LaPena Law Corporation - Practice Areas

The LaPena Law Corporation concentrates on all aspects of Indian law, tribal governmental, and economic development issues.

Economic Development on Indian Lands

In providing legal services for tribally-based economic development projects, LaPena Law Corporation can participate in all strategic legal, economic, and development planning that is required, including consideration of tribal, state and federal issues that might arise. These typically include advice, counseling, negotiation and representation in the following areas:

Negotiation of tribal-state compacts;
The selection of the project site, including jurisdictional, fee-to-trust, and development issues under tribal, state and federal law;
The impact of tribal, local, state and federal land use and environmental laws and policies;
Regulatory issues, including the preparation tribal ordinances, tribal commission policies and procedures and related issues;
Preparation of appropriate development agreements, including architectural and engineering agreements, general contractor agreements, sovereign immunity limitations, bid documents, standards and procedures, and liability;
Preparation of applicable consulting and management contracts for various aspects of the project; and
Rendering formal legal opinions to meet lender and others’ requirements.

Land Use Planning and Environmental Law

The LaPena Law Corporation advises tribal clients in environmental law, both with respect to new construction and tribal gaming compact compliance. This advice involves application of tribal, state and federal environmental laws including the National Environmental Protection Act and the California Environmental Quality Act. In order to effectively advise tribal clients on environmental issues, LaPena Law Corporation attorneys provide advice, counseling, negotiation, and representation in the following areas:

Tracking federal resource agency rulemaking and policy-making that impacts tribal land use, protection and access;
Monitoring proposed legislation and analyzing its potential impact on tribal rights;
Briefing agencies, legislative and congressional staff to increase awareness and obtain support of decision-makers;
Maintaining relationships with key local, state and federal decision makers; and
Defending legal challenges to tribal development projects under CEQA and NEPA.

Indian Gaming and Finance

Casino Development. In providing legal services for tribal gaming projects, including raising capital and soliciting management services for such projects, the attorneys of LaPena Law Corporation are prepared to assist in all strategic legal, economic, and development planning that a tribe may required, including consideration of all tribal, state and federal issues that might arise. These typically include advice, counseling, negotiation and representation in the following areas:

Negotiation of tribal-state compacts, including legislative ratification and federal approval;
Implementation of California Tribal-State Compacts, including on-going communications with the California Gambling Control Commission, National Indian Gaming Commission and the Office of the Governor;
The selection of the project site, including jurisdictional, fee-to-trust, and development issues under tribal, state and federal law, and the availability of gaming on specific portions of the land under IGRA;
The impact of tribal, local, state and federal land use and environmental laws and policies;
Drafting and negotiation of intergovernmental agreements;
Gaming regulatory issues, including the preparation of gaming ordinances, tribal gaming commission policies and procedures and related issues;
Entity selection and formation to facilitate financing and to protect tribal assets and sovereign rights;
Preparation of appropriate development agreements, including architectural and engineering agreements, general contractor agreements, sovereign immunity limitations, bid documents, standards and procedures, and liability;
Preparation of consulting and management contracts for a project; and
Rendering formal legal opinions to meet lender and others’ requirements.

Gaming Commissions. She has served as a trainer for the National Indian Gaming Association and has provided ongoing legal services to many Tribal Gaming Agencies in western and midwestern states. In this capacity they have advised tribal gaming commissions regarding the development and implementation of internal controls, preparation and submission for approval of tribal gaming ordinances, development of commission policies and procedures and incorporation of statewide gaming regulations reviewed by the Association created by the 1999 tribal-state compacts.

Land Into Trust and Land Acquisition

The land into trust process has many aspects-- from drafting and submitting tribal resolutions and the application, to compliance with the National Environmental Protection Act, to briefing agencies, legislative and congressional staff to get their support, to defending an appeal of the final agency decision. Michelle LaPena has handled all aspects of the process and has a record of success with fee to trust applications in California.

In some instances, a Tribe may decide that it seeks to acquire rights in off-reservation lands for economic or other purposes. LaPena Law Corporation attorneys have successfully represented Tribal governments and tribal non-profit entities in acquiring off-reservation lands in fee, negotiating cultural preservation easements and in establishing living trusts for Indian families to protect off-reservation investments.

Tribal Tax Policy and Practice

The LaPena Law Corporation can structure tribal Revenue Allocation Plans and other tribal programs for utilizing gaming revenues to ensure that need-based programs are available to tribal members, as well as draft requests for private letter rulings from the Internal Revenue Service where clarification may be needed. In addition to her in-depth understanding of inherent tribal sovereignty and tribal tax policy, Michelle LaPena has ongoing interaction with the California Board of Equalization and helped develop and implement a state use tax exemption for sales of food and beverages on Indian lands.

Cultural Resource Protection

State and Federal Law Implementation. As a leader in the development of state and federal cultural preservation laws, Michelle LaPena can advise tribal governments regarding the implementation of those laws. Consideration of all tribal, state and federal issues that might arise can require advice, counseling, negotiation and representation in the following areas:

Negotiation of cultural resource protection and tribal monitoring agreements;
State general planning process participation including consultation with local governments, developing mitigation agreements, and identifying preservation issues under tribal, state and federal law;
Developing protocols for effective consultation between tribal and local governments during the general planning process;
Compliance with and implementation of the Native American Graves Protection and Repatriation Act;
Determining the applicability of tribal, local, state and federal land use and environmental laws and policies on a particular site or development; and
Where no other option is feasible, litigation based on state or federal law violations during the planning and development process.

SB 18 and AB 52 – New California General Planning Laws. In addition to providing the legal services necessary for productive consultation and preservation of cultural resources, Ms. LaPena serves as a trainer in SB 18 and AB 52 seminars sponsored by various entities and the Governor’s Office of Planning and Research.

Indian Child Welfare

The future of Indian Tribes and Nations depends upon the success of our future generations. An important role of Indian Tribes is to ensure that the Indian Child Welfare Act (ICWA) is properly implemented by State Courts. Michelle LaPena has represented many California Indian tribes to establish ICWA policies and forms, to establish tribal standards for placement of tribal children and to enforce tribal placement preferences in State Courts. As a representative on the Governor's Children's Justice Act Task Force, Michelle advocates for tribal court funding and development of protocols between tribal and local governments to implement the ICWA more effectively.