Author: Matthew L.M. Fletcher – Page 515

Miccosukee Tribe and Bernardo Roman Sanctioned $1M by Federal Court in Claims against Billy Cypress, Lewis Tein LLC, and Dexter Lehtinen

January 19, 2015January 21, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Miccosukee Tribe v. Cypress (S.D. Fla.):

38 Defendants Notice of Filing Motion for Sanctions

380 Lewis Tein Trial Brief re Rule 11 Motion

394 Lehtinen Supp Brief

395 Lewis Tein Supp Brief

396 Miccosukee Brief

419 DCT Order

An excerpt:

For the aforementioned reasons, it is hereby ORDERED and ADJUGDED that Defendant Lewis Tein’s Motion for Rule 11 Sanctions and Defendant Dexter Lehtinen’s Motion for Rule 11 Sanctions are GRANTED in part and DENIED in part. Plaintiff Miccosukee Tribe of Indians of Florida, Counsel Bernardo Roman, Esq., and the Law Offices of Bernardo Roman III are SANCTIONED in the amount of $975,750.00 owing to Lewis Tein and in the amount of $95,640.00 owing to Dexter Lehtinen, which represent the attorney’s fees and costs incurred in this matter, including those accrued for bringing and [50] prosecuting the sanctions motions. See Norelus v. Denny’s, Inc., 628 F.3d 1270, 1298 (11th Cir. 2010) (“[A] district court may include costs arising from the sanctions proceedings in the sanctions award.”); Mike Ousley Prods., Inc. v. WJBF-TV, 952 F.2d 380, 383-84 (11th Cir. 1992) (“This Court has clearly held that a party can collect the expense of pursuing a Rule 11 claim.”).

I recognize the monetary sanctions imposed are sizable. However, considering that upon a finding that a party filed a pleading that has no reasonable factual basis, which unreasonably and vexatiously multiplied the proceeding, an appropriate sanction may be the compensation of attorney’s fees incurred in combating the wrongful conduct. Here, the wrongful conduct is the filing of the complaints with no reasonable factual basis to support their allegations. Following a review of the Lewis Tein’s Sealed Statement of Attorney’s Fees (ECF No. 400, SEALED) and Defendant Lehtinen’s Filing of Legal Fees and Expenses Pursuant to Court Order (ECF No. 404, SEALED), it is difficult to parse out — given the sweeping nature of the Tribe’s allegations, i.e. Defendants Lewis Tein created their law firm “for the main purpose of advancing and perfecting the plundering of the Miccosukee Tribe,” Defendants Lewis Tein devised a money laundering/kickback scheme whereby Defendants [51] Lewis Tein “would charge exorbitant fees for fictitious, unnecessary, inflated, substandard and exaggerated legal work to funnel a part thereof to Defendant Cypress,” and Defendant Lehtinen “through a pattern of criminal activity. . .maintained control of the affairs of the [Tribe] . . . resulting in a loss of millions of dollars” — which, if any, of the legal fees incurred were not warranted by the allegations.

Materials in Miccosukee’s failed effort to disqualify the judge are here.

Materials on the underlying merits of the claim are here and here.

RICA Suit against Payday Lenders Tangentially Involving Tribal Sovereign Lending

January 19, 2015Matthew L.M. Fletcher1 Comment

Here is the complaint in Bynon v. Mansfield (E.D. Pa.):

1 Complaint

An excerpt:

The defendants in this case are conspirators in a usury scam. The defendants charged plaintiff Breanda Bynon interest at the rate of 182.02% A.P.R. on a $5,000 loan. Ms. Bynon paid defendants about $15,000, but defendants applied all of the money to usurious interest and then repossessed her vehicle claiming nonpayment. Ms. Bynon files this complaint for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Pennsylvania Loan Interest and Protection Law (“Act 6”), 41 P.S. § 201 et seq., and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c),

Another:

Sovereign Lending Solutions, LLC (“Sovereign”), is a loan company wholly owned by the Lac Vieu Desert Bank of Lake Superior Chippewa Indian Tribe (”Tribe”), and incorporated under tribal law. Sovereign originated the loan to Ms. Bynon, but is not named as a party because it is protected from liability under the doctrine of tribal immunity.

Complaint Opposing Wind Energy Project Involving Mesa Grande Band of Mission Indians

January 19, 2015Matthew L.M. Fletcher

Here is the complaint in Hamrick v. GSA (C.D. Ill.):

1 Complaint

Federal Court Challenge to Santa Ynez Band of Chumash Indians Membership Decisions Dismissed

January 19, 2015Matthew L.M. Fletcher

Here are the materials in Miranda v. Jewell (C.D. Cal.):

20 Miranda Motion for Summary J

25 Interior Cross-Motion

32 Miranda Reply

33 Interior Reply

37 DCT Order

An excerpt:

In the absence of a clear directive in the SYB Articles that blood degree of prospective members should be determined based only on the blood degree of an ancestor as listed on the 1940 Census, the Court declines to second guess the Bureau’s reasonable decision to apply SYB law in the same manner in which the Tribe applied it.

NYTs on Navajo Leadership Complication (No President)

January 17, 2015Matthew L.M. Fletcher

Here is “Navajos Face Leadership Crisis as Lawmakers Take Office, Minus a New President.”

Who Won American Indian Law and Policy in 2014? The Tribal In-House Counsel Association (of course)

January 16, 2015Matthew L.M. Fletcher

It pays to get organized. As you may know, MSU and TICA will be hosting the first Indian law conference (that I know) dedicated exclusively to issues involving in-house counsel for Indian nations. There’s still time to join TICA and answer the call for papers!

Runner Up

Tribal sovereign immunity — a huge winner in 2014, with the Supreme Court reaffirming its commitment to tribal immunity and to Congress’s prerogative when it comes to abrogating that immunity instead of the Supreme Court.

Final Four

Alaska Native tribes had a wild, up and down (mostly up) year. Justice Sotomayor continued her run of writing scholarly opinions in Supreme Court cases that articulated theories of Indian law rarely generated by Supreme Court Justices.

Fourth Round

Bay Mills Indian Community won a surprising Supreme Court victory — that victory could be said to be represented by three of the final eight (along with immunity and Justice Sotomayor). ICWA‘s omnipresence in terms of sheer number of cases, along with AG Holder’s statement of commitment to the enforcement of the statute, was a big deal this year. Judge Diane Humetewa became the first American Indian woman to sit as a federal judge. And crowd favorite 1491s advocacy against the Washington Football Team’s nickname raised their profile considerably.

Third Round

VAWA‘s tribal jurisdiction provisions being successfully implemented at the pilot project tribes, most notably Pascua Yaqui, and with Congress removing the Alaska exclusion, made the statute go fairly deep into the tournament. 2015 promises to be a much bigger year for VAWA. It was a pretty bad year for intra-tribal disputes, what with Chukchansi’s casino shutdown and armed unrest headlining all over. The Gun Lake Tribe‘s success in Congress, the Oneida Tribe of Wisconsin‘s success in the Supreme Court, and the Carcieri challengers‘ ongoing federal court efforts, all registered big this year. Two books made it this far, Structuring Sovereignty and the Cohen Handbook. But perhaps the biggest individual winner was Sarah Deer and her much-deserved award.

Second Round

Omaha Tribe, Cayuga Nation, Sault Tribe, and Lac Courte Oreilles all won important federal appellate victories. Indian country voting rights, Indian gaming, gray wolves, and tribal court exhaustion all had big litigation years. American Indian education, Bill Wood, Kevin Washburn, Frank Pommersheim, Keith Harper, Cobell settlement beneficiaries, the Supreme Court Project, and Adoptive Couple law reviews all burned out early.

First Round

Full of sound and fury but signifying nothing. Made the tournament field, and that means something, but that’s all: Tribal Law and Policy Institute, Native American Bar Association, Bay Mills law review articles, tribal sovereign (payday) lenders, Buena Vista Rancheria, Kialegee Tribal Town, Big Lagoon Rancheria, MHA Nation, Fond du Lac, Wind River, Cowlitz, Navajo, preemption, Rule 19, internet gaming, human trafficking, alternative energy, climate change, Indian criminal sentencing, Tribal General Welfare Exclusion Act, Kumeyaay Cultural Repatriation Committee, Dollar General, Neal Katyal, Eric Holder, McAllen Grace Brethren Church, Judge Canby, Chris Deschene, Rob Williams, Borough of Jim Thorpe, Indian country pot growers, Senate Committee on Indian Affairs, and the State of New Mexico.

Big Legal Battle Brewing over Colorado River Indian Tribes California-Side Reservation

January 16, 2015Matthew L.M. Fletcher1 Comment

From the L.A. Times, here is “Holdouts, tribes clash over border of Colorado River reservation.”

The materials so far in French v. Starr (D. Ariz.):

54 Tribal Motion for Summary J

76 French Response to US Amicus

81 Proposed California Amicus Brief

83 Opposition to Proposed Amicus

NAHASDA Matter Involving Te-Moak Tribe; HUD Interpretation of 24 CFR 1000.318 Struck Down

January 16, 2015Matthew L.M. Fletcher

Here are the materials in Housing Authority of the Te-Moak Tribe of Western Shoshone Indians v. HUD (D. Nev.):

18 Te-Moak Motion for Summary J

Yale Law Journal Article: “Beyond the Indian Commerce Clause”`

January 16, 2015January 16, 2015Matthew L.M. Fletcher

Gregory Ablavsky has published “Beyond the Indian Commerce Clause” (PDF) in the Yale Law Journal.

Here is the abstract:

The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause’s original understanding does not support this authority, with radical implications for current doctrine.

This Article uses unexamined historical sources to question this debate’s fundamental premise. It argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This Article instead posits alternate sources for federal authority over Indian affairs, drawing particularly on the Washington Administration. Asserting federal power against the states, the Administration embraced a holistic constitutional reading akin to present-day field preemption. With respect to authority over Indians, the Administration, through law-of-nations interpretations, asserted ultimate U.S. sovereignty over tribes, while acknowledging Native autonomy beyond these limitations. Yet these supposedly narrow legal principles ultimately formed the basis for the later elaboration of plenary power over tribes.

On the one hand, this history provides a more solid foundation for doctrinal principles derided as incoherent. On the other hand, it suggests more cabined federal authority over Indians. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of constitutional understandings.

Harvard Law Review Comment on Dollar General v. Mississippi Band of Choctaw Indians

January 15, 2015Matthew L.M. Fletcher

Here is “Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians Fifth Circuit Disclaims Independent Obligation to Ensure that Tribal Courts Have Subject Matter Jurisdiction in Disputes Involving Nonmembers.”