economic development – Page 45

Second Circuit Affirms Otoe-Missouria Tribe v. New York Dept. of Financial Regulation

October 1, 2014Matthew L.M. Fletcher

Here is the opinion:

From the court’s syllabus:

Plaintiffs‐appellants (“plaintiffs”) appeal from the denial of a preliminary injunction by the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge). Plaintiffs are two Native American tribes, tribal regulatory agencies, and companies owned by the tribes that offered high interest, short‐term loans over the internet. The interest rates on the loans exceeded caps imposed by New York State law. When the New York State Department of Financial Services sought to bar out‐of‐state lenders from extending such loans to New York residents, the plaintiffs sued for a preliminary injunction, claiming that New York’s ban violated the Indian Commerce Clause. But plaintiffs bore the burden of proving that the challenged transactions fell within their regulatory domain, and the District Court held that they failed to establish a sufficient factual basis to find in their favor. Because this conclusion was a reasonable one, the District Court did not abuse its discretion in denying the injunction.

Briefs here. Lower court materials here.

Ninth Circuit Rejects Treaty Argument in King Mountain Tobacco v. McKenna

September 26, 2014Matthew L.M. Fletcher2 Comments

Here is the opinion.

The court’s syllabus:

Affirming the district court’s summary judgment, the panel held that the Yakama Treaty of 1855 did not preclude enforcement of the State of Washington’s escrow statute, which requires tobacco companies to place money from cigarette sales into escrow to reimburse the State for health care costs related to the use of tobacco products.

The panel held that Washington’s escrow statute was a nondiscriminatory law and that the activities of King Mountain Tobacco Co., a company owned and operated by an enrolled member of the Yakama Indian Nation, were largely off-reservation. Accordingly, absent express federal law to the contrary, King Mountain was subject to the escrow statute. The panel held that the plain text of the Yakama Treaty did not create a federal exemption from the escrow statute. Specifically, Article II of the Treaty, which established the boundaries of the Yakama reservation and reserved it for Yakama use and benefit, was not an express federal law that exempted King Mountain from the escrow statute. Nor was Article III, which reserved to the tribe the right to travel on public highways and the right to hunt and fish. The panel held that the district court did not err by declining to make findings regarding the Treaty’s meaning to the Yakama people at the time of its signing because the meaning to the Yakama people could not overcome the clear words of the Treaty.

Briefs here.

State ex rel Attorney General v. Grand River Enterprises — New Mexico

September 15, 2014Matthew L.M. Fletcher2 Comments

From April:

2014-32-091

An excerpt:

Defendant Grand River Enterprises Six Nations, Ltd., a tobacco company, appeals the district court’s denial of its motion to set aside a default judgment entered against it in an action brought by the State to force Grand River to contribute money into New Mexico’s tobacco escrow fund. On appeal, Grand River argues that the default judgment must be set aside because (1) the State failed to comply with the rules governing the service of process on foreign corporations; and (2) the district court did not have personal jurisdiction over Grand River when it entered the default judgment. Because we agree with Grand River that the district court lacked personal jurisdiction, we conclude that the district court’s default judgment is void and must be set aside.

En Banc Petition in Jackson v. Payday Financial LLC

September 15, 2014March 22, 2019Matthew L.M. Fletcher

Here:

En banc Petition

Clarkson Amicus Brief

Panel materials here.

Commentaries on Tribal Payday Lending

September 15, 2014Matthew L.M. Fletcher1 Comment

Barry Brandon’s WSJ op-ed here (subscription required): “The Feds Choke Off Native American Income.”

Above the Law’s commentary here (free): “The Legal Trick Payday Lenders Are Using To Skirt The Law“

CU NALSA Presentation and Third Panel

September 12, 2014Matthew L.M. Fletcher

CU NALSA

Jenn Weddle, Padraic McCoy, Tom Shipps, Conly Shulte, and Lynn Slade

Ninth Circuit Briefs in La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. Dept. of Interior

September 10, 2014April 13, 2015Matthew L.M. Fletcher1 Comment

Here:

La Cuna de Aztlan Opening Brief

Interior Answer Brief

La Cuna de Aztlan Reply Brief

Oral argument audio here. Video here.

Lower court materials here.

Grant Christensen on Cultural Property as a Form of Collateral in a Secured Transaction Under the Model Tribal Secured Transactions Act

September 10, 2014Matthew L.M. Fletcher

Grant Christensen has posted his paper, “Selling Stories or You Can’t Own This: Cultural Property as a Form of Collateral in a Secured Transaction Under the Model Tribal Secured Transactions Act,” on SSRN.

Here is the abstract:

The Model Tribal Secured Transactions Act was recently proposed by the National Conference of Commissioners on Uniform State Laws. This article takes the position that the model act, if adopted, will encourage economic development in Indian Country by creating a set of uniform rules which both non-Indians and Indians can utilize to promote lending. Critically – before it is widely adopted, this article implores the NCCUSL to consider including in the model act – language that would protect tribal cultural property; and in the absence of such language, encourages tribes to modify the act to accomplish this protection. The stakes include the potential loss of priceless real and personal, tangible and intangible, cultural property which itself form the linchpin of both tribal identity and cultural expression for many indigenous communities in the United States and beyond.