Ben Fenner

Partner

EMAIL: bfenner@nativelawgroup.com

PHONE: 303-926-5292

Ben has over 15 years of legal experience representing tribal interests in the halls of Congress, courts, and administrative proceedings in matters relating to tribal self-determination, taxation, and economic development. A skilled litigator and negotiator, Ben has authored and argued successful briefs and dispositive motions before federal, tribal and state courts of appeals and trial courts.

Ben’s litigation experience focuses on appeals and complex litigation involving tribal treaty rights; tribal tax and regulatory jurisdiction; and Indian Self Determination and Education Assistance Act (ISDA) health care, education, and justice services contracts.

Ben was instrumental in litigating Oglala Sioux Tribe v. United States, 674 F. Supp. 3d 635 (D.S.D. 2023) which held that the United States owes a treaty-based duty to fund law enforcement for the Oglala Sioux Tribe. The ruling is the first to acknowledge that the government owes a treaty-based duty to fund law enforcement for any Indian tribe.

Ben has spent his career fighting for tribal sovereignty and working to restore tribal economies through tribe-to-tribe trade. He successfully defended the Lac Vieux Desert Election Board against a challenge to the certified election results brought by a tribal member in Williams v Lac Vieux Desert Election Board, 10-AP-03 (Lac Vieux Desert Appellate Ct. Dec. 20, 2010). He argued and was successful in upholding Yankton Sioux Tribal law and Tribal immunity from suit in the DC Circuit Court of Appeals on a charging lien sought by former counsel in Yankton Sioux Tribe v. Bernhardt, Case No. 19-5099.  He worked on the Shinnecock Indian Nation’s successful petition for federal recognition and represented the Nation in its long-running, and ultimately successful, claim of immunity from suit in Gristede’s Foods, Inc. v. Unkechauge Nation, 2009 WL 4981905 (E.D.N.Y. Dec. 10, 2009). Ben was also lead counsel in the multi-prong litigation brought in HCI Distribution, Inc. v. New York State Police, 36 Misc. 3d 743 (Sup. Ct. 2012), part of a multi-million-dollar damages claim settled against the State of New York for the State’s negligent interference in inter-tribal trade.

For decades, Ben has successfully litigated many ISDA-related disputes. He represented numerous tribal clients in Contract Support Cost (CSC) claims against the Indian Health Service and the Bureau of Indian Affairs. The CSC claims he litigated resulted in negotiated settlements of over $10 million dollars for tribal clients.

Ben advises clients and mediates with federal stakeholders on such crucial issues as BIA base contract funding for justice services, construction and financing of tribal infrastructure, and federal debt collection. He has worked with tribal clients and presented to national audiences on Clean Water Act implementation in Indian Country and on tribal gaming development.

Ben has assisted tribal clients on tribal code development and drafting, entity creation and corporate governance, and regulatory compliance.  He also counsels tribal clients on trademarks, copyrights, licensing, contracts, and other areas of intellectual property.

Prior to joining Patterson Earnhart Real Bird & Wilson LLP, Ben clerked for the Honorable Vincent G. Bradley on the New York State Supreme Court and interned with the child protection unit of the Connecticut Attorney General’s office. Most recently, he was partner at a national firm specializing in the practice of federal Indian law. Ben was included in the 2023 edition of The Best Lawyers in America® in the field of Native American Law.

Ben lives with his wife and two children just outside of DC, on the ancestral homelands and hunting grounds of the Doeg and Tauxenent, Pamunkey, and Piscataway people, and enjoys all the area has to offer, from the Shenandoah Mountains to the Maryland shore.