Webcast

The Power of Tribal Eminent: What to Do When Native American Nations Find Non-Indian Companies in Trespass and ‘Take’ Private Property

Streams live on Monday, July 20, 2020 at 02:15pm EDT

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Course Information

Time 60 Minutes
Difficulty Intermediate

Course Description

The United States Constitution recognizes four sovereigns: The United States (or Federal) government; the several States; foreign States (today usually called foreign nations or countries); and Indian tribes. Tribes predate the Constitution and retain their inherent sovereign powers of self-governance unless restricted by Federal law. One such sovereign prerogative is the power of eminent domain, or condemnation, by which Native American and Alaska Native tribes may take private property without owners’ consent provided that just compensation is paid.

Especially in recent years, a growing number of Native American tribes and nations have used their inherent powers of eminent domain against non-Indian companies and individuals living and working on tribes’ reservations. In a high-profile case featured in The Wall Street Journal and internationally, the Hualapai Nation of Arizona enacted and retroactively applied its own eminent domain law to “take” the Grand Canyon Skywalk, a popular tourist attraction consisting of a resort complex with a glass-viewing platform more than 4,000 feet above the floor of the Grand Canyon that was originally built as joint venture between the Tribe and the late David Jin, an entrepreneur from Las Vegas. Under his contract with the Tribe, Jin built the Skywalk at his own expense of $30 million and had the right to operate the Skywalk concession and transportation business for 32 years and split the profits with the Tribe. That contractual arrangement ended when armed representatives of the Tribe appeared at the Skywalk, took control of the complex, and sent Jin’s employees back to Las Vegas on buses. Using the new law, the Tribe sued Jin’s company and retroactively claimed ownership and control of his intangible legal rights under the contract.  While the Skywalk dispute ended in Federal court litigation leading to a confidential settlement, the controversy called attention to other recent efforts by tribes to capitalize and expand their own oil and gas, utility and other tribal companies through the retroactive application of tribal eminent domain and trespass laws. This includes tribes’ assertive use of tribal court trespass actions. In some instances, tribes have sought to renegotiate right-of-way easement consent agreements on Indian reservation lands to require non-Indian companies sell or transfer some or all of their pipelines, transmission lines, telecommunications systems and other private facilities to the tribe or tribal entities.  For their part, some tribes have argued that non-Indian companies – assisted by the Federal government – have historically paid less than fair-market compensation when locating on those same reservation lands in the first place.

This program, presented by experienced practitioner Troy Eid, will examine the legal basis and scope of Native American tribal trespass and eminent domain powers.


Learning Objectives:

  1. Examine the legal basis and scope of Native American tribal trespass and eminent domain powers

  2. Analyze The Grand Canyon Skywalk case and other recent examples of tribes’ condemnation of, or use of tribal trespass law against, non-Indians’ property located on tribes’ reservation lands

  3. Identify effective strategies for addressing tribes’ use of trespass and eminent domain laws against non-Indian companies – with the goal of seeking mutual commercial advantage

Credit Information

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Faculty

Troy Eid

Greenberg Traurig LLP

Troy A. Eid is a nationally known legal expert on environmental enforcement, investigations and compliance, energy and natural resource development, and Federal Indian law and Native American and Alaska Native tribal law. A former United States Attorney who has served both Republican and Democratic Presidential administrations, and a past state cabinet officer for the State of Colorado, Troy is a trusted public figure in the Rocky Mountain West and Washington, DC, and a familiar face in many federal, state and tribal courtrooms across the country.

Troy, who first joined the firm in 2003, co-founded and co-chairs Greenberg Traurig’s American Indian Law Practice Group, one of the largest and highest-rated legal teams in the United States. A principal shareholder with Greenberg Traurig's Denver office, Troy practices at the trial and appellate level. He has successfully defended clients in some of the largest and highest-profile environmental enforcement actions ever filed by U.S. Department of Justice under the Clean Water Act and other federal laws, as well as in grand jury proceedings. Troy is also frequently sought as a mediator and arbitrator, especially in cases involving Indian tribes and tribal enterprises.

An experienced legal project manager, Troy has coordinated various inter-disciplinary legal and consulting teams in numerous large-scale energy infrastructure projects, including natural gas pipelines, transmission lines, highways and railroads. He specializes in civil and criminal investigations involving petroleum-related leaks and spills, uranium contamination, hazardous waste pollution, asbestos, and other environmental and workplace safety matters, as well as health care and hospital-related regulatory, permitting and compliance projects. Troy is also a recognized authority on Native American cultural resource protection and related government-to-government consultation between tribes and the federal government under the National Historic Preservation Act, National Environmental Policy Act, and other laws.

Troy is well-respected on both sides of the aisle for his professional knowledge and expertise, especially as it relates to energy, natural resource, criminal justice, and other legal and public policy matters concerning the American West.

He served as Colorado’s United States Attorney from 2006-09, appointed by President George W. Bush. From 2010-14, Troy was elected to chair the Indian Law and Order Commission (ILOC), an independent national advisory board created by the Tribal Law and Order Act to advise President Obama and Congress on public safety improvements for all 566 federally recognized Native American and Alaska Native tribes and nations. The ILOC’s landmark 2013 report, A Roadmap for Making Native America Safer, proposes the most sweeping criminal justice reforms in Federal Indian law and policy since the New Deal. Endorsed by the American Bar Association, the ILOC’s Roadmap helped lead to the enactment of the Violence Against Women Act Amendments recognizing tribes’ criminal jurisdiction to prosecute non-Indian perpetrators in domestic violence cases.

A recipient of the Navajo Nation Bar Association’s Member of the Year Award, Troy grew up in Colorado and graduated from Stanford University and the University of Chicago Law School. He clerked for Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. He has been recognized for distinguished public service by the Federal Bureau of Investigation, the U.S. Secret Service, the Drug Enforcement Administration, and other federal and state law enforcement agencies. He was also recognized by Law Week Colorado as Colorado Lawyer of Year for representing the seller of the HealthOne hospital system in Colorado, the largest hospital-related transaction ever in the Rocky Mountain West. 

A regular contributor to the national edition of Native American Law360 and other Law360 publications, Troy teaches energy, natural resources, environmental and Federal Indian law as an Adjunct Professor of Law at the University of Denver-Sturm College of Law. He currently serves as an At-Large Member on the Tribal Issues Advisory Board of the United States Sentencing Commission, an independent agency within the Federal judiciary that is assessing the impact of the Federal Sentencing Guidelines in criminal convictions involving Native Americans and Alaska Natives.