authorities to tax and to pre-empt other taxation. Those are all going to be very important moving forward.
Can you talk about any cases that you’re working on that have particular national significance?
Harper: We don’t want to talk about specific clients, but I would say in the area of water rights, for example, we’re litigating some important cases. Fishing rights as well. And again, land into trust is an area of focus, especially when you have tribes that have a very limited land base. It’s hard to be a sovereign without land. Ensuring that they have a land base that’s sufficient for purposes of making it a homeland for a people is critical.
What are some of the cases that you worked on in the past that you think are most significant?
Harper: I litigated for many years the Cobell case that was ultimately settled in 2009. It was — it will always be — a great honor to have worked for and with Elouise Cobell who was a true champion of Indian country whose perseverance and strength led to what I think is by all accounts a huge victory for Indian country.
Roberts: My time at the Department of Justice was one of the most compelling areas of case law that I’ve been able to work on where I’ve been able to basically represent the United States on behalf of tribes on a number of issues. I worked with the tribes in Michigan on treaty fishing and hunting rights litigation. I worked with the Skokomish Tribe in terms of unlawful condemnation of their tribal lands. At the Department of Justice I worked on representing the federal agencies where the federal trust relationship and trust interests were aligned with tribal interests.
What would you say about the current Department of Justice?
Roberts: My hope is that the current administration is going to follow some of the things that [Interior] Sec. [Ryan] Zinke has publicly said, which is that he supports tribal self-determination. I think this administration has a real opportunity to join with Indian country to promote tribal rights. I think they’re still filling in their team so it’s a little too early to tell but I think there’s been mixed messages coming out of the administration concerning the tribes. My hope is that there are a lot of important cases out there that are making their way through the legal system that the Justice Department and the Interior Department should be continuing to stand with Indian country.
What are some of those cases?
Roberts: There is affirmative litigation that the United States brought with the Tulalip Tribes in the Pacific Northwest on the state and local taxation of activities on tribal lands. That’s a case that the United States has supported. My hope is that they continue to support that litigation because it’s important and because it’s fundamentally promoting and recognizing the tribal rights to govern their lands. There are other cases where the United States is bringing water rights claims on behalf of tribes. The United States just settled the Blackfeet water rights claims and that was very important. There are a lot of other pending water litigation out there that hopefully will come to settlement.
Harper: There is a matter that is not litigation, but I do want to mention it, and that is in the fall of last year, due to leadership spearheaded by Vice President [Joe] Biden, the North American Leaders Summit, which is basically the United States, Mexico and Canada agreed to a robust program to collectively work on addressing violence against indigenous women and girls. This was led by both the then U.S. Attorney General and the justice administrations in the two countries. It is such a critical issue; it is such a scourge internationally and in virtually all places where indigenous communities are. It is my hope that this kind of initiative and leadership will continue in the new administration.
What else should people know?
Harper: This practice group represents Indian tribes because the people who are part of this group care deeply about tribal communities. We see real opportunities to strengthen those communities by providing the highest caliber legal representation and counsel there is. And we are very gratified to have the tribal clients that we do because they have extraordinary vision. They see what the future for our children and grandchildren should look like. It’s our job to aid them in achieving and realizing that vision. So to me it’s an exciting time in Indian country.
Roberts: Well said. I’m not sure that I can add a whole lot other than I will say that tribal leadership’s focus is on Native youth and there’s nothing more important and there’s nothing more inspiring than our Native youth. The work that Keith and I and other folks at the firm are doing is all for future generations, whether it’s restoring tribal homelands or making sure that tribal sovereignty is respected. It’s all about the future generations and that’s what keeps me inspired about the work that we do.