Volume 18, Number 2 • November/December 2008
Our mini-theme: Native AmericaCulture, Business and the Law
The law is a system that provides social cohesion while at the same time revealing much about our culture in a nation of many people and customs. In this issue, we celebrate the Native peoples of our nation, which include Native Americans, Alaska Natives, and Native Hawaiians.
Few of us have had the opportunity to develop a deep understanding of the people who have lived for centuries in the places we now call home. The articles in this issue are written by lawyers who are part of Native communities and provide unique insight into the interplay between America's federal, state, and tribal laws.
Our next program - 12/10/08
Deal or No Deal? Transacting in Native America
In this issueDeal or no deal?
Understanding Indian Country transactions
If you do deals, sooner or later you will find yourself in Indian Country. The numbers are staggering: tribes generate over $25 billion in revenue from gaming alone and are diversifying their economic activity through entrepreneurial inroads as varied as manufacturing, agriculture, real estate development, telecommunications, and banking. But successful transactions in Indian Country (defined as reservation, dependent Indian community, and allotment lands), require either a profound understanding of the particular complexities of Indian law at play within and beyond Indian reservations, or sheer luck.
Encouraging business with Indian tribes
A brief discussion of the tribal exhaustion doctrine
Indian tribes occupy a unique status under our law. They are domestic dependent nations that exercise inherent sovereign authority over their members and their lands similar to that of states and foreign governments. They have the power to make their own substantive law on internal matters and to enforce that law in their own forums. They are, in effect, little (sometimes big) self-governing countries located within the United States
Tribal courts and alternative dispute resolution
Mediated settlements and arbitration awards in tribal court
Picture one of your clients walking through the door with a signed contract with an American Indian tribe or sub-entity. The contract contains a mediation or arbitration clause that appears to require tribal court enforcement. What law and process might you expect going forward?
Avoiding trouble in paradise
Understanding Hawai`i's law and indigenous culture
Whether you are a Kanaka Maoli (Native Hawaiian) whose ancestors have inhabited these islands since time immemorial or a first-time visitor, it doesn't take long to understand that things in Hawai`i are unique. The law is no exception. The sooner one understands Hawai`i's indigenous culture and legal framework, the easier things areespecially for those interested in doing business in Hawai`i. As the examples below demonstrate, although Hawai`i is now subject to U.S. jurisdiction, assuming that Hawai`i's law and culture mirror that of the continental United States is inaccurate, dangerous, and can lead to costly business consequences.
ALSO IN THIS ISSUELawyers' service on nonprofit boards
Managing the risks of an important community activity
At some point in your career, a local charity, church, or other nonprofit will ask you to serve on its board. This can be an important way to become more involved in your community. Since most nonprofits have limited resources, they may expect a lawyer/director to provide some form of legal services on a pro bono basis. As a result, although many lawyers join boards with different intentions, they often provide some type of legal services to nonprofits.
Nobody looks good in orange
Keeping your client and yourself out of prison
Criminal defense attorneys usually get called in to clean up a mess that's already been createdour client has allegedly committed a crime and has either been charged or soon will be. Often, we would like to say: "You should have called me before you did thatI would have advised you not to do it!" Unfortunately, few make that early phone call to counsel.
Avoiding successor tax liability in a sale of business assets
Protecting the purchaser's interests
A company that purchases the assets of another company does not expect to acquire the existing tax or creditor obligations of its seller. In fact, the asset purchase transaction is designed to avoid the transfer of obligations that is a recognized feature in a purchase of company stock. State governments, however, have developed laws designed to assess derivative liability on purchasers of business assets where the seller is delinquent in certain state taxes at the time of the sale.
Cutting to the "document review" chase
Managing a document review in litigation and investigations
Document review is often seen as the unwanted and unappreciated, but necessary, activity of the discovery process. Those legal professionals who must engage in document review often feel as if they are hastily thrown into the middle of a data jungle, with only the most rudimentary instructions for working themselves out of that jungle. On the other hand, those who manage document reviews often believe that the document reviewers fail to grasp their larger role in the case.
The Last Laugh