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A Notable Law Firm For Native American Litigation

The late Browning Pipestem called Native American attorneys that advocate for tribal rights “briefcase warriors;” a title Professor Rennard Strickland built upon to say these advocates “used law to help shape an economic and political revolution which has drawn tribes into the courts as well as the congress to address the full range of Native issues.”[1]

The Whitten Burrage Indian law group shares that purpose.

Our firm focuses on Native American law and represents tribes in tribal, state and federal courts. Whitten Burrage prides itself on providing the highest quality representation to tribes both because it is simply our standard for any client and because most of our Indian law practice group comes from Indian Country. Co-founder of Whitten Burrage, Judge Michael Burrage, was born in the Choctaw Nation Reservation and was the first Native American (Choctaw) appointed the President of the United States and confirmed by the United States Senate to serve as a federal judge. Judge Burrage currently serves as the Constitutionally appointed General Counsel to the Choctaw Nation of Oklahoma, continuing the legal counsel he has provided to the Choctaw Nation since the 1970s (interrupted only by his service on the federal bench).

In addition to the Choctaw Nation, our Indian law group provides counsel to the Chickasaw Nation and, more recently, the Quapaw Nation. Our most recent tribal clients for litigation purposes include the Choctaw Nation, Chickasaw Nation, Quapaw Nation, Cherokee Nation, Muscogee Nation, Fort Sill Apache Tribe, Iowa Tribe, and the Kickapoo Tribe.

Advocates for Sovereignty in Litigation

When tribes are considering retaining legal counsel, they should always inquire about the attorney’s or firm’s understanding of the doctrines of federal Indian law and ask prospective counsel about the Marshall trilogy (the seminal cases in federal Indian law), sovereign immunity, the jurisdiction of tribal courts (Montana and its progeny), the legal exposure of tribal officials (Lewis and its progeny), and, of course, the continued existence of Reservations in Oklahoma (McGirt). And always go one step further: Has your prospective counsel actually utilized these principals in litigation or are they merely aware of them?

The truth is that when tribes retain attorneys that do not specialize in this field, they risk leaving solid legal defenses or valid claims on the table. That is not a risk at Whitten Burrage. Our Indian law group regularly utilizes federal Indian law—the legal principles established since the Treaty and Indian Commerce Clauses were placed within the United States Constitution—that govern federally recognized tribes and their property in the courtroom. Consequently, we regularly end litigation against tribes in its earliest stages and maximize monetary recovery at every opportunity. Unlike other firms, our Indian law practice group has a proven track record in court, with several attorneys certified in American Indian law by the University of Oklahoma College of Law.

A few of our tribal litigation accomplishments include:

Kiamichi Water Basin Litigation

For example, our Native American law group was an integral part of the legal team that represented the Choctaw Nation and Chickasaw Nation against the state of Oklahoma in preserving treaty rights pertaining to the reservation of water. More specifically, Michael Burrage utilized the Nations’ treaties from the 1800s in conjunction with the principles of federal Indian law to protect the Nations’ water. Instead of being wrongfully deprived of the water promised as part of the agreements leading to the Trail of Tears, Judge Burrage negotiated an agreement between the State of Oklahoma and the Nations that ensured the Nations could provide the State with water. Further, the tribes of Oklahoma are the greatest advocates for local communities across the State regardless of tribal membership. While the Nations could have taken a hardline stance on their water rights, an agreement was reached to assist all Oklahoma citizens—while ensuring the Nations could dictate the terms of that use.

Stolen Timber and Just Results

Our Indian law group was a part of the team that also represented the Nations in a nine-year legal battle involving 1.3 million acres of valuable timberlands. The Choctaw and Chickasaw Nations pursued an accounting of the sale or disposition of the timberlands by the Department of the Interior. Not every firm is equipped to sue the United States. Thanks to the leadership of Judge Burrage and Reggie Whitten, this lengthy case ended with a favorable settlement for these Nations of $186,000,000.00.

Trespass of Tribally Owned Lands

One of the greatest horrors in the attempted destruction of Native Americans is the massive loss of land that occurred from colonization. Even today, people and entities wrongfully use and trespass tribal lands for their own profits. Whether it is the theft of timber, misappropriation of water, boundary disputes, or pipeline operations without authorization, Whitten Burrage will take those wrong-doers to task. Most recently, our Indian law group has engaged in litigation with Enable Midstream and Hiland Partners, alleging those companies were operating pipelines in violation of federal law.

Federal Indian Law in State Court

There is a rumor among attorneys that dabble in Indian law that tribes cannot succeed in state court litigation. Undeniably, there is a long history of state courts being directly involved in the wrongful taking of tribal property, but recently, our Indian law group has found success when forced to litigate in state court proceedings. We have successfully raised sovereign immunity and tribal court jurisdiction to state court judges as a basis to dismiss lawsuits brought against tribal representatives. And there are a few instances where it is strategic to file an action in state court to adjudicate tribal matters, such as avoiding fights about jurisdiction with a non-tribal party to expedite an obvious just result. Simply put, we feel comfortable raising these arguments in state court.

Keeping Indian Families Together

When requested by a tribe, our Indian law group has been involved in numerous cases involving the federal Indian Child Welfare Act and Oklahoma’s Indian Child Welfare Act. Our attorneys have both prevented wrongful adoptions away from Indian families as well as facilitating open adoptions to ensure Indian children have access to their tribes and culture.  Attorneys at Whitten Burrage work with various tribes on a case-by-case basis, but we are always open to hearing from others who need legal counsel from our accomplished attorneys.

Tribal Government Consultation

Our legal group consistently protects Native interests in many ways. Outside of the courtroom, we:

  • Assist in tribal election processes and parliamentarian services,
  • Draft and revise tribal constitutions and codes,
  • Advise tribal leaders with confidential legal risk analysis,
  • Consult on the structures and process of arms of the tribe, such as tribal court administration and process and establishment of committees,
  • Provide judicial technical training to tribal courts, and,
  • Litigate questions related to sovereign immunity.

Welcoming Leaders From Tribal Governments And Businesses

We would be happy to meet with any tribal leaders or tribal business executives to discuss potential services we can provide. Our goals and passions are to expand, maintain and protect treaty rights and sovereignty of the American indigenous groups.

To reach our law office in Oklahoma City, call 888-801-8682 or send a message. We will respond promptly.

[1] Peter d’Errico, What Makes a Brief Case Warrior (Sep. 26, 2016) available at https://www.academia.edu/ 28767199/ What_Makes_a_Briefcase_Warrior.

View Transcript

counsel for the choctaws when I

graduated from Law School in 1974.

and except for the time that I spent on

the bench

I’ve been general counsel and

represented the Choctaw Nation and the

Chickasaw Nation and have also performed

work for other tribes such as the

Cherokee Nation the Muskogee creeks and

so forth you’ve got to get the tribes to

have a basic understanding with regard

to sovereignty

when to exercise the sovereignty don’t

overplay it and

that’s achieved by meeting with the

tribal councils the chief the the

executive officers and and training them

and trying to instill the concept in

them that even though they are

sovereignty they have to work with other

sovereigns such as cities such as

counties such as states such as the

United States so all of that takes place

outside of the courtroom the education

process with regard to sovereignty what

it means and when to exercise it