economic development

On Tribal Courts and the Navajo Bond Offering

Matthew L.M. Fletcher

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.

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Sen. Akaka and Rep. Cole on Carcieri Fix: “Create Jobs, Cost Taxpayers Nothing”

Matthew L.M. Fletcher

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):

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Navajo Nation to Offer Bonds

Adrea Korthase1 Comment

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

Matthew L.M. Fletcher1 Comment

Here:

NLRB Motion to Dismiss

The complaint and related materials are here.

Saginaw Chippewa Indian Tribe Sues NLRB

Matthew L.M. Fletcher2 Comments

Here are the materials in Saginaw Chippewa Indian Tribe v. National Labor Relations Board (E.D. Mich.):

SCIT Complaint

SCIT Motion for Preliminary Injunction

TT’s own Andrew Adams is co-counsel on this one.

NYTs Article on Inupiat Village “Torn” by Oil Drilling Proposal

Matthew L.M. Fletcher

Here.

More Bad Press on Tribal Payday Lending Companies

Matthew L.M. Fletcher1 Comment

Here, via Indianz.

Two points on payday lenders that should be apparent by now:

1. Read the Nebraska Supreme Court decision in StoreVisions v. Omaha Tribe, where the court held that tribal immunity was waived where the tribal chair and vice chair signed a waiver document (without constitutional authority to waive immunity) in the presence of other council members, and which the court held the presence of the other council members was sufficient to waive tribal immunity. Courts will find a way to find a waiver.

2. Read David Fredericks’ rendition (pp.217-18) of the oral argument before the U.S. Supreme Court in C&L Enters. v. Citizen Potawatomi, where the Court directly asked the CPN attorney about the way tribes view immunity, and the deeply off-put reaction from the Court by the answer. In fact, here is that exchange (well worth the read):

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Osage Nation v. Wind Capital Group Complaint

Matthew L.M. Fletcher5 Comments

Here:

Complaint

A suit to stop construction and operation of wind turbines on top of the Osage mineral estate.

Omaha Tribe v. StoreVisions Cert Petition

Matthew L.M. Fletcher1 Comment

Filed yesterday, I’m told:

Omaha Tribe Cert Petition

Question presented:

Is apparent authority sufficient to bind an Indian tribe to a waiver of the tribe’s federally protected sovereign immunity, when the purported waiver is executed by a tribal official acting outside the scope of his actual authority?

Lower court materials are here.

Federal Court Decides U.S. v. Washington Shellfish Implementation Plan Dispute Between Squaxin and Private Geoduck Farmers

Matthew L.M. Fletcher

Here is that opinion:

DCT Order