economic development

New Study: “Indian Tribal Government Access to Tax-Exempt Bond Financing”

Matthew L.M. Fletcher

Edith Brashares and Siobhan O’Keefe have posted “Indian Tribal Government Access to Tax-Exempt Bond Financing” on SSRN.

Here is the abstract:

While prior research focuses on Federal assistance to Native American tribal governments through spending programs, we examine tax incentive use by tribes. Tribal governments can issue tax-exempt bonds where the interest rates are lower because the Federal government does not tax bondholder on the interest they receive. To provide context, we briefly summarize the tax rules for tax-exempt bonds and describe tribal tax-exempt borrowing between 1987 and 2010. These data have not been published previously. Unlike most studies of tax-exempt bonds that examine how much is borrowed, we start by modeling the decision of a tribal government to borrow using tax-exempt bonds. We find tribes with resources, either gaming income or royalties, but that have members in need are more likely to borrow using tax-exempt bonds. Of those tribes that do borrow, the amount increases with the interest rate spread relative to Treasuries, gaming income and per capita income.

Cheyenne Arapaho Tribes of Oklahoma v. Jewell, Complaint and Accompanying Documents

Kate Fort

Complaint here.

May 1, 2013 Return of Compact Amendment Letter here.

April 5, 2013 Settlement Agreement here.

August 1, 2013 Disapproval Letter here.

Nov. 6, 2013 Disapproval letter here.

News coverage via The Oklahoman here.

American Public Media “Marketplace” Shows on Crow and Lummi Coal News

Matthew L.M. Fletcher1 Comment

Thanks to D.L.:

The American Public Media show “Marketplace” is doing a series on coal, and two of their stories have focused on Indian tribes.  The first, about coal mining on the Crow Reservation, is more about the tribal economy; but the second, about a proposed coal shipping terminal in Washington state, has some legal issues (whether treaty fishing rights might be used to defeat the proposed coal terminal).

Both stories can be found at http://www.marketplace.org/topics/sustainability/coal-play

Fletcher Paper on the Seminole Tribe and the Origins of Indian Gaming

Matthew L.M. Fletcher

At the invitation of Alex Pearl and the FIU Law Review to write a symposium piece on Florida Indian history and law, a challenge for me since I know very little about it, I came up with “The Seminole Tribe and the Origins of Indian Gaming.” Assuming the law review finds it publishable, it will appear in the FIU Law Review alongside the work of luminaries like Siegfriend Weissner and Sarah Krakoff.

Here is the abstract:

The Seminole Tribe of Florida has played perhaps the most important role in the origins and development of Indian gaming in the United States of any single tribe. The tribe opened the first tribally owned high stakes bingo hall in 1979. The tribe in 1981 was involved in one of the earliest lower court decisions forming the basis of the legal theory excluding most states from the regulation of high stakes bingo, a theory that Congress largely codified in the Indian Gaming Regulatory Act (IGRA) years later. The tribe was a party to the Supreme Court decision in 1996 that radically altered the bargaining power between tribes and states over the negotiation and regulation of casino-style gaming under IGRA. And more recently, the tribe has been a leading participant in negotiations and litigation over the regulatory landscape of Indian gaming after the 1996 decision. The Tribe is one of the most successful Indian gaming tribes in the nation.

This paper traces that history, but also offers thoughts on how the culture and traditional governance structures of the Seminole Tribe played a part in its leadership role in the arena of Indian gaming.

Colorado COA Dismisses Colorado AG’s Appeal of Cash Advance Matter

Matthew L.M. Fletcher

Here:

Colorado v Cash Advance Colo. COA Opinion

Lower court opinion here.

Thurston County Attempt to Widen Chehalis Tribes’ Great Wolf Lodge Tax Dispute Fails

Matthew L.M. Fletcher

Here are the new materials in Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization (W.D. Wash.):

210 County Motion for Declaratory Judgment

217 Chehalis Response

218 DCT Order Denying County Motion

An excerpt:

On November 21, 2013, Defendants filed a motion for declaratory judgment requesting that the Court “enter a declaratory judgment that the property taxes on the non-permanent, removable business personal property are not preempted as a matter of law . . . .” Dkt. 210 at 8–9. On December 9, 2013, Plaintiff opposed the motion on the grounds that it is procedurally improper and seeks relief outside of the pleadings. Dkt. 217 at 4–8. The Court agrees with Plaintiff on both points because (1) the amended complaint for declaratory judgment seeks relief for improvements that are not removable (Dkt. 46, ¶ 19) and (2) “a party may not make a motion for declaratory relief, but rather, the party must bring an action for a declaratory judgment.”

Supreme Court Denies Grand Canyon Skywalk Development Cert Petition

Matthew L.M. Fletcher1 Comment

Here is today’s order list.

Cert petition was here.

Contract Breach Claim against Delaware Tribal Officials Survives in Pennsylvania Federal Court

Matthew L.M. Fletcher

Here are the materials in Magyar v. Kennedy (E.D. Pa.):

11 Motion to Dismiss

12 Response

18 Reply

23 Motion to Dismiss Count 1

24 Response

31 DCT Order Denying Motion to Dismiss Count 1

An excerpt:

Thus, based upon an examination of the Second Amended Complaint and its Exhibits, we determine that Plaintiff has met his burden to convince us that Defendants acted beyond their official capacity and outside the scope of their authority when they terminated Plaintiff’s Agreements and failed to compensate Plaintiff for the services he rendered in June 2012. Accordingly, we conclude that the Second Amended Complaint alleges facts sufficient to persuade us that Defendants are not protected by sovereign immunity in connection with Count One of the Second Amended Complaint.

Hopi Tribe Objection to Interior’s Intention to Enforce Stricter Air Quality Standards at Navajo without Hopi’s Input

Matthew L.M. Fletcher

Here:

Hopi Letter to Secretary of the Interior

An excerpt:

On September 4, 2013, the Hopi Tribe (“Tribe”) wrote to you expressing its serious concerns regarding the Department oflnterior’s (“DOl”) decision to join with the Salt River Project (“SRP”) and others to develop and endorse a proposed Altemative (“SRP- Altemative”) to the pending EPA rulemaking that would set stricter air quality standards and require the Best Available Retrofit Technology (“BART”) for the Navajo Generating Station (“NOS”), a coalfired power plant located on the Navajo Reservation in northeastern Arizona. In our letter, we also informed you that the Tribe would be hosting DOl attomey, Letty Belin, for a meeting (on September 5, 2013) that she had requested in order to discuss the proposed SRP-Altemative to the EPA rule, including the Tribe’s exclusion from  the process. As a result of the Tribe’s meeting with Ms. Belin, the Tribe now has greater  concerns regarding DOl’s explanations for its decision to exclude the Hopi Tribe from the  process and its support of the proposed SRPAlternative. Rather than satisfying the  concerns expressed by the Tribe, Ms. Belin’s explanation of the basis for DOl’s decisions  merely senred to underscore DOI’s disregard of the Tribe’s interests as a major  stakeholder in this matter and its violation of the trust responsibility it owes to the Hopi Tribe.

Documents Reveal Pacific International Terminal’s Disturbance of Native Archaeological Site in Washington

Victoria Sweet

Excerpts from the article:

Three summers ago the company that wants to build the largest coal export terminal in North America failed to obtain the environmental permits it needed before bulldozing more than four miles of roads and clearing more than nine acres of land, including some wetlands.

Pacific International Terminals also failed to meet a requirement to consult first with local Native American tribes, the Lummi and Nooksack tribes, about the potential archaeological impacts of the work. Sidestepping tribal consultation meant avoiding potential delays and roadblocks for the project’s development.

Despite the ongoing review of the non-permitted disturbance at the site, the larger review of potential archaeological impacts of the Gateway Pacific Terminal under the National Historic Preservation Act got underway in late July.

It also led to the disturbance of a site from which 3,000-year-old human remains had previously been removed — and where archeologists suspect more are buried.

Pacific International Terminals and its parent corporation, SSA Marine, subsequently settled for $1.6 million for violations under the Clean Water Act.

According to company documents that were released during the lawsuit and subsequently shared with EarthFix, Pacific International Terminals drilled 37 boreholes throughout the site, ranging from 15 feet to 130 feet in depth, without following procedures required by the Army Corps of Engineers under the National Historic Preservation Act. . . .

King said Pacific International Terminals’ unpermitted drilling and disturbance at Cherry Point could put approval of the Gateway Pacific Terminal at risk because the company skirted the requirements of the so-called “106 process” under the National Historic Preservation Act.

“I think the Lummi have a very strong case,” he said. “The site, the area, the landscape – they can show that it’s a very important cultural area and permitting the terminal to go in will have a devastating effect on the cultural value of that landscape.”

The Army Corps of Engineers is now working on finalizing what’s called a “memorandum of agreement” between Pacific International Terminals and the Washington State Department of Archaeology and Historic Preservation. The Army Corps says the document, which was obtained by EarthFix under the Freedom of Information Act, will serve as a retroactive permit “resolving adverse effects associated with the damage caused to 45WH1 associated with non-permitted geotechnical work at Cherry Point.”

The Lummi Nation refused to sign the memorandum or accept the $94,500 that was offered to the tribe as mitigation for the damage through the memorandum.

The archaeological review will follow a separate but parallel track to the environmental review of the project. The first step in the process is to determine the Area of Potential Effect (APE), and that’s already causing a dispute among state and federal agencies.

The State Historical Preservation Office, along with the Lummi and the Federal Advisory Council For Historic Preservation, have written formal letters disagreeing with the Army Corps’ plans to limit the APE to the area immediately surrounding the terminal itself.