© 2015 Kilpatrick Townsend November 5-6, 2015 Tribal In-House Counsel Association Inaugural...

© 2015 Kilpatrick TownsendNovember 5-6, 2015

Tribal In-House Counsel AssociationInaugural ConferenceKeynote Address

Venus McGhee Prince

Top 10 Lessons Learned from My In-House Experience

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1. If you are the top legal official for your tribe, you can’t avoid the politics. Just be mindful and smart regarding them.

You will be the scapegoat. Try to be sure you are part of the decision.

Always couch your advice in terms of what is best for the tribe, not individual components.

Dress the part. Insulate your attorneys from the politics.


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2. If you don’t already have it, persuade Tribal Council to provide you with primary control over the hiring of outside counsel, at least up to a certain budgetary level.

Capture your authority in an ordinance or policy.

Make sure your outside counsel understands your role and reports back to you even if Council or management is calling them directly.


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3. Fight to keep the legal department or management of legal services centralized.

Make sure some type of corporate governance document requires your input/approval for all legal matters within the Tribe.


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4. Make ethics a part of the entire Tribe’s culture.

Establish standards of conduct that run throughout the tribal organization via ordinance if possible.

Have an independent Board.Conduct trainings for officials and

employees.Outsource the handling of ethics issues to

the extent you can.


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5. Set up internal, regularly scheduled meetings for senior management of tribal government and/or other arms of the tribe.

This communication can be key to providing the best overall legal advice.

A unified professional team can keep Council focused productively on issues.


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6. Lobby for risk management personnel and awareness somewhere within the tribal organization.

Brokers have a fee interest; internal risk managers can help you to assess the best interests of the tribe.

Insurance can save the tribes millions of dollars in defense costs and ultimate liability.


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7. Establish and support a records management system and tribal archives.

Propose a records management ordinance that applies to the entire tribal organization.

Get your Tribal Council Secretary invested in it.


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8. Use sovereign immunity wisely in all litigation.

Even if it is available as a defense, it is sometimes better to settle certain types of claims.

Be mindful of the “classic bad facts make bad law” situation, not just for your tribe but potentially all tribes.


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9. Stay aware of your tribe’s governmental relations efforts, even if not under your umbrella.

These efforts can impact your overall legal advice and strategy.

You can keep lobbyists in check and be Tribal Council’s confidante on these matters as well.


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10.Get your tribal law in order.

Prioritize the codification of your tribal laws and policies (including legislative history)—outsource if necessary.

This project is not always a priority of Tribal Council, but it increases the Tribe’s overall credibility—from judicial capacity to public perception.

Having well-organized and updated tribal laws and procedures would avoid or help with almost all of the above issues.

Top 5 Insights from My Experience as Deputy Solicitor

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1. Solicitor’s Office is not necessarily anti-Indian.

Many career folks within Solicitor’s Office, are pro-tribal and take the trust responsibility seriously.

Even the Trust Litigation Office, which defends against trust claims made by Tribes, will push internally within DOI and with DOJ for settlement if the claims are determined to have merit.


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2. DOJ is generally pro-tribal, but institutionally conservative.

ENRD has some great career attorneys who support tribal causes and are willing to push the envelope.

SG’s office can be pro-tribal, but will place the “consistency of the US position” above all else.


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3. Make it easy for DOI (and DOJ if necessary) to support your position.

Solicitor’s Office is truly capacity-challenged, so provide them a synthesized package of all information and arguments that you don’t mind being public if disclosure requested.

Engage DOI and DOJ early and often regarding any litigation requests.

Be selective and smart about outside counsel that you engage to represent you in front of Interior and other federal agencies because the use of too much “political influence” can be detrimental to your Tribe’s cause.


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4. Try not to create a Regional/DC headquarters turf war if your issue is appropriately before the Region.

The regional decision-makers who handle many of your issues are career employees who view DC as being politically-driven and not objective.

DC inquiries can and do prompt many regions to act more quickly, but DC politicals must be careful not to go against normal procedure and protocol.

Keep DC officials and employees informed, but try to work through your Regional Director and Regional Solicitor unless you have truly reached a roadblock.


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5. Build relationships with the attorneys in your local Solicitor’s Office and the DC Solicitor’s Office.

You provide critical “on the ground” perspective that can motivate the attorneys to focus on your issues.

Many of the career attorneys will be around for a long time to come.

© 2015 Kilpatrick Townsend November 5-6, 2015 Tribal In-House Counsel Association Inaugural...

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