Author: Matthew L.M. Fletcher

New Article in ABA Trade Journal Article on Tribal Payday Lending

Matthew L.M. Fletcher

The ABA Business Law Section’s journal, Business Law Today, has published “The Future of Tribal Lending Under the Consumer Financial Protection Bureau.”

An excerpt:

Some Indian tribes – particularly impecunious tribes located remotely from population centers, without sufficient traffic to engage profitably in casino gambling – have found much-needed revenue from consumer lending over the Internet.

In a typical model, the tribe forms a tribal lending entity (TLE) that is financed by a third party. The TLE then makes loans over the Internet to consumers nationwide, usually on terms that are unlawful under the internal laws of the states where the borrowers reside. Because the TLE is deemed an “arm” of the tribe, the TLE benefits from the tribe’s sovereign immunity. As a result, the TLE may be sued only under very limited circumstances; and, perhaps even more importantly, the TLE is exempt from most state-court discovery intended to unearth the economic relationship between the TLE and its non-tribal financier.

Because this model has, at least to date, provided a relatively bulletproof means to circumvent disparate state consumer-protection laws, the model has attracted Internet-based payday and, to a lesser extent, installment lenders. Although data are spotty, it is likely the fastest-growing model for unsecured online lending. Tribal sovereign immunity renders this model the preferred legal structure for online lenders desirous of employing uniform product pricing and terms nationwide, including for loans to borrowers who reside in states that prohibit such lending entirely.

The tribal model is increasingly being adopted by online lenders who had formerly employed other models. Yet the legal risks of the model to those who would “partner” with TLEs are rarely emphasized.

Federal Court Dismisses Treaty “Bad Men” Claim in Police Killing on Uintah and Ouray Indian Reservation

Matthew L.M. Fletcher

Here are the treaty claim materials in Jones v. Norton (D. Utah):

DCT Order Dismissing Treaty Claim

Motion for Judgment on Pleadings

Plaintiffs’ Opposition

Reply

United States v. Sun Bear — CA8 Rejects SORNA Challenge (Major Crimes Act Conviction)

Matthew L.M. Fletcher

Here is the opinion:

US v Sun Bear

King & Clark on Navigating VAWA

Matthew L.M. Fletcher1 Comment

Here, from ICT.

An excerpt:

Congress’s recognition of tribal criminal jurisdiction comes with some limitations and preconditions, however. Tribes wishing to take advantage of VAWA’s jurisdictional provisions may need to amend current tribal codes, hire new judges, and devote resources to pay for public defenders in order to qualify. Moreover, there remain significant limitations on who can be prosecuted in tribal courts. Here is a brief summary of the new law’s requirements and limitations: Continue reading →

NYTs on the Schimmel Sisters

Matthew L.M. Fletcher

Here.

An excerpt:

Although basketball has long been the most popular sport on Indian reservations, seldom has that esteem translated into great performance in the highest college and professional ranks. An N.C.A.A. study indicated that during the 2011-12 academic year, only 21 women and 4 men identified as American Indian/Alaska Native participated among the 10,151 basketball players at the Division I level.

The Schimmel sisters, who belong to the Confederated Tribes of the Umatilla in eastern Oregon, are not only participating, but also have become indispensable members of Louisville’s team. Shoni Schimmel, a 5-foot-10 junior guard, leads the Cardinals in scoring at 14.4 points a game and has seemingly unlimited range on her arcing 3-point shot. Jude Schimmel, a 5-5 sophomore, is the team’s steady sixth man.

Kyle Whyte — “Justice Forward: Tribes, Climate Adaptation and Responsibility”

Matthew L.M. Fletcher

Kyle Whyte has posted yet another paper, “Justice Forward: Tribes, Climate Adaptation and Responsibility,” on SSRN. It is forthcoming in Climatic Change.

Here is the abstract:

Federally-recognized tribes must adapt to many ecological challenges arising from climate change, from the effects of glacier retreat on the habitats of culturally significant species to how sea leave rise forces human communities to relocate. The governmental and social institutions supporting tribes in adapting to climate change are often constrained by political obstructions, raising concerns about justice. Beyond typical uses of justice, which call attention to violations of formal rights or to considerations about the degree to which some populations may have caused anthropogenic climate change, a justice framework should guide how leaders, scientists and professionals of all heritages and who work with or for federally-recognized tribes understand what actions are morally essential for supporting tribes’ adaptation efforts. This paper motivates a shift to a forward-looking framework of justice. The framework situates justice within the systems of responsibilities that matter to tribes and many others, which range from webs of inter-species relationships to government-to-government partnerships. Justice is achieved when these systems of responsibilities operate in ways that support the continued flourishing of tribal communities.

House Resources Committee Hearing on Native American Energy Act Postponed

Matthew L.M. Fletcher

Here.

The bill (“To facilitate the development of energy on Indian lands by reducing Federal regulations that impede tribal development of Indian lands, and for other purposes”) is here.

PBS Frontline: Where Tribal Justice Works

Matthew L.M. Fletcher

Here.

An excerpt:

In 2011, a man in northeastern Oregon beat his girlfriend with a gun, using it like a club to strike her in front of their children.

Both were members of the Confederated Tribes of the Umatilla Indian Reservation. The federal government, which has jurisdiction over major crimes in Indian Country, declined to prosecute.

So the tribes stepped in. The man was convicted in their courts and sentenced to 790 days in federal prison.

But had the assault happened a week earlier, the case could never have gone to trial.

The Umatilla tribes had recently enacted new provisions from a federal law, the Tribal Law and Order Act, that allowed Native American courts to try their own people for felony crimes instead of relying on the federal authorities.

Without those provisions, once federal prosecutors declined the case, the woman would have had no other legal recourse.

Brent Leonhard, the general counsel for the Umatilla tribes, is proud of the conviction: “I personally was concerned that the victim at some point would end up dead,” he said.

“People here were pretty happy to see the person held accountable.”

Wisconsin COA Reverses Conviction of American Indian After Prosecutor Struck Only Indian Juror

Matthew L.M. Fletcher

Here is the opinion in State v. Snow:

Wisconsin v. Snow

An excerpt:

Karen Lynne Snow appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration and an order denying her motion for a new trial. Snow argues that she was denied equal protection under the United States and Wisconsin Constitutions when the prosecutor used a peremptory strike to remove the only Native American prospective juror and referenced that prospective juror’s “Ho-Chunk culture” when explaining the strike. I conclude that the circuit court clearly erred when it ruled that the prosecutor’s peremptory strike of the prospective juror did not violate Snow’s right under the Equal Protection Clause and therefore reverse the conviction and remand the case for a new trial.

Interesting Election Challenge at Eastern Band Cherokee

Matthew L.M. Fletcher1 Comment

Here is the petition for a writ of mandamus in the Cherokee Supreme Court:

Petition for a Writ of Mandamus 3262013

The dispute centers around a new election code, of which the parties disagree as to when the next election for Principal Chief will be — in 2013 or 2015.