Author: Matthew L.M. Fletcher – Page 489

Federal Court Orders Arbitration in Western Sky/CashCall Payday Lending Dispute

March 30, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Kemph v. Reddam (N.D. Ill.):

51 CashCall Motion to Dismiss-Compel Arbitration

An excerpt:

Plaintiffs’ argument that the loan agreements are unconscionable because JAMS and AAA would never agree to preside over the arbitration is speculative and unconvincing. (See Resp. at 2—3, 13—14; Sur-Reply at 1—3.) Although the arbitration agreements provide that “the arbitrator will apply the laws of the Cheyenne River Sioux Tribal Nation,” (Agreement at 5), the arbitrator, once chosen, would have the authority to determine whether that choice-of-law provision is valid. See Nitro-Lift Technologies, L.L.C. v. Howard, 133 S. Ct. 500, 503 (2012) (holding that once the court determines the validity of the arbitration provision, the remainder of the contract is left for the arbitrator to decide); Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 541, 115 S. Ct. 2322, 2330 (1995)(ruling that the arbitrator should decide choice-of-law in the first instance); CNA Reinsurance Co. v. Trustmark Ins. Co., No. 01 C 1652, 2001 WL 648948, at *6 (N.D. Ill. June 5, 2001); see also Prostyakov v. Masco Corp., 513 F.3d 716, 725 (7th Cir. 2008)(upholding the arbitrator’s interpretation of the choice-of-law clause because it was not the court’s “place to determine whether [the arbitrator’s] interpretation was correct as a matter of law”). This is particularly true because, as discussed, the loan agreements explicitly provide that the arbitrator can decide “any issue concerning the validity, enforceability, or scope of . . . the Arbitration agreement,” which includes [18] the enforceability of the choice-of-law clause. (Agreement at 4.) Therefore, potential arbitrators need not refuse the dispute in order to comply with internal due process standards. Nor would they be required to violate Illinois public policy by applying tribal law if they chose to accept it. They could instead accept the dispute, find the choice-of-law provision is unenforceable, and determine what default law should apply.

32nd Annual Michigan State University Powwow: April 18, 2015

March 29, 2015March 27, 2015Matthew L.M. Fletcher

Here is the flyer:

Indian Groups Persuade Federal Court to Preserve Judge Cebull Emails

March 28, 2015March 27, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Four Directions v. Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (N.D. Cal.):

34 Petition to Preserve Evidence

35 Opposition & Motion to Dismiss

38 Response to 35

39 Reply in Support of 35

53 DCT Order

Alaska SCT Upholds Subsistence Hunting Rules against Challenge from Conservation Group

March 27, 2015Matthew L.M. Fletcher

Here is the opinion in Alaska Fish & Wildlife Conservation Fund v. State:

Alaska Fish and Wildlife Conservation Fund v State

An excerpt:

Regulations promulgated by the Alaska Board of Game establish two different systems of subsistence hunting for moose and caribou in Alaska’s Copper Basin region: (1) community hunts for groups following a hunting pattern similar to the one traditionally practiced by members of the Ahtna Tene Nene’ community; and (2) individual hunts.1 A private outdoors group, the Alaska Fish and Wildlife Conservation Fund, argues that this regulatory framework violates the equal access and equal protection clauses of the Alaska Constitution by establishing a preference for a certain user group. The Fund also argues that the regulations are not authorized by the governing statutes, that they conflict with other regulations, and that notice of important regulatory changes was not properly given to the public. But because we conclude that the Board’s factual findings support a constitutionally valid distinction between patterns of subsistence use, and because the Board’s regulations do not otherwise violate the law, we affirm the superior court’s grant of summary judgment to the State, upholding the statute and the Board regulations against the Fund’s legal challenge.

Briefs:

Alaska Brief

Appellant’s Opening Brief

Appellant’s Reply Brief

Brief of Appellee Ahtna Tene Nene’

Alaska COA Rejects Yup’ik Free Exercise Defense to Criminal Prosecution for Salmon Fishing

March 27, 2015Matthew L.M. Fletcher

Here is the opinion:

Phillip v. State

An excerpt:

In June 2012, the thirteen defendants in this case — all Yup’ik fishermen living a subsistence lifestyle — were charged with violating the Alaska Department of Fish and Game’s emergency orders restricting fishing for king salmon on the Kuskokwim River. The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was religiously based activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution.

Briefs are here.

Oklahoma v. Hobia Cert Petition

March 27, 2015Matthew L.M. Fletcher2 Comments

Here:

Petition for a Writ of Certiorari (as filed)

Question presented:

Does Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014), require the dismissal of a State’s suit to prevent tribal officers from conducting gaming that would be unlawful under the Indian Gaming Regulatory Act and a state-tribal compact when

• the suit for declaratory and injunctive relief has been brought against tribal officials – not the tribe;

• the gaming will occur in Indian country, on the land of another tribe; and

• the state-tribal compact’s arbitration provision does not require arbitration before filing suit?

Lower court materials here.

Wisconsin Judicare Indian Law Office Job Posting

March 27, 2015Matthew L.M. Fletcher

INDIAN LAW STAFF ATTORNEY

DESCRIPTION — Wisconsin Judicare’s Indian Law Office is hiring an additional attorney to represent Native American individuals on a variety of issues including civil and criminal defense representation in the Ho-Chunk Nation Tribal Court. Wisconsin Judicare is a non-profit legal services law firm serving northern Wisconsin where there are 11 Indian reservations. This attorney will be responsible for representing members of the Ho-Chunk in both tribal and state court. The Judicare office is in Wausau, however this position could be based in another location depending on the candidate. Position start date is early June.

DUTIES — (1) Represent individual tribal members charged with crimes in the Ho-Chunk Nation Tribal Court; (2) Represent individuals in civil cases (family law, elder law, and estate planning) in tribal and state court. (3) Conduct community education and outreach.

QUALIFICATIONS — (1) Must be admitted to practice law in Wisconsin; (2) admitted, or the ability to gain admission within 60 days of hire to the Ho-Chunk Nation Bar. (3) Good communications and advocacy skills; and (4) Knowledge of Native American issues, and familiarity with the Ho-Chunk Nation preferred.

SALARY — DOE. There are excellent fringe benefits.

APPLICATION PROCEDURE — Please submit resume, writing sample and 3 references to David Armstrong, Director, Indian Law Office, Wisconsin Judicare, P.O. Box 6100, Wausau, WI 54402 or at darmstrong@judicare.org. For inquiries call David at 1-800-472-1638 ext. 309.

NATIVE AMERICANS, MINORITIES, WOMEN, OLDER PERSONS AND

INDIVIDUALS WITH DISABILITIES ARE ENCOURAGED TO APPLY.