Here is the order and materials:
SCIT Amended Motion to Expedite
You may recall this matter is on remand from the Sixth Circuit.
Author: Matthew L.M. Fletcher
Federal Bankruptcy Court Holds Prairie Band Potawatomi Per Cap is Property of Individual Debtors
Here are the materials in In re McDonald (D. Kan. Bkrcy.):
47 Order Sustaining Objections
An excerpt:
Debtors, William and Bonnie McDonald and Kliffton and Jeanette Scott, have filed chapter 13 plans that do not propose to pay any amount to satisfy the best interest of the creditors test of 11 U.S.C. § 1325(a)(4) with regard to per capita payments they receive from the Prairie Band Potawatomi Nation Indian Tribe (hereinafter “Prairie Band” or the “Tribe”). Building on governing precedent, the Court concludes that despite changes to the Prairie Band Per Capita Ordinance and Tribal Code since it last ruled on these issues, the per capita payments remain property of the respective chapter 13 estates, and the Debtors’ plans have thus failed to satisfy the best interest of the creditors test with respect to this contingent, unliquidated property.
Debtors William and Bonnie McDonald also seek to exempt the per capita payments from the bankruptcy estate by arguing they are exempt under 11 U.S.C. § 522(b)(3)(A) as “local law that is applicable . . . at the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition.” The McDonalds have stipulated that their domicile is in Topeka, Kansas, however, and they are not domiciled on Prairie Band land. As a result, § 522(b)(3)(A)’s exemption based on “local law” is not applicable. The McDonalds’ other exemption arguments likewise fail.
As a result of the conclusions discussed more fully herein, the Court sustains the Chapter 13 Trustee’s objections to confirmation and objections to exemption in each case.
Federal Court Issues Preliminary Injunction in Picayune Casino Dispute
Here are the materials in State of California v. Picayune Rancheria of Chukchansi Indians (E.D. Cal.):
9 McDonald Faction Opposition to TRO
10 Unification Council Response to TRO
30 Unification Council Response to PI Motion
33 McDonald Faction Response to PI Motion
42 California Reply in Support of PI Motion
From the order:
The Court orders that the Tribe, and all if its officers, agents, servants, employees and attorneys, and all persons acting under the Tribe’s direction and control, including all groups currently claiming to constitute the tribal government, are hereby enjoined and restrained from:
1. Attempting to disturb, modify or otherwise change the circumstances that were in effect at the Casino as of the afternoon of October 8, 2014. This prohibition includes, without limitation, attempting to repossess, or take control of the Casino in whole or in part. Payments in the ordinary course of business, including mandatory fees to the gaming commission actually supervising the Casino’s operations on October 8, 2014, and per capita tribal distributions based upon the Tribe’s membership list as of December 1, 2010, that are made in equal amounts, are not violative of this Injunction. No discretionary payments shall be made to any group claiming to be the duly constituted tribal council or claiming control over tribal matters.
2. Deploying tribal police or other armed personnel of any nature within 1,000 yards from the Casino, the property on which the Casino is located, and tribal properties surrounding the Casino, including the adjacent hotel and nearby tribal offices (collectively, “Tribal Properties”). This prohibition includes weapons of any nature or sort such as, by way of example but not limited to, firearms, tasers, knives, clubs, and batons. The only armed personnel allowed within the Tribal Properties are members of federal, state, and local law enforcement agencies who are acting within the scope of their official duties.
3. Possessing, carrying, displaying, or otherwise having firearms on the Tribal Properties.
4. Removing documents or other property from the Casino, or continuing to possess, or possessing, documents or other property removed from the Casino during and after the morning of October 9, 2014. All such documents or other property that were removed and have not been returned shall be returned immediately.
5. Operating the Casino unless and until it is established before this Court that the public health and safety of Casino patrons, employees, and tribal members can be adequately protected from the violent confrontations and threats of violent confrontation among the tribal groups disputing leadership of the Tribe and control of the Casino. This prohibition shall have no further force and effect if the NIGC issues an order lifting its Closure Order and, within one-half court day thereof, the State does not object to reopening the Casino.
This preliminary injunction will remain in effect until resolution of the case by settlement or judgment or the Court’s further order.
Federal Court Materials (So Far) in Suit against Seminole Tribe’s Section 17 Corporation
Here are the materials in Lujen Brands LLC v. Seminole Tribe of Florida Inc. (S.D. Fla.):
DCT paperless order:
ORDER DENYING WITHOUT PREJUDICE Seminole Tribe of Florida, Inc., Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 14 Motion to Dismiss Complaint With Prejudice for Lack of Subject Matter Jurisdiction; DENYING WITHOUT PREJUDICE the STOFI Defendants’ 31 Motion for Scheduling Conference; and GRANTING Plaintiff’s 32 Motion to Compel Initial Disclosures. On May 2, 2014, the STOFI Defendants filed a 14 Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that they are immune from suit by virtue of the doctrine of tribal sovereign immunity. In its 15 Response, Plaintiff requested jurisdictional discovery. It is ORDERED AND ADJUDGED that Plaintiff shall have forty-five (45) days to conduct jurisdictional discovery narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ 14 Motion to Dismiss. Discovery may not stray to merits issues. The Parties are directed to confer and cooperate in good faith in determining the logistics of the discovery. After the forty-five (45) day jurisdictional discovery period, the STOFI Defendants may, if they choose, refile their Motion to Dismiss for Lack of Subject Matter Jurisdiction. It is further ORDERED AND ADJUDGED that all parties shall proceed to merits discovery at the conclusion of the forty-five (45) day jurisdictional discovery period. This entry constitutes the ENDORSED ORDER in its entirety. Signed by Judge Joan A. Lenard on 8/22/2014. (jn) (Entered: 08/22/2014)
38 STOFI Motion for Reconsideration
DCT Order:
ORDER GRANTING Seminole Tribe of Florida, Inc. (STOFI), Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 38 Motion for Reconsideration of the Court’s August 22, 2014 Paperless Order. In their Motion, the STOFI Defendants argue that the Court’s August 22, 2014 Order (D.E. 33) implies that if they were to re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds at the close of jurisdictional discovery, they would nevertheless have to participate in merits discovery before the Court issued a ruling on the issue of subject-matter jurisdiction. (See D.E. 38 at 2). The STOFI Defendants further argue that if the Court were to order them to engage in merits discovery prior to resolution of the issue of sovereign immunity, the Court would be infringing on their tribal sovereign immunity and that such an order would constitute error. (Id.). Plaintiff asserts no argument on this issue in its Response. (See D.E. 46). The Court is permitted to resolve the issue of sovereign immunity before allowing discovery. See Caraballo-Sandoval v. Honsted, 35 F.3d 521, 524 (11th Cir. 1994). Accordingly, it is ORDERED that, at the close of jurisdictional discovery, should the STOFI Defendants re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds, the Court will stay this action as to the STOFI Defendants pending the resolution of the Motion to Dismiss.
The STOFI Defendants also argue in their Motion that the Court should more precisely define the boundaries of jurisdictional discovery. In its August 22, 2014 Order, the Court stated that “jurisdictional discovery [shall be] narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ [May 2, 2014] Motion to Dismiss. Discovery may not stray to merits issues.” (D.E. 33). STOFI argues that, because it has sovereign immunity unless it waives such immunity in its Charter or by contract, the only proper jurisdictional discovery against it concerning sovereign immunity goes to waiver, not to whether it is a subordinate economic entity of the Seminole Tribe of Florida. (See D.E. 38 at 8). The Court agrees. In accordance with binding precedent, STOFI is entitled to sovereign immunity unless and until it waives such immunity. Maryland Cas. Co. v. Citizens Nat. Bank of W. Hollywood, 361 F.2d 517, 520-22 (5th Cir. 1966); see also Inglish Interests, LLC v. Seminole Tribe of Florida, Inc., No. 2:10cv367FtM29DNF, 2011 WL 208289, at *5-6 (M.D. Fla. Jan. 21, 2011). Accordingly, it is ORDERED that jurisdictional discovery regarding STOFI is limited to the issue of whether STOFI waived sovereign immunity. Jurisdictional discovery shall not be permitted on the issue of whether STOFI is a subordinate economic entity of the Seminole Tribe of Florida, because, in the Eleventh Circuit, that issue is irrelevant with respect to whether STOFI has sovereign immunity. See Maryland Cas. Co., 361 F.2d at 520-22. Jurisdictional discovery shall be permitted on the issue of whether Ulizio and Osceola are also entitled to sovereign immunity.
It is further ORDERED that the forty-five day jurisdictional discovery period is to begin from the date of this order, as requested by the parties. Accordingly, the parties shall have until and including November 3, 2014, to complete jurisdictional discovery. This entry constitutes the ENDORSED ORDER in its entirety.
Signed by Judge Joan A. Lenard on 9/18/2014. (jn) (Entered: 09/18/2014)
2014 FBA DC Indian Law Conference Agenda — November 14, 2014
Here:
| 8:00 am | Registration |
| 8:30 am | Welcome & Prayer |
| 8:45 am | Roundtable on the Federal Trust Responsibility – Perspectives of a Federal Government Lawyer Government attorneys from Environmental Protection Agency, Department of Interior, Department of Justice and other Federal agencies will discuss the roles and responsibilities of federal lawyers when administering programs that impact tribes. They will also discuss how to navigate the bureaucracy on behalf of your clients. Speakers: |
| 9:45 am | Break |
| 10:00 am | Federal Recognition Recently the Department of the Interior issued proposed revisions to the regulations on the Federal acknowledgment of Indian tribes. This panel will discuss the new regulations, legislative efforts to obtain recognition, the potential recognition of Native Hawaiians, and the right to tribal self-determination that is recognized under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Moderator: Gina Allery |
| 11:00 am | Environmental Law and Indian Tribes The White House recently announced the new Tribal Climate Resilience Program to assist tribes in preparing for climate change and as part of that program, the Department of the Interior and the Environmental Protection Agency (EPA) are partnering to create a new subgroup on climate change under the White House Council on Native American Affairs. In addition, EPA unveiled its Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples in July. This panel will discuss the impact of climate change on tribal communities, EPA’s and other Federal agencies policies, and the incorporation of traditional ecological knowledge into agency decisions. Moderator: Wilda Wahpepah – Sheppard Mullin |
| 12:00 pm | Lunch Keynote Kevin Gover, Director of the National Museum of the American Indian |
| 1:30 pm | Indian Gaming Regulatory Act (IGRA) With the IGRA turning 25 last year, several legal, legislative and technological developments potentially threaten the ability of tribes to operate profitable gaming facilities. As the tribal gaming industry matures, technological advances in gaming machines are impacting the scope of class II and class III gaming and the rise of internet gaming could potentially impact brick and mortar operations. Additionally, the Obama Administration’s gaming decisions and policies are impacting tribal-state compact negotiations and a state’s role under the IGRA. This panel will discuss these topics and the potential pitfalls that each one presents to tribal gaming operations. Moderator: Loretta Tuell, Greenberg Traurig |
| 2:30 pm | Ethics What are the ethical considerations of representing opposing factions in tribal government disputes? Moderator: Richard Guest – NARF |
| 3:45 pm | Break |
| 4:00 pm | Tribal Energy Development With the Obama Administration’s focus on domestic energy development, tribal governments have become interested in exploring opportunities for alternative and renewable energy development. However, several obstacles to these projects remain. This panel will discuss some of the opportunities and challenges regarding alternative and renewable energy development in Indian country and the impact of the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) on these projects. Moderator: Jennifer Turner, U.S. Department of the Interior – Office of the Solicitor |
Second Circuit Briefs in Citizens against Casino Gambling in Erie County v. Hogen (FINAL)
Here:
Lower court materials here.
Update in Hualapai Ranch Tribal Court Litigation
Here are additional materials in WD at the Canyon v. Hwal’Bay Ba:J Enterprises Inc. (Hualapai Tribal Court):
Order setting telephonic hearing
Respondents’ Supplementary Brief Disclosure
Plaintiffs’ Disclosure Statement
Prior posts are here and here.
Update in Navajo Nation Election Dispute
Here is “Navajo Nation presidential candidate suffers setback after ruling” reporting that the Navajo President vetoed the bill that would have allowed Chris Deschene to remain on 
the ballot.
Also, “Navajo Language Fluency Still a Requirement for Tribal Candidates.”
On the motion for contempt (here), the Navajo Supreme Court’s website states:
The Supreme Court has set a hearing for the Petitioners’ Motion to Hold Respondents in Contempt of Court in Tsosie and Whitethorne v. Navajo Board of Election Supervisors and Navajo Election Administration, No. SC-CV-68-14. The hearing is scheduled for 10 a.m. on October 31, 2014, at the Chinle District Court. See order. The Supreme Court has also set hearings on October 31, 2014, at the Chinle District Court on costs and fees in SC-CV-57-14 and SC-CV-58-14 at 9 a.m., and in SC-CV-68-14, at 1 p.m.
The Navajo SCT previously issued an opinion on the merits here.
Prairie Island Indian Community Press Release on Challenge to NRC’s Spent Nuclear Fuel Continued Storage Rule
PRAIRIE ISLAND INDIAN COMMUNITY CHALLENGES NUCLEAR REGULATORY COMMISSION’S “CONTINUED STORAGE” RULE
Rule increases likelihood that more than 1.5 million pounds of nuclear waste will be stranded on Prairie Island indefinitely
Welch, Minn., Oct. 27, 2014 – The Prairie Island Indian Community today filed an appeal challenging the Nuclear Regulatory Commission’s (NRC) final rule on the Continued Storage of Spent Nuclear Fuel with the United States Court of Appeals for the District of Columbia Circuit. The Continued Storage Rule and the Generic Environmental Impact Statement were recently approved by the NRC and became effective as of October 20, 2014.
The states of New York, Connecticut and Vermont filed a separate appeal earlier today. In 2012, a coalition of the Prairie Island Indian Community, the states, and several environmental groups won a landmark decision that vacated the NRC’s Waste Confidence Decision and Temporary Storage Rule. In its decision, the Court of Appeals for the District of Columbia Circuit held that spent nuclear fuel “poses a dangerous, long-term health and environmental risk,” and that the NRC “can and must assess the potential environmental effects” of permanent onsite storage.
“The NRC has sidestepped its obligation to our Tribe to do a full and complete analysis of the risks of permanent onsite storage of nuclear waste 600 yards from our nearest residences,” said Tribal Council President Ronald Johnson. “It leaves communities like Prairie Island at considerable risk, exposing us to the vulnerabilities of aging facilities, human error and natural disasters for generations to come.”
Gaming Compact dispute, sales tax and liquor disputes between the Citizen Potawatomi Nation and the State of Oklahoma
Here are the materials in In re Revocation of Licenses/Permits of Citizen Potawatomi Nation (Okla. Tax Commission):
Stipulations-filed with exhibits
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