New Scholarship Recommending Curbs on Tribal Payday Lenders

Heather L. Pretrovich, a North Carolina law student, has published Circumventing State Consumer Protection Laws: Tribal Immunity and Internet Payday Lending in the North Carolina Law Review.

Here is the abstract:

As tribal payday lending becomes more prevalent, there is a dire need for federal action to halt the trend’s momentum. In 2010, tribal payday lenders made up “[m]ore than 35 of the 300” Internet payday lenders and made “about $420 million in payday loans.” The need for regulation of this conduct is imminent—“[s]ome observers predict that the number of tribes with payday-loan operations eventually could climb close to the 400 that now have casinos.” Additionally, various lenders have shown an interest in copying the tribal lending business model, which will likely result in additional industry growth. In the absence of federal regulation, the number of companies targeting consumers will increase, rendering previous state regulation efforts futile.

This Comment argues that federal action is necessary to block attempts by payday lenders to bypass consumer protection laws by organizing as tribal entities. Because the federal government does not currently regulate payday lending and tribes are immune from state suit, states are unable to protect their consumers from the practices that they have previously fought to curtail. Due to these obstacles, this Comment proposes possible solutions that can prevent tribal payday lending companies from circumventing state consumer protection laws. Part I provides background information introducing the specific problems that states have encountered in their initial regulation efforts against these companies. Part II describes why tribal payday lending cases are so rare and analyzes this body of case law. Part III analyzes why state regulation is inadequate and the reasoning behind the need for a federal response to this practice. Finally, Part IV examines what courses of action may be taken and which of those proposals are most likely to quickly and effectively address the problem.

Federal Court Orders Exhaustion of Tribal Remedies in Pojoaque Tribal Gaming Contract Dispute

Here are the materials in Fine Consulting, Inc. v. Rivera (D. N.M.):

DCT Order Granting Rivera Motion

Fine Consulting Complaint

Rivera Motion to Dismiss

Fine Consulting Opposition

Rivera Reply

If anyone doubts the impact of good Indian law scholarship, then look here. Sarah Krakoff’s excellent Colorado Law Review article Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide for Judges is all over this opinion.

Federal Court Denies Navajo Rule 19 Motion in Diné CARE v. US Office of Surface Mining Reclamation

Here is the order:

DCT Order Denying Navajo Motion to Dismiss

Briefs are here.

GAO: $3.5 Billion in Minerals Derives from Indian Lands

ICT report here.

GAO report here.

Contour Spa at the Hard Rock v. Seminole Tribe Cert Stage Briefing Complete

Here:

Contour Spa Cert Petition

Seminole Cert Opp

Contour Spa Cert Stage Reply

No Conference date has been set for this petition.

Seventh Circuit Briefs in Challenge to Martin Webb Payday Lending Company’s Forum Selection Clause

Here are the briefs in Jackson v. Payday Financial LLC:

Jackson Opening Brief

PayDay Financial Answer Brief

Jackson Reply Brief

Lower court materials here.

 

Ryan Dreveskracht Article on Tribal Energy Development

Ryan Dreveskrachthas published “Alternative Energy in American Indian Country: Catering to Both Sides of the Coin” in the Energy Law Journal. Here is the synopsis:

This article looks at both sides of the renewable energy “coin” in relation to American Indian country. On the one side, it appears that tribal governments are opposed to any energy development on their lands. All told, however, this couldn’t be further from the truth – tribes merely seek a seat at the table when decisions are made regarding developments that will adversely affect their lands and/or areas of cultural significance. Indeed, contrary to being opposed to alternative energy development, tribes are very actively seeking to develop their lands in a manner that is consistent with their cultures and traditions. But, large-scale alternative energy projects are virtually absent from Indian country. This article argues that the oft-overlooked other side of the renewable energy “coin” are the federal regulations that hinder these projects from coming to fruition. The final section of the article will discuss what Congress is – and is not – doing regarding the two sides of this “coin.”

Update in Grand Canyon Skywalk Controversy — Arbitration Award Suit Transferred from Judge Martone to Judge Campbell

Here are the new materials:

GCSD Application to Enforce Arbitration Award

Sa Nyu Wa Rule 42.1 Motion

GCSD Response

Sa Nyu Wa Reply

DCT Order Granting Rule 42.1 Motion

D.C. Circuit Briefs in “Old Section 81” Appeal

Here are the briefs in Quantum Entertainment Inc. v. Dept. of Interior:

Quantum Opening Brief

Interior Answering Brief

Quantum Reply Brief

Lower court materials here.

New Scholarship on Tribal Bonds

Bill Maurer and Justice Richland have posted their paper, “Lex Llewellyn and the Tribal Tax Status Act: ‘Fallible Gropings’ in Law and Society,” on SSRN.

Here is the abstract:

This article is the result of our inquiry into two proximate fields in which issues of law, custom and markets arise in sociolegal scholarship and praxis: the mid-20th century jurisprudence of the legal realist Karl Llewellyn and the contemporary debates surrounding efforts by tribal governments in the U.S. to issue tax-exempt bonds. Both are sites for efforts by legal scholars and practitioners to grapple with the convergence of social categories that, until very recently, are normally held apart – Native Americans, law, and commerce. We first explore Llewellyn’s efforts at drafting the Uniform Commercial Code, and the extent to which in this and his The Cheyenne Way (written at virtually the same time), he drew considerable influence from the American pragmatist philosophical tradition. In so doing, we find that his jurisprudence and lawmaking (often maligned for its circular reasoning) can be better understood as an effort to announce a philosophy of law and enact commercial legislation that was more a method for doing legal analysis and taking legal action than it was an expression of legal principles. Once understood in this way, we suggest it offers a fresh way of accounting for the performative force of law that can move sociolegal research beyond certain constructivist impasses. We then offer how such an approach can be brought to bear on the unfolding relationships among custom, law and commerce in the back and forth between scholars, law-makers, and tribal leaders around tribal tax-exempt bonds and their regulation.