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

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