Phil Katzen’s Retirement from Law Practice

Phil Katzen, who founded the firm, with Riyaz Kanji in 2000, has retired from the Washington State Bar Association. He will continue to assist the firm in a consultant capacity on administrative and other matters.

Phil has had a long legal career dedicated to protecting, enforcing, and upholding Tribes’ treaty rights, first at the Native American Project at Evergreen Legal Services (known today as Columbia Legal Services) and later at Kanji & Katzen. Phil spent over three decades of his career working to secure and implement Tribes’ treaty right to take a fair share of shellfish from public and private property in United States v. Washington, the long-running treaty fishing rights case. His involvement with the case started with a memorandum on the Tribes’ shellfish treaty right in 1979. He subsequently represented the Tribes in multi-year negotiations with the State of Washington regarding this treaty right throughout the 1980s, represented the Tribes in litigation to secure this right in the 1990s, and represented the Tribes during implementation of the shellfish treaty right after it was established by the Court.

Phil is known in the Indian Law bar for his commanding knowledge of the law surrounding treaty rights in Washington, his strategic mind, and his generous mentoring of less-experienced attorneys. The firm is fortunate that Phil will continue in a consultant role.

Phil looks forward to serving the firm in his new capacity. He is also excited to continue to spend time with his new grandchild, to play pickleball with his wife and community, and to serve on the board for various nonprofits.

Kanji & Katzen Named 2021 “Native American Law Firm of the Year”

Kanji & Katzen P.L.L.C. is honored to have been named “Native American Law Firm of the Year” for 2021 by Chambers USA.  Chambers notes that “the firm receives universal acclaim, with clients describing the lawyers as ‘among the finest Indian Law practitioners in the country.’”

In addition to being awarded “Native American Law Firm of the Year,” Kanji & Katzen is  again  ranked as a top tier (Band 1) Indian law firm, sharing this honor with only three other firms in the United States.  The firm is described as “an exceptional group of legal minds.  Their strengths are strategizing, dedication to their craft, and passion for their clients.”  Clients attest that “the team is top-notch.  They work well together and are tremendously collaborative, both internally and with clients and co-counsel,” and that one of the firm’s strengths is that “they only take cases that will either benefit all tribes or not hurt other tribes.”

Kanji & Katzen attorneys again received individual nationwide rankings.  Peers describe Riyaz Kanji as “the best litigator in Indian country.  He is a fine individual, confident diplomat, and is kind and considerate.”  Others note that he “is one of the finest lawyers I have worked with.  He is brilliant and relentless for his clients while remaining an absolute pleasure to deal with.”

Cory Albright is described as a “thorough, thoughtful, and very diligent” attorney whose “work and contributions [are] exceptional.” David Giampetroni is described as a “brilliant lawyer” who is “very passionate about his work” and “a very eloquent writer, dedicated researcher, and exceptional strategist.”

All of the attorneys at Kanji & Katzen bring a commitment to ethics, excellence, and creativity, and work tirelessly on behalf of our tribal clients and Indian country at large.  We are honored to be recognized by Chambers USA and to have the privilege of serving Indian nations on issues of vital importance.

D.C. Circuit Confirms that Only Federally Recognized Indian Tribes and Alaska Native Villages Are Entitled to COVID-19 Emergency Relief Funds

On September 25, 2020, the Court of the Appeals for the D.C. Circuit held that state-chartered Alaska Native Corporations (ANCs) are not “Indian Tribes” eligible to share in the $8 billion reserved in the CARES Act for Tribal Governments to fight the COVID-19 pandemic. The Court explained that ANCs do not satisfy the “terms of art denoting federal recognition of a sovereign Indian tribe”— they do not maintain a government-to-government relationship with the United States, and they are not “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Therefore, the approximately $500 million in emergency funding set aside by the Department of the Treasury for ANCs must be distributed to federally recognized Indian Tribes and Alaska Native Villages to support essential governmental services. Kanji & Katzen, P.L.L.C. represents the lead Plaintiffs: Confederated Tribes of the Chehalis Reservation, Tulalip Tribes, Houlton Band of Maliseet Indians, Akiak Native Community, Asa’carsarmiut Tribe, and Aleut Community of St. Paul Island.

The Opinion is here:

U.S. Supreme Court Issues Landmark Decisions Recognizing the Historic Boundaries of the Muscogee Creek Reservation

On July 9, 2020, the Supreme Court decided McGirt v. Oklahoma, No. 18-9526 and Sharp v. Murphy, No. 17-1107, affirming that the Muscogee (Creek) Nation’s historic Reservation boundaries were never diminished by Congress and accordingly remain in force to this day. Kanji & Katzen, P.L.L.C., was honored to represent the Muscogee (Creek) Nation as amicus curiae in both matters, through multiple rounds of briefing and oral argument at the Supreme Court.

These decisions are a testament to the strength and persistence the Creek Nation has demonstrated throughout its history. We are grateful for the Court’s careful explication of a period of that history in which the Nation and its citizens suffered so much, and for the Court’s resounding affirmation of the principle that promises made by the United States to the Indian Nations are meant to be kept, and that the Court will vindicate those promises regardless of dire and misplaced predictions about the consequences of doing so. As the Court stated:

“The federal government promised the Creek a reservation in perpetuity…. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right….

Because Congress has not said otherwise, we hold the government to its word.”

The opinion is Here.

Press Coverage:

Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma-NYT

Supreme Court Tribal Treaty Decision Praised as Game Changer -Bloomberg Law

Supreme Court says eastern half of Oklahoma is Native American land -CNBC

Supreme Court Ruling ‘Reaffirmed’ Sovereignty – ICT

Justices rule swath of Oklahoma remains tribal reservation – AP

The McGirt Case is a Historic Win for Tribes -The Atlantic

For Oklahoma Tribe, Vindication at Long Last -NYT

Neil Gorsuch Affirms That Treaties With Tribal Nations Are the Law  – The New Republic

How Native Tribes Started Winning at the Supreme Court  – Mother Jones

Project Bolsters Tribes’ High Court Claims Following Defeats

source: Jordan S. Rubin

When he argues this spring at the U.S. Supreme Court that Oklahoma couldn’t prosecute an American Indian for rape committed on Indian land, former acting U.S. solicitor general Ian Gershengorn will have widespread backing from Indian interests by way of the Tribal Supreme Court Project.

The issue at the heart of Muscogee (Creek) Nation member Jimcy McGirt’s appeal has profound implications for tribal jurisdiction and sovereignty that extend beyond matters of crime and punishment: Whether Congress “disestablished” the tribe’s 19th century boundaries and, in turn, whether large swaths of Oklahoma fall under tribal or state control.

The justices failed to answer the question last term in Creek member Patrick Murphy’s murder case, apparently deadlocking 4-4 due to the recusal of Justice Neil Gorsuch, who previously sat on the Tenth Circuit when Murphy’s appeal was pending there.

Now with the full court free to hear McGirt’s case, which comes from Oklahoma state court, it can finally put to rest the question with implications not just for the Creek but for other tribes as well.

Those stakes put the case right in the wheelhouse of the Project, which was formed two decades ago, in the face of several defeats in the high court’s 2000-01 term, with the mindset that one tribe’s loss could negatively impact others. The Project is run by the National Congress of American Indians and the Native American Rights Fund.

Inspired by states’ approach to bolstering government interests, it provides coordination and support for tribal issues at the high court, harnessing a vast network including subject matter experts and big name Supreme Court practitioners like Jenner & Block’s Gershengorn.

“It had become very clear with these decisions in 2001 that the court was not with the tribes anymore. It was a national emergency,” NARF executive director John Echohawk said.

Pay Attention

The Supreme Court heard five American Indian law cases in its 2000-01 term.

“Four of them were defeats for the tribes,” recalled Indian law attorney Riyaz Kanji, who clerked for the now-retired Supreme Justice David Souter in the 1994-95 term.

He pointed, for example, to Nevada v. Hicks and Atkinson Trading Co. v. Shirley, cases that “really had broad importance” and “got the attention of tribal leaders.”

Those cases limited tribes’ jurisdiction and taxing power—in their eyes, further limiting their sovereignty.

State Inspiration

After the term, tribal leaders called a meeting in Washington, D.C., and that’s when the Project was born.

It’s modeled after a similar group formed to help states protect their interests at the Supreme Court, said Kanji.

When he was clerking at the Supreme Court in the mid-90s, he said he heard “from a number of the justices” that “the quality of state advocacy in the 80s had not been good, the states were losing some big cases.”

So they formed a supreme court project that helped them.

Kanji thought the same approach could help tribes.

“It wasn’t rocket science,” he said.

Big Firms, Small Firms

There’s no official Project membership, noted Joel Williams, who leads it for NARF.

“We have a working group of about 300 or so attorneys: tribal attorneys, attorneys that practice Indian law, law professors, Supreme Court practitioners, other attorneys that have specialties that might fit in to Indian law cases at the Supreme Court in one way or another,” he said.

“We can go to those people for various types of assistance, whether that be directly assisting the parties in some way or writing amicus briefs or helping us to think through strategy,” he explained.

The working group comes from a wide swath of the legal community, including influential lawyers from Big Law and smaller firms.

Kanji, an advisor to the Project who represents the Creek as amicus in the McGirt case, singled out Gershengorn, who clerked for John Paul Stevens the same term Kanji clerked for Souter, saying “he specifically, and Jenner & Block more generally, have been very involved really from the get-go.”

The goal, Gershengorn said, “is to try to make sure that the tribes are being as well represented as the United States, as the state governments, as the best of private firm clients, and they’re getting the same level of advocacy that others who appear before the Court are getting.”

Kanji also pointed to Sidley Austin heavyweights Carter Phillips and Virginia Seitz as very helpful to the Project. He noted an amicus brief they took the lead on in United States v. Lara, a 2004 case involving tribal prosecution power.

Prominent federal judges Patricia Millett, appointed by President Barack Obama to the D.C. Circuit, and Jeffrey Sutton, appointed by President George W. Bush to the Sixth Circuit, also worked on tribal issues before taking the bench.

Millett argued Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, a 2012 case involving the government acquiring land for a tribe seeking to open a casino.

Shortly before he went on the bench, Sutton wrote an amicus brief in United States v. Navajo Nation, a 2003 case stemming from lease negotiations over mining on tribal lands.

Kanji said he called Sutton “out of the blue” to ask him to write a brief and Sutton called back that same day, even though he was on vacation.

Coordination Key

A big part of Project work is coordinating amicus briefs.

“Coordination at the earliest stage possible,” said NCAI general counsel Derrick Beetso, who heads the Project on that group’s end, “and just serving as a brain trust and technical assistance venue to make sure that, when we act as amici to educate different judiciaries, we do so in the best possible way that takes into consideration all of the tribes.”

When clerking, Kanji saw that the justices don’t “really have any obligation to read amicus briefs,” and so there’s been a “focus on streamlining the number of briefs, having them focus on different topics that add value, having counsel and or amici whose names the court will recognize and pay attention to on the briefs.”

The Long family, subject of the 2008 case Plains Commerce Bank v. Long Family Land & Cattle Co., outside of the U.S. Supreme Court with people who participated with the Tribal Supreme Court Project and worked on the case.
Source: Joel Williams, Native American Rights Fund

Project in Action

The McGirt case is a repeat of sorts.

Last term, Gershengorn argued for Creek member Murphy, whose claim—that he shouldn’t have been prosecuted in Oklahoma state court because his crime really took place on reservation land—could have widespread consequences for that tribe and others, with the state warning of grave tax, regulatory, and crime fighting implications if the justices find the Creek’s 19th century boundaries haven’t since been undone by Congress.

Kanji argued for the Creek itself as an amicus, and hopes that the court will grant the Creek argument time again in McGirt.

But with only eight justices hearing Murphy’s case last term, they couldn’t reach a decision. Gorsuch was recused, presumably due to involvement when the case was at the Tenth Circuit, where he sat prior to his high court appointment.

Now with McGirt’s appeal, which raises the same issues without recusal concerns, all nine justices can weigh in. That sets up the possibility for Gorsuch to break a tie, with McGirt and supporters hoping the justice sides with them as he has in other tribal disputes.

Heading toward the McGirt argument, NARF’s Williams gave some insight into the process.

“What we do is we have a discussion that’s open to the entire Tribal Supreme Court Project working group just about the case generally, where we’ll have the lead attorneys”—here, Gershengorn—“and he’ll be on the call and talk about the case, describe the facts and posture and all of the legal issues, and there’s an opportunity for Q & A, anybody can ask questions during that call, provide feedback, provide their thoughts on law and strategy and all those sorts of things,” Williams said.

From there, he said, they formulate an amicus strategy and form a smaller working group that carries “right through the end” to make sure they’re “not duplicating efforts.”

Among the amicus briefs filed in the McGirt case are Kanji’s filing on behalf of the Creek as well as briefs from former federal prosecutors, advocacy groups concerned with indigenous women and domestic violence, and the Cherokee Nation, another one of the tribes that could be impacted by the ruling.

Playing Defense

The Project also sometimes works to keep disputes out of court, investing “significant resources in opposing certiorari in certain kinds of cases,” Sidley’s Phillips said, adding that he thinks the Project has been quite successful on that front.

Gershengorn observed that a brief opposing Supreme Court review can be the most important brief filed in a case.

He pointed to a case where his firm filed in a dispute—where tribal interests prevailed in the lower court—over when state law enforcement can follow someone onto a reservation.

Despite there being an alleged split in the lower courts on the “hot pursuit” question—the justices are more likely to take a case with a split—Jenner & Block filed an opposition brief and the justices rejected the state’s appeal.

“That’s a victory that never shows up in the annals of the court, in some ways,” Gershengorn said, “and yet, I think it was a potentially big victory for the tribes, to maintain a victory that they had won in a lower court.”


More recently, Kanji observed, the Project is “coming down the chain in the courts of appeal and thinking ahead.”

One such case is pending in the Fifth Circuit, Brackeen v. Bernhardt, a closely-watched challenge to the constitutionality of the Indian Child Welfare Act, a law that seeks to keep children connected to their families and culture when making adoption and foster care decisions.

The case was argued Jan. 22 in front of the full circuit. It’s awaiting decision.

Briefs were strategized “just like a Supreme Court case,” Kanji said, “highly coordinated and a lot of outreach to good people to write the briefs.”

Michigan State law professor Kathryn Fort was one of the lawyers on the Fifth Circuit briefs.

“For us, as the tribal intervenors, obviously a lot of other tribes wanted to have a voice in that case, and so the Project was very helpful in coordinating that tribal amicus brief and handling all of the signatories,” she said.

The Project’s Brackeen involvement “is slightly unusual in that we typically don’t get that involved in a circuit case,” Williams noted. “It’s the Supreme Court Project.”

But the case, he said, “and this subject matter, ICWA, has such broad-reaching implications for tribes.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; Cheryl Saenz at