Author: Matthew L.M. Fletcher

Seventh Circuit Rules against Western Sky in Jackson v. Payday Financial LLC — A Warning to Indian Country

Matthew L.M. Fletcher5 Comments

Here is the opinion:

CA7 Opinion

Based on these findings, we now conclude that the Plaintiffs’ action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. We also cannot accept the Loan Entities’ alternative argument for upholding the district court’s dismissal: that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation. As the Supreme Court has explained, most recently in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. The Loan Entities have not established a colorable claim of tribal jurisdiction, and, therefore, exhaustion in tribal courts is not required. Accordingly, we cannot uphold the district court’s dismissal on this alternative basis.

Primary briefs here. Supplemental briefs here.

As should be expected by this time, payday lending in Indian country is creating bad law for tribal interests. This case involved a privately owned payday lending operation. Tribally-owned operations will be scrambling to distinguish themselves from this case. Particularly troublesome is the holding and (hopefully) dicta from the opinion that suggests tribal courts have no jurisdiction involving off-reservation lending operations, even though the operation is based in Indian country and even though the lending instrument includes a forum selection clause naming a tribal forum.

My initial recommendations to tribal leaders and counsel — shut down on-reservation-based payday lending operations operated privately immediately. My second recommendation is to ensure that tribal regulations of tribally owned payday lending operations are independent and robust. In other words, tribes must be able to withstand the kind of searching inquiry into their regulatory scheme that the federal court did in this case. Can tribal sovereign lenders say that?

“Dinosaur 13” is Bullshit

Matthew L.M. Fletcher

According to Slate, anyway, in its article, “Don’t Believe the Anti-Government Tale Spun by This New Dinosaur Documentary.”

The doc is from the POV of a losing party in a famed Indian property case, Black Hills Institute v. South Dakota School of Mines and Technology.

An excerpt from the third and final opinion:

Black Hills Institute of Geological Research and Black Hills Museum of Natural History Foundation (collectively, “Black Hills”) appeal the district court’s1 judgment in favor of the United States. The district court found that the United States holds title to a valuable Tyrannosaurus rex skeleton (“the fossil” or “Sue”) in trust for Maurice Williams (“Williams”), an individual Indian who is the beneficial owner of trust land on which Black Hills discovered the fossil. Joseph M. Butler appeals separately from the district court’s order imposing Rule 11 sanctions on Butler for naming an improper party as a defendant. We affirm the district court’s judgment that the United States holds trust title to the fossil and reverse its Rule 11 order.

Estom Yumeka Maidu Tribe of the Enterprise Rancheria Sues California for Failure to Negotiate in Good Faith Under IGRA

Matthew L.M. Fletcher

Here is the complaint in Estom Yumeka Maidu Tribe of the Enterprise Rancheria v. California (E.D. Cal.):

1 Complaint

An excerpt:

This is an action brought under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2710(d)(7)(A)(i), to compel Defendant the State of California (the “State” or “California”) to comply with IGRA’s requirement that it negotiate in good faith with Plaintiff Estom Yumeka Maidu Tribe of the Enterprise Rancheria (“the Tribe”) for the purpose of entering into a tribal-state gaming compact pursuant to IGRA.

Federal Bankruptcy Court Holds Congress Abrogated Tribal Immunity in Bankruptcy Act

Matthew L.M. Fletcher2 Comments

Here are the materials in In re Greektown Holdings LLC (E.D. Mich. Bkrcy.):

453 SSM Renewed Motion to Dismiss

463 Opposition

469 SSM Reply

474 Bankruptcy Court Order

An excerpt:

 

In sum, although Indian tribes have a “thumb on the interpretive scale” tending to tip the balance in their favor in the event of an ambiguity or lack of clarity, that does not come into play because, in this Court’s view, Congress sufficiently, clearly, and unequivocally intended to abrogate their sovereign immunity in the subject statute.

 

Materials in Effort to Partition Indian Allotment

Matthew L.M. Fletcher

Here are the materials so far in Haeker v. United States Government (D. Mont.):

21 US Motion to Dismiss

22 Response

23 US Reply

24 MJ R&R

An excerpt:

Plaintiff Kurt Haeker (“Haeker”) seeks to partition his undivided fee interest in land within Indian Allotment 3316 on the Crow Indian Reservation. See Second Amend. Cmplt (ECF 19). The United States holds the legal title to the remaining undivided legal interest in trust for the benefit of several individual Indian allottees.
Pending is the United States’ motion to dismiss for lack of subject matter jurisdiction. ECF 20. Having considered the parties’ arguments and submissions, the Court makes the following findings and recommends that the motion be granted.

Wash. SCT Decides Outsource Servs. Mgmt. v. Nooksack Bus. Corp.

Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Washington State courts have jurisdiction over civil cases arising on Indian reservations as long as it does not infringe on the sovereignty of the tribe. At issue in this case is whether Washington State courts have jurisdiction over a civil case arising out of a contract in which the tribal corporation waived its sovereign immunity and consented to jurisdiction in Washington State courts. We hold that it does not infringe on the sovereignty of the tribe to honor its own corporation’s decision to enter into a contract providing for jurisdiction in Washington State courts.

Briefs and other materials here.

Useful Scholarly Materials on RFRA, the Eagle Act, and Hobby Lobby

Matthew L.M. Fletcher

I urge readers to check out two papers by Kati Kovacs at Rutgers Law School. She formerly worked in DOJ ENRD. She just published Eagles, Indian Tribes, and the Free Exercise of Religion is available online, http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2863&context=llr, and has a forthcoming piece on Hobby Lobby and the Eagle Act, entitled Hobby Lobby and the Zero-Sum Game, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484613.

MSU Law Alum (Erin Oliver) Named to Indiana Native American Indian Affairs Commission

Matthew L.M. Fletcher1 Comment

Congrats to Erin!!!!

Here:

Native American Indian Affairs Commission

  1. John Warren (St. Joseph County), appointed to serve a four-year term through July 31, 2018.  Mr. Warren will also serve as Chairman.
  2. John Boyd (Hamilton County), appointed to serve a four-year term through July 31, 2018
  3. Nathan Underwood (Floyd County), appointed to serve a four-year term through July 31, 2018
  4. Shannon-Marie Turner (Morgan County), appointed to serve a four-year term through July 31, 2018
  5. Erin Oliver (Tippecanoe County), appointed to serve a four-year term through July 31, 2018
  6. Kenneth Eagle (Starke County), appointed to serve a four-year term through July 31, 2018
  7. Tracy Locke (Tippecanoe County), appointed to serve a four-year term through July 31, 2018
  8. Catherine “Katie” Morris (Dearborn County), appointed to serve a four-year term through July 31, 2018

12th Annual Northwest Gaming Law Summit

Matthew L.M. Fletcher

Here:

12th Annual Northwest Gaming Law Summit Brochure

Seattle Law School Symposium: “The Future of Trust Administration” — October 3, 2014

Matthew L.M. Fletcher1 Comment

Here is the conference website.

Agenda here. Blurb:

We are witnessing a convergence of several factors that could substantially alter the course of future trust administration. Tribal leaders and resource managers are gaining recognition, respect, access to capital, and political clout. The Secretarial Commission on Trust Administration and Reform issued its report and recommendations in December, 2013. The fiscal challenges confronting the federal government have already dramatically altered workforces and budgets for domestic discretionary programs, which includes the programs charged with carrying out the trust responsibility. External forces beyond the boundaries of Indian Country continue to adversely affect the environment and threaten the ability of tribes to access and utilize resources that are vital to sustaining their cultures and economies. The opportunity to significantly improve the benefits that tribal communities can gain from sound management of their natural resource heritage is fleeting. The time is ripe for creative, thoughtful exploration of alternative futures for trust administration and resource stewardship.

The Symposium will facilitate multi-party dialogue regarding alternative futures for trust administration with the goal of developing actionable recommendations as well as providing the basis for new scholarship to support the recommendations.

Lots of Indian law rockstars here!