In Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, the Supreme Court of Canada recently (Nov. 10) dealt a serious blow to any tribes wanting to engage in commercial fisheries within their traditional territories. The unanimous, 7 judge court (McLachlin, Binnie, LeBel, Deschamps, Abella, Charron, and Rothstein) rejected a claim to possession (under s. 35) of an aboriginal right to fish commercially all species in their traditional territories. Before contact with the newcomers, the Lax Kw’alaams Indian Band fished off their ancestral coast for thousands of years, regularly traded fish grease extracted from the eulachon, as well engaged in occassional trade in other fish and fish products. As such, the Lax Kw’alaams sought a declaration as to their aboriginal rights to engage in commercial fishing. The trial judge and later, the British Columbia Court of Appeal, rejected their claim. The Supreme Court followed suit – and Justice Binnie (shouldn’t he be gone by now?), writing for the court, agreed with the lower courts.
economic development
Cook Inlet Regional Corp. Tax Suit against Chickaloon Native Village
Here:
Judge Lamberth Enjoins PACT Act in Gordon v. Holder
Here is the BLT coverage. And the materials:
Convenience Stores Amicus Brief
Public Citizen Litigation Group Amicus
Gordon Reply [includes significant attachments]
Omaha Tribe v. StoreVisions Cert Opposition Brief
California Appellate Court Decides Tribal Immunity Case: Yavapai-Apache Nation v. Iipay Nation
Here is the opinion.
An excerpt:
Based on the parties’ course of dealing throughout the loan agreement transactions, in which Nation expressly and irrevocably waived tribal sovereign immunity and allowed court resolution of disputes in those courts having subject matter jurisdiction of any loan agreement problems, we conclude the trial court erred in granting the motion to quash. In any reading of the complaint, together with its exhibits and other submitted documents, Nation cannot properly invoke sovereign immunity to avoid the fourth amendment terms that allow California jurisdiction to be exercised. Nation already irrevocably waived such immunity in the earlier versions of the loan agreement, which the fourth amendment expressly ratified and affirmed, and Nation did not retract its actions. Regardless of any related loan guaranty litigation elsewhere, this record discloses that the amended loan agreement terms permit this action to proceed in California, and we reverse the order that quashed service of summons.
On Tribal Courts and the Navajo Bond Offering
Here is news analysis of the Navajo bond offering (AK previously posted about this last week). An excerpt:
S&P’s Jacob says the Navajo offering is unusual because tribes traditionally have borrowed directly from banks or sold bonds backed by gaming revenue. There are $5.3 billion of Native American bonds outstanding, according to a Bloomberg analysis.
The Navajo bonds will be sold to institutional investors in a private placement as soon as year-end and will include both taxable and tax-exempt debt, says Goe, the bond counsel.
The Navajos intend to seek investors willing to settle disputes in tribal courts, a first for a bond issue, Goe says. Clarkson says the requirement “would be a reaffirmation of the legitimacy of tribal courts – this time from the financial market.”
Yet it may also make the issue harder to sell. Lyle Fitterer, who helps oversee $26 billion of municipal bonds at Wells Capital Management in Menomonee Falls, Wis., says the tribal-court stipulation “is one more hurdle in terms of investing in a deal like this” and could lead to the Navajos paying higher rates.
Mike Lettig, executive vice president for Native American financial services and agriculture at Cleveland’s KeyBank, hopes the Navajo issue will be “a start for tribal governments to enter the public finance markets routinely.”
KeyBank’s KeyBanc Capital Markets unit will handle the placement.
Would love to be a fly on the wall in those discussions about tribal courts. Lenders routinely demand a higher rate from tribes in these deals when the deal involves tribal court jurisdiction. Why? Especially at Navajo, where tribal law is published online, the Navajo Reporter, and in West’s Navajo Nation Code (also online). I am sure the lenders’ discussions about tribal courts will be double-coded; that is, they’ll do everything they can not to offensive, while perhaps being insulting all along.
Sen. Akaka and Rep. Cole on Carcieri Fix: “Create Jobs, Cost Taxpayers Nothing”
Here. An excerpt:
In the Carcieri v. Salazar decision, the Supreme Court reversed 75 years of policy and practice. The Indian Reorganization Act (IRA) of 1934 authorized the secretary of the Interior to take lands into trust for federally recognized tribes. The court threw all tribes into a tailspin of uncertainty by ruling that the secretary did not have the authority to take land into trust for tribes that were not considered “under federal jurisdiction” when the IRA was enacted. The court did not define “under federal jurisdiction,” and in 1934 there wasn’t an official list of federally recognized tribes. The decision creates two classes of tribes: those that can have land in trust and those that cannot. Such a system promises to be both chaotic and unfair.
So much land has been taken from tribes and tribal members — it is unconscionable to make it harder for tribes to gain back their traditional lands. Congress enacted the IRA to protect tribal homelands and to restore land that was previously seized from the native peoples. It is the responsibility of Congress to act when its intentions are misconstrued by the courts, and so we must act now.
And here (hope it is readable):
Navajo Nation to Offer Bonds
Bloomberg Businessweek article here. An excerpt
The largest American Indian tribe, the Navajo Nation, plans to issue its first bonds in a $120 million offering that would be the biggest sale of nongaming tribal debt in at least a decade. The tribe intends to use the money to create thousands of jobs and stimulate the economy on its reservation in America’s Southwest. Despite the Navajo Nation’s energy revenue, more than 37 percent of the reservation’s 170,000 residents lived below the federal poverty level in 2009. “I am concerned with the time when we won’t have revenues from our natural resources,” said Katherine Benally, head of the Navajo Nation Council’s resources and development committee, while taking a break from a council budget session in Window Rock, Ariz. “We need to be ready for that.”
and
The Navajo bonds will be sold to institutional investors in a private placement as soon as yearend and will likely include both taxable and tax-exempt debt, says Goe, the bond counsel. The Navajos intend to seek investors willing to settle disputes in tribal courts, a first for a bond issue, Goe says. Clarkson says the requirement “would be a reaffirmation of the legitimacy of tribal courts—this time from the financial market.” Yet it may also make the issue harder to sell. Lyle Fitterer, who helps oversee $26 billion of municipal bonds at Wells Capital Management in Menomonee Falls, Wis., says the tribal-court stipulation “is one more hurdle in terms of investing in a deal like this” and could lead to the Navajos paying higher rates.
NLRB Motion to Dismiss Saginaw Chippewa Indian Tribe Complaint
Saginaw Chippewa Indian Tribe Sues NLRB
Here are the materials in Saginaw Chippewa Indian Tribe v. National Labor Relations Board (E.D. Mich.):
SCIT Motion for Preliminary Injunction
TT’s own Andrew Adams is co-counsel on this one.
Turtle Talk 
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