Author: Matthew L.M. Fletcher

Federal Court Issues Split Decision in Flandrea Santee Sioux — South Dakota Tax Dispute

Matthew L.M. Fletcher

Here are the materials in Flandreau Santee Sioux Tribe v. Gerlach (D. S.D.):

79 State Motion for Summary J

117 Flandreau Motion for Summary J

124 State Opposition

130 Flandreau Opposition

136 Flandreau Reply

154 DCT Order

An excerpt:

1. The Tribe’s Motion for Summary Judgment, Doc. 115, is GRANTED to the extent that:

a. The State cannot impose a use tax on nonmember purchases of goods and services as to the Casino’s slots, table games, food and beverage services, hotel, RV park, live entertainment events, and gift shop (claim one).

2. The Tribe’s Motion for Summary Judgment, Doc. 115, is DENIED as to the following:

a. The State can impose a use tax on nonmember purchases of goods and services at the Store (claims one and three).

b. The State’s use tax on nonmember purchases of goods and services at the Store is not discriminatory (claim four)

3. The Defendants’ Motion for Summary Judgment, Doc. 78, is GRANTED to the extent that:

a. The State’s use tax on nonmember purchases of goods and services at the Store is not preempted by IGRA (claim one).

b. The State’s use tax on nonmember purchases of goods and services at the Store is not discriminatory (claim four).

c. The collection and remittance of taxes on nonmember consumer purchases at the Store are not preempted by federal law and do not infringe on tribal sovereignty (claims two and five).

4. The Defendants’ Motion for Summary Judgment, Doc. 78, is DENIED as to the following:

a. The State cannot impose a use tax on nonmember purchases of goods and services as to the Casino’s slots, table games, food and beverage services, hotel, RV park, live entertainment events, and gift shop (claim one).

b. The State cannot condition renewal of the Tribe’s beverage license on the collection and remittance of a use tax on nonmember consumer purchases (claims six and eight).

5. The State does not have jurisdiction to assess a use tax on nonmember purchases at the Casino’s slots, table games, food and beverage services, hotel, RV park, live entertainment events, and gift shop. However, the State does have jurisdiction to assess a use tax on nonmember purchases at the Store (claim seven).

6. Each party requested declaratory relief. Tribal sovereign immunity is jurisdictional in nature. This Court has no jurisdiction due to tribal sovereign immunity to order the ‘payment to the State from the escrow funds held pursuant to the Deposit Agreement. The Tribe, however, agreed in the Deposit Agreement that those funds would be held by the escrow agent pending the outcome of this lawsuit. Accordingly, the escrow agent may now, subject to any stay granted pursuant to an appeal, pay the funds held in escrow to the Tribe and to the State in their respective shares under the guidance provided by this declaratory judgment.

California Court of Appeals Holds Contract Breach Claim Preempted by IGRA

Matthew L.M. Fletcher1 Comment

Here is the opinion in Sharp Image Gaming v. Shingle Springs Band of Miwok Indians (Cal. Ct. App.). An excerpt:

We conclude that IGRA preempts state contract actions based on unapproved “management contracts” and “collateral agreements to management contracts” as such agreements are defined in the IGRA regulatory scheme. Thus, the trial court erred by failing to determine whether the ELA and the Note were agreements subject to IGRA regulation, a necessary determination related to the question of preemption and the court’s subject matter jurisdiction. We further conclude that the ELA is a management contract and the Note is a collateral agreement to a management contract subject to IGRA regulation. Because these agreements were never approved by the NIGC Chairman as required by the IGRA and were thus void, Sharp Image’s action is preempted by IGRA. Consequently, the trial court did not have subject matter jurisdiction. 

Briefs here.

NYTs: “Traditions Revived at a Tribal Culture Camp” [Yurok Tribe]

Matthew L.M. Fletcher

Here.

NYTs Profile of the Problem of Michigan Charter Schools — Betsy DeVos Wants to Help Her Friends to Get Rich Robbing Michigan Taxpayers of their Education Money

Matthew L.M. Fletcher1 Comment

Here is “Michigan Gambled on Charter Schools. Its Children Lost.”

An excerpt:

When I later spoke to Newland, pointing out the cultural and geographical chasm between B.M.C.C. and the downstate, urban neighborhoods so many of their charters served, he shot back that Indians knew poverty as well anyone. “It’s a different stage for the same play,” he told me. “I think we understand it very well.” Were he “designing an education system from scratch,” Newland continued, he’d make funding levels the same for every district and pay teachers “like the white-collar professionals that they are.” But he wasn’t, so he supported charter schools. Unlike Parish, Newland was willing to discuss DeVos. “I learned at a relatively young age not to ascribe malice to people as a motivation,” he said. “I think when she says, ‘I care about having our kids learn,’ I believe that.” But, Newland went on: “She didn’t go to public school. Her kids didn’t go. My guess is she doesn’t hang out with a lot of people who know what it’s like going to a school with 50 percent people of color. And I haven’t seen evidence that she’s taken the time to learn.”

UNM Symposium on the Indian Civil Rights Act, March 2018

Matthew L.M. Fletcher1 Comment

Here:

UNM symposium announcement

En Banc Petitions in Penobscot v. Mills

Matthew L.M. Fletcher

Here:

Tribe En Banc Petition

US En Banc Petition

Prior case materials here.

Jotwell Piece on Dan Carpenter’s Paper on 19th Century Indian Administrative Petitions

Matthew L.M. Fletcher

Here.

An excerpt:

Carpenter identifies several factors that contributed to Native Americans’4 early and robust use of the administrative petition. One factor was a pattern of congressional deference to the President in matters relating to Indian policy. Presidents, in turn, delegated great power to administrators within the War Department and, later, the Department of the Interior. A second important factor was that these administrators had no intention of leaving Native Americans alone, but rather embarked on prolonged campaigns of dispossession and subordination. In other words, Native Americans had every reason to want to influence administrative decisionmaking. A third factor, Carpenter argues, was a tradition of “complaint and supplication” among indigenous North Americans that was already well established by the time of the Founding. (P. 358.) According to this tradition, all types of authority (i.e., administrators as well as legislators) were appropriate subjects of entreaty.

Troy Eid: “Working Effectively With Tribes On Energy Projects”

Matthew L.M. Fletcher

Here.

Pyramid Lake Paiute Wins More Water in Ninth Circuit

Matthew L.M. Fletcher

Here is the unpublished memorandum in Pyramid Lake Paiute Tribe of Indians v. Board of Directors of the Truckee-Carson Irrigation District.

Briefs:

Pyramid Lake Opening Brief

Response Brief

Reply Brief

Oral argument video is here.