Clarkson, Spilde, and Claw Nez on Tribal Online Commerce

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.

E.D. Pennsylvannia Dismisses Claim Against Tribal Lender

Download memorandum here.

Court granted Defendant’s motion to dismiss in Finn v. Great Plains Lending (E.D. Penn. Feb. 23, 2016) for lack of jurisdiction.

Sonosky Press Release Regarding Federal Court Grants Final Approval to $940M Class Action Settlement with Indian Tribes

Download press release here.

Judge Approves Ramah Class Action Settlement

Ramah Final Approval Order Feb 24 2016

Ramah Final Approval Opinion Feb 24 2016

Dear Respected Tribal Leaders:

Earlier today, Judge Parker issued a final order approving the $940,000,000 Ramah class action settlement against the BIA.  We have attached the Order and Opinion. 

Congratulations to all of Indian Country!  It has been an honor and a privilege to be part of the team representing you and we look forward to implementing the settlement as quickly as possible.

As always, please feel free to contact us with any questions. 

Respectfully,

Lloyd, Don, and Lia

Navajo Nation RFP for Contract Attorney

Download RFP here.

The Navajo Nation Department of Justice is requesting proposals from interested attorneys/firms to provide legal services to the Navajo Nation Office of the Controller, the Navajo Nation Investment Committee (the “Investment Committee”), and the Attorney General in connection with financial and corporate matters and applicable Navajo Nation laws and policies.  Experience in the fields of Corporate, Finance, Real Estate, Tax and Navajo law is preferred.  Demonstration of these qualifications should include a description of your firm’s depth of experience in these fields and the nature of legal services you have provided in these fields over time.  Proposals must be received by email no later than 5:00 p.m. MST on Friday, March 4, 2016.  No Late Proposals Will Be Accepted.  Please send proposals and/or questions to: Lena Kee, Legal Secretary, at lkee@nndoj.org.

Nottawaseppi Huron Band Seeks Board Member for Waséyabek Development Company

TRIBAL COUNCIL SEEKS LETTERS OF INTEREST TO SERVE ON THE BOARD OF DIRECTORS OF WASÉYABEK DEVELOPMENT COMPANY, LLC.

The Tribal Council is soliciting letters of interest and statements of qualifications from NHBP Tribal Members and other qualified persons interested in being appointed to fill a vacant position on the Board of Directors of Waséyabek Development Company.

Waséyabek Development Company was created in May 2011 as a limited liability company, wholly-owned by the Nottawaseppi Huron Band, which is organized under the NHBP Limited Liability Code.  Waséyabek Development Company will serve as the vehicle through which business diversification strategies by the Tribal government will be planned and managed.

There are two (2) positions on the Board with approximate four  (4) year terms of office commencing July 1, 2016 and ending June 30, 2020.

 

MISSION AND PURPOSE OF WASEYABEK DEVELOPMENT COMPANY/ROLE OF BOARD OF DIRECTORS

As stated in its Articles of Organization and Operating Agreement, the mission and purpose of Waséyabek Development Company is to:

  • Create and stimulate the economy of the Band;
  • Generate profits to promote the growth and continuity of Waséyabek Development Company by investing in profitable companies, acquiring profitable companies and, when appropriate, developing new “start-up” companies for the purpose of:
    • Providing distributions of profits to the Tribal Government to fund essential government services and programs; and
    • Creating employment opportunities for Tribal members.

The day-to-day business activities of Waséyabek Development Company will be managed by a Chief Executive Officer hired by Waséyabek and by the individual business managers hired for specific businesses authorized.  During FY 2016, the Board of Directors will be continuing work to develop key strategic and organizational documents for the Company, including business development and investment criteria, financial management and reporting structures/procedures, compensation plans and personnel policies for enterprise employees, and other organizational documents.

The Board will oversee the hiring of a Chief Executive Officer and other business/financial consultants to be retained by Waséyabek to develop overall business plans, investment criteria and strategies for the Nottawaseppi Huron Band to further the mission and purposes of the Company.  Funding for the activities of Waséyabek Development Company will come from appropriations approved by the Tribal Council, the amount of which will be guided by Revenue Allocation Plan.

The Waséyabek Board of Directors will be responsible for maintaining regular reporting and accountability to both the Tribal Council and the Membership at large through the development of appropriate financial reporting and other communication procedures.

REQUIRED QUALIFICATIONS FOR APPOINTMENT

In accordance with the Operating Agreement for Waséyabek Development Company, at least one of the vacant Board position must be filled by a person who is an    enrolled member of NHBP or other person entitled to preference (spouses/parents of NHBP Members or other Native Americans) under the NHBP Indian Preference in Employment Code.  It is the Tribal Council’s desire to fill this position with a qualified person who is an enrolled member of NHBP.

All persons appointed to Board must possess the following qualifications  (as verified by an extensive background investigation and interview) to be considered for appointment.

  • Must be at least twenty-five (25) years of age; and
  • Possess a high school diploma or a General Equivalency Diploma; and
  • Have either:
    • A minimum of ten (10) years successful work experience in management, business administration, public administration or law; or
    • A minimum of five (5) years work experience in management, business administration, public administration or law and a bachelor’s degree in accounting, finance, or business administration,

provided, however, that not less than one (1) Board members shall be a financial professional (i.e. Certified Public Accountant, Financial Analyst or Management Accountant) or experience as business operations (i.e. CEO, COO, General Manager); and

  • Have demonstrated working knowledge of Tribal economic development strategies, including knowledge of Tribal sovereignty as it relates business development strategies; and
  • Have demonstrated history of personal and professional integrity, financial responsibility, and honesty and adherence to high ethical standards; and
  • Have the ability and willingness to provide detailed personal financial information to the Small Business Administration (for 8(a) Certification) and other agencies necessary to obtaining various business certifications; and
  • Have a willingness to commit to understand the Company, its Annual Strategic and Operating Plans, investment goals and strategies;
  • The ability to attend Board meetings and meetings of the Tribal Council and General Membership meetings on the Pine Creek Indian Reservation when needed; and
  • Have the ability and willingness to provide detailed personal and financial information and submit to extensive background investigation and interview; and
  • Must not, within the preceding ten (10) years, have been convicted of, or pled guilty or no contest to, any crime involving theft or fraud, any crime involving violence against persons, including sex offenses, or any felony or other crime punishable by a prison term of one (1) year or longer.

Persons who are proven subject matter experts in business who have understanding and demonstrated high-level (management) understanding and experience managing business operations and/or the financial or marketing initiatives associated with growing businesses are preferred.  Persons with such experience in technology (including hospitality support), energy, manufacturing and/or construction industries are especially encouraged to apply.

TERM OF OFFICE/COMPENSATION

Term: The individuals appointed with serve a four (4) year term of office (July 1, 2016-June 30, 2020).

Compensation:  Members of the Board of Directors will receive a monthly stipend of $2,000 for attendance at meetings and participation in conference calls/planning activities to be undertaken by the Board.  Board Members will also be eligible for reimbursement of travel and other expenses incurred in furtherance of Company activities in accordance with a Budget to be developed for Waséyabek Development Company.

STATEMENTS OF INTEREST/RESUMES SHOULD BE SENT TO THE FOLLOWING ADDRESS NO LATER THAN MARCH 31, 2016:

       NHBP TRIBAL COUNCIL
       ATTN: WASÉYABEK DEVELOPMENT COMPANY BOARD OF DIRECTORS
       1485 MNO-BMADZEWEN WAY
       FULTON, MI 49052

Grand River Enterprises Six Nations v. National Distributors Complaint

Here, filed in the N.D. Ga.:

1 Complaint

ASU e-Commerce Legal Update

Karrie Wichtman and Jen Weddle

  

Arizona State e-Commerce Conference

Patty Ferguson-Bohnee

  
Sequoyah Simermeyer

  

“Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation”

The University of Colorado Indian Law Clinic has posted “Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation” on SSRN.

Here is the abstract:

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks of oil development on American Indian reservations like Fort Berthold are distinct from development in other areas in the United States. The complex and shifting nature of federal Indian law presents legal and practical challenges to law enforcement in civil and criminal contexts. Further, the historical exploitation of Indian lands and people informs current social and economic conditions that contribute to increased sex trafficking of Native women and children.

This paper begins by describing the intersection of sex trafficking and oil and gas development on the Fort Berthold reservation. Next, the paper describes the jurisdictional regime within federal Indian law and other barriers to law enforcement that have created a situation ripe for trafficking and other crime on the Fort Berthold reservation. Third, the paper will examine strategies to address this complex issue including: corporate engagement of relevant companies; tribal capacity and coalition building; and remedies contained in the Violence Against Women Act of 2014. This paper asserts that all of the stakeholders involved in oil development on the Fort Berthold reservation – federal, state, tribal, and public and private companies – must work cooperatively to decisively eliminate sex trafficking of Native women and children.