Student Note Addresses Native Access to Capital Markets

The Review of Banking & Financial Law has published “Financing Native Nations: Access to Capital Markets” by Jenny Small.

Opening Second Circuit Brief in Otoe-Missouria v. NY Dept. of Financial Regulation

Here:

Otoe-Missouria Opening Brief

Lower court materials here.

Title VII Claim against Cherokee Nation-Owned Company Proceeds

Here are the materials so far in Nepomuceno v. Cherokee Medical Services (S.D. Cal.):

4 CMS Motion to Dismiss

10 Nepomuceno Opposition

11 CMS Reply

16 DCT Order Denying Motion

An excerpt:

CMS has not come forward with any evidence of how CMS was formed, who owns CMS, how CMS is managed, and where profits from the business go. Therefore, CMS has not established that it is an arm of the Cherokee Nation entitled to tribal sovereign immunity from suit, and the Court denies CMS’s motion to dismiss for lack of subject matter jurisdiction. CMS may reassert tribal sovereign immunity in a motion for summary judgment. However, any such motion should not be filed until Plaintiff has had the opportunity to conduct adequate discovery on the issue.

Lower Brule Community Tribal Business Entity Not Immune from Suit; Some Claims Dismissed on Merits

Here is an update in Seaport Loan Products LLC v. Lower Brule Community (N.Y. Supreme Ct.):

63 Lower Brule Motion to Dismiss

77 Adlwych Capital Partners Opposition

78 Seaport Loan Opposition

82 Lower Brule Reply

86 Transcript

89 Decision on Motion for Protective Order

92 Opinion

Prior and parallel proceedings posted here, here, and here.

NY Appellate Division Affirms NY State Police Authority to Confiscate HCI Smokes

Here is the opinion in HCI Distribution Inc. v. New York State Police Troop B Commander (N.Y. A.D.), reversing the lower court:

HCI v NY State Police

Lower court materials here.

Shale Gas Company (SWN) Loses Bid for Injunction to Halt N.B. Protests

Just a few hours ago, “[a] request by SWN Resources Canada to extend a court injunction that prevents anyone from impeding its exploration activities in New Brunswick has been denied by a judge.  Justice George Rideout issued a ruling Monday afternoon after hearing arguments in the Court of Queen’s Bench on Friday. Rideout did not state his reason in court, but said he would issue a written decision.”  Click here for the story from CBC news.

New Brunswick Fracking Protests: Frontline of a Democratic Fight

Click here for a great article from Martin Lukacs.  “Images of burning cars and narratives about Canadian natives breaking the law obscure the real story about the Mi’kmaq people’s opposition to shale gas exploration.”

Report on the Polar Law Conference and Arctic Circle Conference in Iceland – Long

I just returned from Iceland, where I participated in the 6th annual Polar Law Conference and the inaugural Article Circle Conference. The events drew an impressive array of speakers. It was almost a “who’s who” in Arctic affairs, bringing in heads of state, ambassadors, special envoys, lawyers, scholars, business executives, scientists, activists, students, and other interested people. Coverage of both events can be found online.

Polar Law Conference

Arctic Circle Conference

Instead of simply reviewing the events, I thought I’d mention a few of the presentations and events that were of particular interest to me and that might be interesting to some of you.

This is the second time I have attended the Polar Law Conference. I was impressed both times with how open the attendees are to discussing the implications of Arctic development on the Indigenous peoples who reside in Arctic regions. In fact, I found myself engaged in fascinating discussions with legal scholars from many locations who do not understand the U.S. domestic legal policies toward tribes (does anyone truly understand this?) as well as what appears to the international community as the United States’ hesitance to apply UNDRIP, join ILO 169 or UNCLOS, or apply international customary law norms in US courts. Even more interesting are the discussions on how Indigenous groups around the world are dealing with issues that face us all such as: access to sacred sites, protection of subsistence rights, violence against women, preservation and protection of cultural knowledge, among other things.

Here are some highlights from presentations made at both conferences:

Timo Koivurova, Director of the Northern Institute for Environmental and Minority Law, referred to the evolving indigenous law regime that is developing internationally and the need for this regime to trickle down to the domestic level to be truly effective.

Antje Neumann, Researcher at the Univ of Akureyri and PhD Candidate at the University Tilburg presented a compelling paper on the role of Indigenous knowledge in environmental protection and how assisting Indigenous groups to preserve traditional knowledge may benefit all nations when working on ways to protect and preserve the environment.

Kári á Rógvi, Member of Parliament, Faroe Islands spoke on the struggles that Faroe Islanders face as a self-governing nation under the sovereign authority of Denmark. The similarities in legal struggles between the Faroe Islands and Tribes in the US were striking, and Kári and I both agreed that we might be able to learn much from each other since the issues we face are quite similar.

Leena Heinämäki, Research Fellow, Northern Institute for Environmental and Minority Law, shared a project she is involved with on reclaiming sacred natural sites of Indigenous Peoples in the Circumpolar Arctic. Researchers from various countries are bringing together the similarities and differences that Indigenous Peoples in all Arctic countries are facing, and trying to created a unity of purpose between these groups.

Mara Kimmel, an Alaskan attorney and PhD Candidate, Central European University, gave a fascinating paper called “Land, Governance and Well-Being – An Alaskan Case Study.” Her PhD thesis will be coming out soon, and I am looking forward to reading about Alaska Native land claims, governance issues, and the link to the well-being of the people. Since my presentation had to do with human security issues for Indigenous communities in Alaska and Canada related to economic development, we found a lot of cross issues between human security and the ability to self-govern effectively.

Aqqaluk Lynge, Chair, Inuit Circumpolar Council spoke about the question of whether Indigenous people in the Arctic will thrive or just survive. He said that he is not yet convinced that the Arctic will become a place of peace. He challenged the international community to focus on honesty, integrity, transparency and accountability in its dealings with Indigenous Peoples.

Edward Itta (Inupiaq), Commissioner, U.S. Arctic Research Commission gave a powerful presentation. He wanted to know how the Inupiaq can participate more meaningful in economic opportunities. Perhaps, as he said, it is time for Indigenous peoples to ponder a challenge to the current status quo. As he also said, the Inupiaq “degree” in the Arctic world is their survival!

Gudmundur Alfredsson, Univ of Akureyri (and influential part of the creation of UNDRIP), chaired the session where Mr. Itta spoke. He pointed out the less-than-stellar human rights and Indigenous rights records that many of the Arctic states have. He said that it might be time for the world to start focusing on the North and these important issues. He also took a moment and had every Indigenous person in the audience raise their hands. While there were numerous hands raised, we were still quite a small minority. He said that maybe next year we can do better.

The conference had many memorable moments, from the moment when the director of Greenpeace confronted President Putin’s Special Envoy about the arrest of the 30 Greenpeace protestors to the Google Maps presentation showing the in-depth mapping of the ocean to the gorgeous northern lights display (thanks to Mother Nature for that). It was worth the time to attend.

It would be great to see a stronger representation of Alaska Natives getting their voices heard at these conferences along with other legal scholars from the U.S. While I understand that many in the U.S. do not find it worthwhile to spend much time on the international scene, and it is often cost prohibitive, I think we have a unique opportunity related to the Arctic. The attention of the world is turning to that region, and right now we have an opportunity to have our voices heard. Further down the line, the policies will be set and we will be stuck trying to change the practices that we disagree with. Right now we may be able to influence them from the start. It’s something to consider.

Update in Little River Off Reservation Casino Proposal

Here, from LRB:

Little River Band of Ottawa Indians Ogema Larry Romanelli made a surprise announcement at the tribe’s Fall Membership meeting shortly before 2 p.m. this afternoon. He announced that Michigan Governor Rick Snyder has agreed to let the tribes’ petition to establish a casino proceed to the Bureau of Indian Affairs (BIA) for consideration.

Romanelli brought the Muskegon Casino task force members to the stage at the Makwa Endaat Entertainment Center as details of the announcement were told to the assembled tribal members. Romanelli thanked the task force and past and present members who contributed so much to the four year long effort. The announcement was officially released on the state side by Senator Geoff Hanson in Muskegon.

Tribal Council Speaker Virg Johnson, reacting to the announcement stated that, “We are ecstatic that Governor Snyder has made this move in support of consideration of our project in Muskegon. Our tribe is excited about the potential of our proposed resort to help the people of the Muskegon area and Fruitport in particular…an area hard hit by economic challenges over recent years.”

The Muskegon region is home to a large concentration of tribal citizens who, along with all units of government in the area, actively support the casino project.

Ogema Romanelli, revealed that he and task force members have been waiting to share the information for several days in order for Senator Hanson to make the official announcement. This approval by the Governor is the first step in a multi-step process of due diligence that’s required of the Secretarial Determination Process.

The proposed casino would be on the site of the old Great Lakes Downs race park just off of the intersection of I-96 and US31.

Bruce Fein on NYs Strategy against Tribal Payday Lenders

From HuffPo, here.