economic development

In an action brought by the Quinault Indian Nation alleging a scheme to defraud the Nation of cigarette taxes, the panel affirmed the district court’s dismissal of counterclaims as barred by the Nation’s sovereign immunity.

The panel held that if brought in a separate suit against the Nation, the counterclaims would be barred by sovereign immunity. Asserting the claims as counterclaims did not change the sovereign-immunity analysis. The panel concluded that the Nation did not waive its sovereign immunity because it filed the underlying suit but took no further action that unequivocally waived its immunity to the counterclaims, and the counterclaims did not qualify as claims for recoupment.

Virginia Federal Court Confirms Immunity of Tribal Sovereign Lending Entity

August 28, 2017August 28, 2017Matthew L.M. Fletcher

Here are the materials in Howard v. Plain Green (E.D. Va.):

Great Plains Lending v. Consumer Financial Protection Board Cert Petition

August 14, 2017November 24, 2017Matthew L.M. Fletcher1 Comment

Here:

Cert Petition

Question presented:

Whether a generally applicable federal statute, which is silent as to its applicability to Indian Tribes, should nevertheless be presumed to apply to Tribes.

Lower court materials here.

UPDATE:

NAFSA Amicus Brief

States Amicus Brief

US Cert Opp Brief

Making Change: Nick Tilsen

July 6, 2017Teresa Walrod

On South Dakota’s Pine Ridge Reservation, Nick Tilsen is upending entrenched poverty and rebuilding his Lakota community.

HERE.

Georgia Appellate Court Vacates Arbitration Award against Guidiville Band of the Pomo Indians

June 20, 2017June 20, 2017Matthew L.M. Fletcher

Here is the opinion in Churchill Financial Management Corp. v. ClearNexus Inc. (Ga. Ct. App.):

Ga Ct App Opinion

An excerpt:

Most courts that have addressed this issue have determined that tribal sovereign immunity extends to entities known as chartered tribal corporations when they are “arms of the tribe.” Whether a corporation is an “arm of the tribe” protected by tribal sovereign immunity generally is determined based on a consideration of tribal involvement in the creation and control of the entity, intent to clothe the entity with immunity, and whether the entity serves tribal sovereign interests such as economic development.

Although neither the arbitrator nor the superior court engaged in an analysis based on any factors to determine whether Churchill is an arm of the Tribe, ClearNexus has conceded that Churchill is an arm of the Tribe. Additionally, Churchill’s articles of incorporation stated that “[t]he Corporation shall be wholly owned by the Tribe for the benefit of the Tribe and its members” and is clothed with the immunity of the Tribe. Therefore, we need not adopt a particular approach to determine this issue at this time, and we need not remand in order for the superior court to make this determination.

Federal Court Dismisses Wisconsin Oneida Suit over Renewable Energy

June 7, 2017June 7, 2017Matthew L.M. Fletcher

Here are the materials in Oneida Seven Generations Corporation v. City of Green Bay (E.D. Wis.):

10 Green Bay Motion to Dismiss

14 Opposition to 10

17 Reply

19 DCT Order

An excerpt:

Plaintiffs Oneida Seven Generations Corporation (OSGC) and Green Bay Renewable Energy, LLC, (GBRE) filed this action against the City of Green Bay pursuant to 42 U.S.C. § 1983 alleging the City violated their rights to substantive and procedural due process when the Common Council voted to revoke a conditional use permit it had granted only one year earlier. The case is before the Court on the City’s motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules for Civil Procedure. The City also contends that the complaint fails to allege facts showing GBRE has any interest or suffered any loss in the transaction and that OSGC lacks capacity to sue under the laws of the Oneida Nation under which it was chartered. For these reasons, as well, the City argues that the claims against it should be dismissed.