In the March 2015 edition of the Montana Lawyer (page 18).
Part 1 was here.
Author: Matthew L.M. Fletcher
Wisconsin Law School ILSA: 29th Annual Coming Together of Peoples Conference Agenda — This Weekend!
Here (PDF):
Federal Court Interprets New Western Sky/CashCall Arbitration Language to Allow for Outside Arbitrator
Here are the materials in Williams v. CashCall (E.D. Wis.):
4 CashCall Motion to Dismiss or Compel Arbitration
An excerpt:
So why didn’t the court appoint an arbitrator in Jackson? The court there held that the arbitration provision (like the one signed by Ms. Walker) was void “because it provides that a decision is to be made under a process that is a sham from stem to stern.” 764 F.3d at 779. Not only was there no authorized representative of the Tribe to preside over the proceeding, “the Tribe has no rules for the conduct of the procedure.” Id. (emphasis in original). By providing the option of using the consumer dispute rules of the AAA or JAMS, Mr. Williams’s contract solves that problem. And by allowing the parties to use an arbitrator from either the AAA or JAMS systems, the bias concerns that the Jackson court had about using a Tribal member as the arbitrator, id. at 779-80, are eliminated.
Mr. Williams’s only argument as to why the arbitration provision is unenforceable is that it calls for the arbitrator to apply Tribal law, which he contends is law that does not exist. (ECF No. 16 at 9.) But that is not true, as evidenced by substantive Tribal law on contract disputes, including contract cases in the Tribe’s courts, and the Tribe’s Commercial Code, Rules of Civil Procedure, Constitution and By-Laws, and Law & Code. (ECF Nos. 12-4, 12-5, 12-6, 12-7, 12-8, 21.) Mr. Williams does not raise any of the procedural or substantive unconscionability concerns expressed by the court in Jackson.
The most reasonable reading of Mr. Williams’s loan agreement is that he has the option of choosing to arbitrate any claims that he has relating to his agreement before the AAA, JAMS, or another mutually acceptable organization, applying the consumer dispute rules of the selected administering organization and conducted by an arbitrator from the selected organization’s system. Therefore, unlike Ms. Walker, Mr. Williams is required to pursue his claims against CashCall in arbitration. His complaint shall be dismissed.
Washington “Payment In Lieu of Taxes” Statute Struck Down by State Trial Court
Here is “Tossed out: Superior Court deems tribal tax-break bill unconstitutional.”
And State Superior Court Strikes Down HB 1287, and PILTs as “Taxes”
Here is the court’s order in City of Snoqualmie v. King County Executive (King County Super.):
An excerpt:
3. The payment labeled “payment in lieu of tax” (“PILT”) in Section 8 of Engrossed Substitute House Bill (“ESHB”) 1287 is a property tax under Washington Law;
4. The PILT is subject to uniformity requirements in Article VII of the Washington Constitution;
5. The PILT violates the uniformity requirements in Article VII of the Washington Constitution because it is not imposed at an equal tax rate and does not produce equality in valuing the property taxed; and
6. Section 8 of ESHB 1287 violates Article VII Section 1’s command that “the power of taxation shall never be surrendered, suspended or contracted away.
Background materials here.
Pro Se Effort Challenging Michigan DNR Land Sale to Mining Company Fails
Here are the materials in Bellfy v. Creagh (W.D. Mich.):
An excerpt:
This matter is before the Court on Plaintiffs’ ex parte Motion for Temporary Restraining Order (docket # 2), filed today. Plaintiffs seek to “enjoin Defendant, or other State of Michigan officers, employees, agencies, subdivisions, successors, or assigns” from approving a proposed sale of State land in the Upper Peninsula. (docket # 2.) Plaintiffs contend that the sale would impair their rights under the 1836 Treaty of Washington and in a 2007 Consent Decree reaffirming those rights. The Consent Decree is the subject of another case in this District, United States of America v. State of Michigan, et al., No. 2:73-CV-26 (W.D. Mich. November 2, 2007) (consent decree, docket # 1799), currently assigned to Chief Judge Paul Maloney. The Consent Decree not only addresses substantive rights of the parties, but also describes detailed alternative dispute resolution procedures. (docket # 1799, pp. 62-67.) The nature of the claim Plaintiffs are attempting to assert pro se appear to touch on both procedural and substantive provisions of the Consent Decree.
South Dakota Supreme Court Declines Jurisdiction over Challenge to Transfer of Trust Land
Here is the opinion:
Estate of Ducheneaux v Ducheneaux
An excerpt:
The Estate of Wayne Kenneth Ducheneaux appeals the Sixth Judicial Circuit Court’s denial of its motion for summary judgment and that court’s dismissal of the Estate’s action for lack of subject matter jurisdiction. The Estate argues Wayne Ducheneaux (the Decedent) lacked the requisite mental capacity, or was unduly influenced by Douglas D. Ducheneaux (Ducheneaux), when the Decedent transferred two quarter sections of Indian trust land located in Tripp County, South Dakota, to Ducheneaux. Although the Estate acknowledged the circuit court had no authority to directly return title of the trust land to the Estate, the Estate nevertheless asserts the circuit court had personal jurisdiction over Ducheneaux and, therefore, could have compelled Ducheneaux to make application to the Bureau of Indian Affairs to transfer the two quarter sections back to the Estate. We agree that the circuit court lacked jurisdiction over the parcels held in trust by the United States and affirm.
Federal Court Holds Tribal Exhaustion Doctrine Does Not Apply to ERISA Claims
Here are the materials in Coppe v. Sac & Fox Casino Healthcare Plan (D. Kan.):
9 Sac and Fox Motion to Dismiss
An excerpt:
This case is now before the court upon a motion to dismiss or stay for failure to exhaust tribal remedies. The motion is brought by defendant Sac & Fox Casino Healthcare Plan. This motion asks the court to rule as a matter of comity that before bringing a claim in this court, plaintiff must bring an ERISA action for recovery of insurance benefits under the casino’s nongovernmental plan in tribal court. We assume for purposes of this order that plaintiff is not a member of the Sac & Fox Tribe and that the Plan is not a “governmental plan” as defined in ERISA. We hold that Congress has preempted the tribe’s adjudicatory authority over ERISA claims and, therefore, exhaustion of tribal remedies is not required.
Scholarship Created In Memory of Evelyn Stevenson
Scholarship Created In Memory of Evelyn Stevenson
Evelyn Stevenson touched many lives throughout her lifetime. She will be greatly missed, not only in Indian country but throughout the world. Fortunately, her strong and passionate advocacy for Indian people and tribal sovereignty will continue to ripple forward through those she mentored, mothered and assisted in a multitude of ways. Evelyn’s obituary paints a vivid picture of her generosity, dedication, determination, diverse interests and sense of humor. As noted by her son Craig Stevenson, Evelyn was a strong supporter of education in the broadest sense possible. Building on Evelyn’s recognition that education can be a powerful tool for protecting, preserving and promoting the vast array of components associated with tribal sovereignty, a scholarship has been established in her memory at the Salish Kootenai College. Individuals wishing to honor Evelyn Stevenson by donating to this scholarship should contact the SKC Foundation online, by phone at 406-275-4983 or by mail at P.O. Box 70, Pablo, MT 59855.
Indian Land Tenure Foundation CLE — March 24-26, 2015
ILTF is doing another Tribal Land Staff National Conference March 24-26, this time in Pala, CA. We are cohosting the event with the National Tribal Land Association (NTLA). We have a whole track of CLE programs – 13.25 credit hours are available and have already been approved in Minnesota. We’re doing the live event, obviously (California CLE credit is pending), but we’re also going to make the audio recordings of the programs available on demand at West LegalEdcenter – the same place we broadcast the program from when you did that CLE on Treaties (which was awesome) with us a year or two back.
I have a link to the event page here: http://www.ntla.info/tribal-land-staff-national-conference/, and a list of programs, their speakers and the number of credit hours awarded by MN is below:
Understanding Mineral and Surface Rights on Indian Lands – Marcela Burges Giles (1.75 hours)
Utility Negotiations on Rights of Way and Easements – Maranda S. Compton (1.5 hours)
Drafting and Submitting Leasing Regulations under the HEARTH Act – Cynthia Morales (1.5 hours)
What is Title Insurance and Why is it Important – Jack Zachow (1.5 hours)
Water Rights on Tribal Lands – Stephen V. Quesenberry (1.5 hours)
How American Indian Probate Reform Act (AIPRA) Affects Drafting Tribal Probate Codes – David Armstrong and Katheleen Guzmann (1.5 hours)
Air Rights Over Tribal Lands – William M. Haney (1 hour)
Legislative Updates – Dorothy Alther (1.5 hours)
Cultural Conservation Easements in Indian Country – Curtis Berkey (1.5 hours)
EarthJustice Seeks Lawyers for Alaska Office
Here.
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