economic development

New Paper Focuses on Double Taxation in Indian Country

Sarah M Donnelly

Link to article here.

Citation and abstract:

Croman, K. S., & Taylor, J. B. (2016). Why beggar thy Indian neighbor? The case for tribal primacy in taxation in Indian country. Joint Occasional Papers on Native Affairs (JOPNA 2016-1). Tucson, AZ and Cambridge, MA: Native Nations Institute and Harvard Project on American Indian Economic Development.

The law governing taxation in Indian country is a mess. The accretion of common law precedents and the general tendency of states to assert primacy over the taxation of non-Indians create absurd outcomes. This article makes the case three ways. The argument based on the law shows that particularized, fact-specific precedents create a thicket of rulings that impede business development. The argument based on facts shows that these impediments to economic development harm not only tribal economies, but state and local economies, too. And the argument based on just claims testifies to the fact that the current arrangement could hardly have emerged from the actions of willing and informed governments operating in good faith. To borrow from Adam Smith, states beggar their Indian neighbors, seeking fiscal gain to the tribes’ detriment and, ultimately, their own. We conclude by recommending actions to bring fairness and certainty to the law governing taxation in Indian country.

City Of Pocatello Prohibits Business with Shoshone-Bannock Tribes

Sarah M Donnelly1 Comment

As tweeted by Native News Online with link to article:

Excerpt:

The City’s contract provisions expressly state the company renting land from the City at the airport shall “not enter into any written agreement with the Tribes” without the City’s approval.  Further, the agreement provides if the City’s tenant receives communications from the Tribes, the tenant must “immediately provide” the City “with a copy of any written correspondence or material” received from the Tribes.

FHWA Request for Comments and Nominations for Negotiated Rulemaking Committee

Sarah M Donnelly

Download notice from the Federal Register here.

The Federal Highway Administration is announcing its intent to establish a negotiated rulemaking committee to develop a proposed rule to carry the Tribal Transportation Self-Governance Program (TTSGP) as required by Section 1121 of the Fixing America’s Surface Transportation (FAST) Act. The FHWA will select the tribal representatives for the committee from among elected officials of tribal governments (or their designated employees with authority to act on their behalf), acting in their official capacities and whose tribes have existing Title 23 U.S.C. funding agreements with the Department. To the maximum extent possible, FHWA will consider geographical location, size, and existing transportation and selfgovernance experience, in selecting tribal committee representatives. Per the FAST Act, the committee will assist in the development of a Notice of Proposed Rulemaking that contains the proposed regulations needed to implement the TTSGP.

BIA’s Brief in Support of Partial Dismissal in Mashpee Wampanoag Carcieri Challenge

Sarah M Donnelly1 Comment

Here are the materials, so far, in Littlefield et. al. v. U.S. Department of Interior (D. Mass.):

Doc. 1 – Complaint for Declaratory and Injunctive Relief

Doc. 10 – United States’ Memorandum of Law in Support of Motion for Partial Dismissal

Except:

Plaintiffs’ Fifth Cause of Action seeks a declaration that the IRA, enacted over eighty years ago, is unconstitutional. Plaintiffs specifically allege that the IRA’s provision authorizing the Secretary to acquire land in trust on behalf of federally-recognized Indian tribes somehow reflects an unconstitutional delegation of legislative authority. This legal question, however, has long been resolved against Plaintiffs by all courts to consider it, including the First Circuit in a decision binding on this Court. Federal courts have held, consistently and repeatedly, that the Secretary’s authority to acquire land in trust under the IRA does not violate the United States Constitution because there are sufficient intelligible principles provided in the statute and its legislative history to guide the Secretary’s discretion whether to acquire land in trust on behalf of a tribe. Moreover, it has been over 85 years since the Supreme Court invalidated any statute on the grounds of excessive delegation of legislative authority. The Supreme Court in fact has only found two statues to be a violation of the non-delegation doctrine, neither of which are comparable to the statute at issue here. Accordingly, the Court must dismiss Plaintiffs’ Fifth Cause of Action.

Request for Proposals – Court Assessments in Alaska-AVCP & California

Sarah M Donnelly

As a courtesy notice, the below Request for Proposals are available on the Federal Business Opportunities website. Please note, they are advertised as 100% Indian Small Business Economic Enterprise Set-aside in accordance with the Buy Indian Act.

  • RFQ No. A16PS00308, closes 4/25/2016, BIA Office of Justice Services District IX (California) Tribal Court Assessments
  • RFQ No. A16PS00309, closes 4/25/2016, BIA Office of Justice Services District IX (California) Tribal Court Assessments
  • RFQ No. A16PS00310, closes 4/25/2016, BIA Office of Justice Services District IX (Alaska – AVCP) Tribal Court Assessment

Please direct all questions to the Contracting Officer listed on the solicitation.

Tribal NLRB Background Materials

Matthew L.M. Fletcher1 Comment

Here are the materials relevant to Little River Band of Ottawa Indians Tribal Government v. NLRB.

Supreme Court cert stage briefs

Little River Petition and Appendix COMBINED

USET Amicus Brief

Final CO-UMUT Amicus Cert Petition – Saginaw Chippewa and LRB

National Right to Work Legal Defense Foundation

CNIGA Amicus

NCAI Amicus

Michigan Amicus Brief

US Cert Opposition

Little River Reply

Sixth Circuit En Banc Stage Continue reading →

Third Circuit Affirms Dismissal of Suit by Borrower’s Suit against Assignee of Tribal Sovereign Lender

Matthew L.M. Fletcher

Here are the materials in Goldenstein v. Repossessors Inc.:

CA3 Opinion

Appellant Brief

Appellee Brief

Reply

Lower court materials here.

9th Cir. Cites Standing in Dismissal for La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. DOI

Sarah M Donnelly

Doc. 47 – Memorandum

Excerpt:

Plaintiffs have failed to establish standing to pursue a claim under Sections 1702 and 1705 of the EPAct, 42 U.S.C. §§ 16512, 16516. To demonstrate individual standing, a plaintiff must “have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386 (2014) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).  Even if we assume Plaintiffs adequately pled injury-in-fact and redressability, they have not sufficiently alleged causation. Plaintiffs make a conclusory allegation that the Genesis Solar Energy Project (“Project”) would not have gone forward without the federal loan guarantee, but they allege no supporting facts. Plaintiffs have failed to demonstrate that their alleged injury—suffering harm to environmental and cultural resources at the Project site—is “fairly traceable” to the Federal Defendants’ approval of the loan guarantee for the Project.

Amended Ramah Findings and Conclusions

Sarah M Donnelly

Download Findings of Fact & Conclusions of Law here.

Link to previous coverage here.

Clarkson, Spilde, and Claw Nez on Tribal Online Commerce

Matthew L.M. Fletcher

Gavin Clarkson, Kate Spilde, and Carma Claw Nez have posted “Online Sovereignty: The Law and Economics of Tribal Electronic Commerce” on SSRN.

Here is the abstract:

In 1886, the US Supreme Court wrote that, for Indian tribes, “the people of the states where they are found are often their deadliest enemies.” Recently, state agencies and regulators have continued that tradition of hostility by improperly attempting to regulate electronic commerce businesses operated by tribal governments that are more properly subject to regulations established by tribal law and subject to federal oversight. Despite the fact that these online businesses operate exclusively under tribal law and make their tribal affiliation clear to customers, certain state regulators have demanded absolute compliance with state law, even when such laws are from states thousands of miles away. Not only does this overreaching by uninformed state regulators limit the products available to consumers but it also severely undercuts on-reservation economic development, imperils tribal electronic commerce, and challenges basic notions of tribal sovereignty.

Businesses and consumers entering into commercial contracts rely heavily on consistency and predictability in contracting, including when the parties mutually agree to apply tribal law or utilize tribal courts to resolve disputes. Uniform interpretation and enforcement of such agreements are critical to ensuring continued investment in tribal businesses. With over one quarter of American Indians living in poverty, nearly twice the national average, it has never been more important to promote confidence in the Indian economy. When courts do not give full force and effect to contracting parties’ desire to resolve their private disputes using tribal courts and tribal law, this confidence is threatened. While it is unclear how this controversy will ultimately play out, one thing is certain: states are not only undermining tribal innovation and harming tribal economies but also attacking tribal sovereignty itself.

Perhaps lost in the legal rancor, however, are the very real human and economic consequences of the loss of tribal revenues from e-commerce business, as well as the potential damage to tribal e-commerce as a whole. In this article, we present results of our empirical research into the economic impact of tribal online lending in Indian Country. We first frame the issue with a brief summary of the legal foundations for tribal e-commerce and tribal lending in particular. We then present several case studies of tribes that have engaged in online lending, focusing on the direct economic impact to those tribal communities. We conclude the article with policy arguments as to why state and federal regulators should support rather than suppress tribal e-commerce, including tribal small-dollar online lending.