economic development

Havasupai prevails in WIPO Arbitration regarding the Havasupaitribe.com website.

Matthew Campbell

The arbitration decision can be found here.  The Respondent has filed a complaint in federal court to stay the arbitration decision, which we will try to obtain.  A snippet of the arbitration decision:

The Complainant is an Indian Tribe (termed a “Native Sovereign Nation” in more recent governmental documents) that is recognized by the Federal Government of the United States of America. The Complainant occupies a tribal reservation in and around the Grand Canyon of the Colorado River in the State of Arizona. It is undisputed that the Complainant is a legal entity that is competent, among other things, to engage in commerce and to own and use trademarks in commerce.

Since the 1950s, tourism has been the Complainant’s principal economic activity, commercialized through tribally owned enterprises. Despite the fact that there are no roads leading to the portion of the tribal reservation where world-famous waterfalls are located, some 20,000 tourists arrive annually on foot or on horseback, or by helicopter. The Complainant’s “Havasupai Tourism Enterprise” provides tourism services such as food, lodging, and guided horseback excursions and operates the “Havasupai Lodge”, the “Havasupai Tribal Café”, the “Havasupai Trading Post”, and campgrounds. The Complainant’s official website is found at “www.havasupai-nsn.gov”. . . .

The Respondent has since used the Domain Name for commercial gain, for paid advertising relating to Grand Canyon tours and lodging and other services, some of which compete with those offered by the Complainant. The Respondent has fostered a likelihood of confusion with the Complainant’s marks, by using the same Domain Name incorporating those marks that was formerly used by the Complainant itself, misleadingly displaying the Complainant’s name on the associated website and the Complainant’s contact information on the “Contact” page of that website, and providing no identification of the Respondent or disclaimer of affiliation with the Complainant. The Panel concludes that these facts fit the paradigm of bad faith described in the Policy, paragraph 4(b)(iv), as an attempt to mislead Internet users for commercial gain.

Federal Court Finds Unkechauge Reservation Smoke Shops Liable for Violations of Federal Law in City of New York v. Golden Feather Smoke Shop

Matthew L.M. Fletcher4 Comments

Here are the materials:

DCT Memorandum & Order

NYC Motion

Remaining Defendants’ Cross-Motion

An excerpt:

For the reasons below, the Court grants the City summary judgment as to defendants’ liability under the CCTA and the CMSA. With respect to relief, the Court (1) grants the requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use”; (2) awards damages as against the Peace Pipe and TDM defendants; (3) awards civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (4) awards the City attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Vera Scanlon by report and recommendation.

And the bad news (liability):

For the reasons stated, the Court concludes the following: As to defendant Phillips, the City is directed to clarify whether it is still seeking monetary relief against him, and if so, to submit further damages briefing that identifies the amounts the City is seeking against Phillips only. As to the Peace Pipe, TDM, and Red Dot defendants, the Court finds that the City is entitled to summary judgment on (1) defendants’ liability under the CCTA and the CMSA, and (2) its requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use.” In addition, the Court awards to the City (1) damages in the amount of $10,041,075 as against the Peace Pipe defendants and $450,000 as against the TDM defendants; (2) civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (3) attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Scanlon by report and recommendation.

Prior posts here and here.

 

Federal Court Rules Against King Mountain Tobacco in Dispute with Washington State

Matthew L.M. Fletcher1 Comment

Here are the materials in King Mt. Tobacco Co. v. McKenna (E.D. Wash.):

DCT Order

Washington AG Motion for Summary J

King Mountain Opposition

Washington AG Reply

King Mountain Tobacco Motion for Summary J

Washington AG Opposition

King Mountain Reply

An excerpt:

Based on the finding above that the finished cigarettes and roll-your-own tobacco [24] are not directly derived from trust land, King Mountain can prove no set of facts in support of the claim that Washington’s escrow statutes are in conflict with the Treaty or federal law which would entitle Plaintiffs to relief. Escrow is required for all non-exempt sales subject to the State’s cigarette taxes, regardless whether those sales occur on or off the reservation. Escrow isnotrequired for tax exempt King Mountain sales of cigarettes purchased directly by enrolled members of federally recognized Indian tribes from an Indian tribal jurisdiction of the member’s tribe for the member’s own use. If there were any past sales that were exempt from state excise tax, but for which King Mountain has deposited money into escrow anyway, King Mountain has failed to offer evidence in support of a refund claim and the court expresses no opinion concerning the same. Accordingly, King Mountain, a NPM, is required to comply with the escrow statute for all past and future sales deemed “units sold.”

New Article in ABA Trade Journal Article on Tribal Payday Lending

Matthew L.M. Fletcher

The ABA Business Law Section’s journal, Business Law Today, has published “The Future of Tribal Lending Under the Consumer Financial Protection Bureau.”

An excerpt:

Some Indian tribes – particularly impecunious tribes located remotely from population centers, without sufficient traffic to engage profitably in casino gambling – have found much-needed revenue from consumer lending over the Internet.

In a typical model, the tribe forms a tribal lending entity (TLE) that is financed by a third party. The TLE then makes loans over the Internet to consumers nationwide, usually on terms that are unlawful under the internal laws of the states where the borrowers reside. Because the TLE is deemed an “arm” of the tribe, the TLE benefits from the tribe’s sovereign immunity. As a result, the TLE may be sued only under very limited circumstances; and, perhaps even more importantly, the TLE is exempt from most state-court discovery intended to unearth the economic relationship between the TLE and its non-tribal financier.

Because this model has, at least to date, provided a relatively bulletproof means to circumvent disparate state consumer-protection laws, the model has attracted Internet-based payday and, to a lesser extent, installment lenders. Although data are spotty, it is likely the fastest-growing model for unsecured online lending. Tribal sovereign immunity renders this model the preferred legal structure for online lenders desirous of employing uniform product pricing and terms nationwide, including for loans to borrowers who reside in states that prohibit such lending entirely.

The tribal model is increasingly being adopted by online lenders who had formerly employed other models. Yet the legal risks of the model to those who would “partner” with TLEs are rarely emphasized.

NPR on Brazil’s Surui Tribe

Adrea Korthase

Here. An excerpt:

Chief Almir Surui, 38, has built alliances with American technology companies, environmental groups and lawmakers in the capital, Brasilia, and in cities far beyond Brazil. And the Surui reserve, called Seventh of September for the date in 1969 when the outside world made its first sustained contact with the tribe, has become a hotbed of technology designed to protect the jungle.

The Indians use smartphones to monitor illegal logging and Google Earth Outreach to show the world what their reserve is like.

“Our model calls for saving the forest and fighting for sustainable development,” says Chief Almir, as he stands in the middle of the forest surrounded by chirping birds and many species of trees. “It’s a challenge because it’s very important to do all this. But other countries do not always pursue responsible policies.”

‘Sa’ Nyu Wa — Tribally Chartered Hualapai EDC — Files for Bankruptcy in Arizona

Matthew L.M. Fletcher

Here are the materials:

‘Sa’ Nyu Wa Bankruptcy Petition

List of Equity Secured Holders

List of Top 20 Unsecured Holders

SNW CEO Declaration

Letter Tratos Overton

Draft State Dept. EIS re: Keystone XL Pipeline

Matthew L.M. Fletcher

Here.

News coverage here.

Federal Court Rejects Quechan Tribe Effort to Shut Down Ocotillo Express Wind Power Operation

Matthew L.M. Fletcher4 Comments

Here are the materials in Quechan Tribe of the Fort Yuma Indian Reservation v. United States Department of the Interior (S.D. Cal.):

DCT Order Granting Ocotillo Motion

Federal Motion for Summary J

Ocotillo Express Motion for Summary J

Quechan Motion for Summary J

*** Quechan Declaration

News Profile of USFWS Decisionmaking Process in Question of Bald Eagles and Wind Turbines

Matthew L.M. Fletcher

Here.

An excerpt:

The U.S. Fish and Wildlife Service (FWS) is considering eliminating most public oversight of wind turbine impacts on protected bald and golden eagles by offering developers 30-year permits to kill eagles by accident, as opposed to the current 5-year permits. What’s more, they’re shaping the implementation of that proposed policy change in a series of private “stakeholders'” meetings to which the public is not invited.

American Bird Conservancy letter here.

Moapa Drops Tribal Court Suit against Wells Fargo; Agrees to Mediation (Updated 2/25/13)

Matthew L.M. Fletcher

Here is the tribe’s press release:

MOAPA DISMISSES TRIBAL COURT ACTION
Moapa, NV –The Moapa Band of Paiute Indians today announced that it and Wells Fargo Financial Advisors LLC had agreed to submit to mediation certain issues between the parties, and that the Band had caused dismissal of an action against Wells Fargo Financial Advisors commenced in the Tribe’s tribal court.
Tribal Chairman William Anderson commented that “The Tribe will always defend its inherent sovereign rights. However, the Tribe also observes its valid agreements, including valid waivers of its sovereign immunity. Further, the Band strives to be commercially responsible in its contractual relationships. We believe that the Band’s voluntary submission of the issues to mediation and dismissal of the tribal court action reflect these principles. We hope that through good faith mediation the parties will mutually resolve the issues.”
About the Moapa Band of Paiutes
The Moapa Band of Paiute Indians is located on its 72,000 acre Moapa River Reservation in Nevada. The Tribe’s reservation is the proposed site of a solar 350 megawatts energy project generating (sufficient to power 100,000 homes) being developed by K Road Power.

We posted on this case here.

Update — docs here:

Moapa 2-22-13 Press Release

Moapa Tribal Court Dismissal