Jena A. MacLean
- Washington, D.C.
Jena helps clients solve problems involving federally recognized tribes, tribal businesses, and tribal lands.
Jena MacLean advises clients on issues relating to federally recognized Indian tribes, Alaska Native corporations and villages, and tribal lands. Clients seek her counsel on a range of environmental and federal Indian law issues, including treaty rights, the fee-to-trust process, tribal gaming approvals, compact negotiations, and infrastructure, natural resource, and economic development projects on tribal lands.
An experienced litigator, Jena has represented clients before the Supreme Court of the United States, numerous federal appellate and trial courts, and state courts. She litigates complex civil cases involving the scope of tribal sovereign immunity and treaty rights, gaming disputes, fire claims and other torts, and federal preemption questions, as well as challenges arising under the Administrative Procedure Act.
Jena has a wealth of experience in environmental and federal Indian laws, including the Indian Reorganization Act of 1934, Indian Gaming Regulatory Act, National Indian Forest Resources Management Act, National Environmental Policy Act, Clean Water Act, National Historic Preservation Act, and Endangered Species Act. Informed by this experience, she helps her clients develop practical strategies for interacting with tribes and tribal entities.
Ranked Band 1 by Chambers USA, Jena has been said to be "the foremost expert on Native American law in the country for those in a position where you have to litigate against a tribe." A client has also said that "Jena can do in a few minutes work that would take other lawyers weeks. She has so much knowledge."
Areas of focus
Education & Credentials
Education
- Princeton University, A.B., 1993
- University of Virginia School of Law, J.D., 2001
Bar and Court Admissions
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District of Columbia
- Supreme Court of the United States
- U.S. Court of Appeals for the Second Circuit
- U.S. Court of Appeals for the Ninth Circuit
- U.S. Court of Appeals for the Tenth Circuit
- U.S. Court of Appeals for the District of Columbia Circuit
- U.S. District Court for the District of Columbia
- U.S. District Court for the District of Connecticut
- U.S. District Court for the Eastern District of California
- U.S. District Court for the Eastern District of Washington
Related Employment
- Beveridge and Diamond PC, Washington, D.C., Summer Associate, 1999
- University of Idaho, Department of Soil Science, Moscow, ID, Environmental Chemist, 1994-1996
- Idaho Environmental Policy Analysis Group, Moscow, ID, Field Researcher/Analyst, 1995-1996
- Aurtex Inc., Gold Mining Company, Exploration Geologist, 1990-1995
Professional Recognition
Recognized by Chambers USA as "America's Leading Lawyer" for Native American Law (Nationwide), 2016-2024
Listed in Best Lawyers in America: Native American Law, 2020-2023
Impact
Professional Leadership
- Law360's Native American Law Editorial Board
Insights
News
Professional Experience
Litigation Experience: U.S. Supreme Court
Poarch Band of Creek Indians v. Wilkes
Represented clients injured in an automobile accident in defending the decision of the Alabama Supreme Court, which held that tribal sovereign immunity does not bar tort claims asserted by individuals who have no personal or commercial relationship with the tribe and who have been injured by the tribe’s off-reservation commercial conduct. (17-1175)
Upper Skagit Indian Tribe v. Lundgren
Represented property owners during the petition and merits stages before the U.S. Supreme Court, defending the decision of the Washington Supreme Court, which held that tribal sovereign immunity does not bar in rem actions in property dispute over fee land. (17-387)
Lewis v. Clarke
Represented clients injured in an automobile accident in the petition and merits stage before the U.S. Supreme Court, challenging the decision of the Connecticut Supreme Court, which held that non-Indians are immune from suit for the torts they commit off-reservation in the course of their employment for a tribal entity. (15-1500)
Washington v. United States
Represented business, home building, real estate, farming, and municipal organizations in an amicus capacity on the question of whether tribal treaty fishing rights required the state of Washington to modify culverts that impair salmon populations. (17-269)
Herrera v. Wyoming
Represented Association of Fish and Wildlife Agencies in amicus capacity on the question of whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated tribal hunting rights in the Second Treaty of Fort Laramie. (17-532)
Litigation Experience: Federal Courts of Appeal and District Courts
Agua Caliente Band of Cahuilla Indians v. Riverside County
U.S. Court of Appeals for the Ninth Circuit
U.S. District Court for Central District of California
Represented Riverside County, California in defending a challenge to the State of California’s possessory interest tax, as imposed on non-Indians leasing lands from the Agua Caliente Band of Cahuilla Indians.
New Mexico v. Black
U.S. Court of Appeals for the Tenth Circuit
U.S. District Court for New Mexico
Represented the State of New Mexico in challenging the Department of the Interior’s regulations for tribes to obtain gaming procedures in lieu of a tribal-state compact for class III gaming.
Citizens Against Reservation Shopping v. Haugrud
U.S. Court of Appeals for the D.C. Circuit
U.S. District Court for the District of Columbia
Represented citizen group in challenging the Secretary of the Interior’s authority to acquire land in trust under the Indian Reorganization Act of 1934 (IRA), the Indian Gaming Regulatory Act (IGRA), and NEPA after Carcieri v. Salazar, 555 U.S. 379 (2009).
Public Employees for Environmental Responsibility v. Beaudreau
U.S. Court of Appeals for the D.C. Circuit
U.S. District Court for the District of Columbia
Represented the Alliance to Protect Nantucket Sound in challenging the decisions of the BOEM and the U.S. Coast Guard to approve an off-shore wind energy project in Nantucket Sound under the Outer Continental Shelf Lands Act (OCSLA) and NEPA.
Kawaiisu Tribe v. Salazar
U.S. Court of Appeals for the Ninth Circuit
U.S. District Court for the Eastern District of California
Defended Tejon Ranch, the largest private landowner in California, against aboriginal land and treaty claims by an unrecognized group of Indians.
Mashantucket Pequot Tribe v. Town of Ledyard
U.S. Court of Appeals for the Second Circuit
U.S. District Court for Connecticut
Defended the Town of Ledyard’s right to impose and collect personal property taxes on property owned by non-Indians but leased to an Indian tribe and used for gaming activities on a reservation.
Delaware Nation v. Commonwealth of Pennsylvania
U.S. Court of Appeals for the Third Circuit
U.S. District Court for Eastern District Pennsylvania
Defended the governor of the Commonwealth of Pennsylvania against a land claim by the Delaware Nation based on the Indian Intercourse Act and federal common law.
State Courts and Administrative Boards
Albrecht et. al v. Riverside County
California Superior Court
Represented Riverside County, California in multi-party refund action for possessory interest taxes assessed on non-Indian possessory interests in tribal lands.
Herpel et. al v. Riverside County
California Court of Appeals
California Superior Court
Represented Riverside County, California in class action related to possessory interest taxes assessed on non-Indian possessory interests in tribal lands.
Citizens for a Better Way v. Governor Brown
California Supreme Court
Represented environmental group challenging the governor’s authorization of gaming on off-reservation land under IGRA and the California Constitution.
Viejas Band of Kumeyaay Indians v. BIA
Interior Board of Indian Appeals
Challenged a decision by the BIA to acquire land in trust for the Ewiiaapaayp Band of Kumeyaay Indians within a few miles of the Viejas Reservation and Casino. We demonstrated that although the stated purpose of the trust acquisition was for the development of a health clinic, its real purpose was to facilitate plans by the Ewiiaapaayp Band to remove an existing health clinic from trust land to develop a casino. The Interior Board of Indian Appeals remanded the decision to BIA for violations of the Indian Reorganization Act, National Environmental Policy Act and Administrative Procedure Act.
Regulatory Experience
Represents Governmental Entities and Utilities in Obtaining or Renewing Rights of Way and/or Easements Across Tribal Lands
Counseled a number of clients regarding BIAs’ new regulations governing rights-of-way or easements across tribal lands; assisted clients in negotiating new rights-of-way and regulatory compliance.
Environmental Counseling for Renewable Energy Projects
Represented solar company seeking permits to develop solar facilities on public lands in California. Representation involved counseling during the regulatory process, assessment of litigation risk, and development of regulatory and litigation strategy.
Environmental Counseling for Offshore Oil and Gas Development
Represented oil and gas companies seeking exploration and development permits in the offshore environment. Representation involved counseling during the regulatory process, assessment of litigation risk, and development of regulatory and litigation strategy.