Douglas Sanderson on Commercial Law and Indigenous Sovereignty

Douglas Sanderson has posted “Commercial Law and Indigenous Sovereignty” on SSRN.

Here is the abstract:

Despite the ubiquitous nature of commercial law, discussions about Indigenous sovereignty tend to focus on the big picture themes of lands, resources and economic development without any real thought about the commercial law framework within which these transactions will take place. In this paper, I argue that commercial law is a crucial, though overlooked, aspect of Indigenous sovereignty. I propose that through the development and implementation of a commercial Code and Tribunal, Indigenous communities stand to capture greater economic efficiencies, promote political independence, and advance down a path towards developing institutions that are both modern and based in traditional knowledge bases and dispute resolution mechanisms.

Second Circuit Affirms Preliminary Injunction against Enforcement of PACT Act against Red Earth LLC

Here is today’s opinion in Red Earth LLC v. United States: 10-3165_opn

An excerpt:

Appeal from an order of the Western District of New York (Richard J. Arcara, Judge) granting a preliminary injunction to stay enforcement of provisions of the Prevent All Cigarette Trafficking Act (“PACT Act”) that require mail-order cigarette sellers to pay state excise taxes.  The government argues that the district court erred in concluding that plaintiffs were likely to succeed on their claim that the PACT Act’s provision requiring out-of-state tobacco sellers to pay state excise taxes regardless of their contact with that state violates due process.  We affirm the district court’s order granting the preliminary injunction.

Briefs are here and here and here.

Federal Court Declines to Dismiss Indictment against Ponca-Licensed Pharmacy

Here is the opinion in United States v. Williams (W.D. Okla.):

DCT Order Denying Williams Motion to Dismiss

Here is the indictment:

Williams et al Indictment

Federal Court Rejects Contractor’s Demand for Arbitration, Citing Stillaguamish Immunity

Here are the materials in Stillaguamish Tribe of Indians v. Pilchuck Group II L.L.C. (W.D. Wash.):

DCT Order Granting Stillaguamish Tribe Motion

Stillaguamish Motion for Summary J

Pilchuck Group Motion for Summary J

Stillaguamish Complaint

Stillaguamish Motion for PI

 

New Mexico Bankruptcy Court Holds Bankruptcy Code Waives Tribal Immunity

Here are some of the materials in In re Platinum Properties, Inc. (Bankr. N.M.):

Bkrcy CT Order re Platinum Oil

Jicarilla Motion for Summary J

Jicarilla Reply

Jicarilla Supp Brief

DOI Advisory Brief

Other materials are here.

Seneca Telephone v. Miami Tribe Cert Petition

Here (updated 8/24/11 with better pdf):

Seneca Telephone Cert Petition

Questions Presented:

1. Under federal preemption principles invoked in Rice v. Rehner, 463 U.S. 713 (1983), and specifically, the principles determinative on the applicability of the doctrine of tribal sovereign immunity in a regulatory context, did the Oklahoma Supreme Court err and issue a conflicting ruling with this Court’s decision in Rice when it failed to apply the preemption principles to the present cases?
2. Under the preemption principles invoked in Rice, as applied to the present cases, does the Communications Act of 1934 (47 U.S.C. §§ 151et. seq.) delegate to the States the authority to exercise jurisdiction over tribal entities when Congress confers to the States the power to exercise jurisdiction over all intrastate communications?
Lower court materials are here.

Ninth Circuit Holds in Favor of Blue Lake Rancheria in FUTA Case

Here is the opinion in Blue Lake Rancheria v. United States.

And the briefs:

Blue Lake Opening Brief

US Answer Brief

Blue Lake Reply

And a link to the lower court decision, now reversed.

Tenth Circuit Rules against Ute Mountain Ute Tribe in State Tax Preemption Case

Here are the materials in Ute Mountain Ute Tribe v. Rodriguez:

CA10 Opinion

CA10 Dissenting Opinion [the only opinion now available on the Tenth Circuit webpage]

New Mexico Opening Brief

Ute Mountain Response Brief

Ute Mountain Ute Response Brief + Appendices

Amicus Brief Supporting Ute Mountain Ute Tribe

New Mexico Reply Brief

Grand Canyon Skywalk Developer Motion for Reconsideration Denied; Case to Proceed in Tribal Court

Here are the materials:

GCSD’s motion for reconsideration

 

Hualapai Response to Motion for Reconsideration

GCSD Reply in Support of Motion for Reconsideration

DCT Order Denying GCSD Motion for Reconsideration

Chicago Public Radio: “Who Owns the Fish? How Tribal Rights Could Save the Great Lakes”

Here. The transcript:

In Leelanau County in Northern Michigan, a small Native American tribe has struggled for generations to survive economic and social hardships. The tribe has always been deeply connected to the lakes economically and culturally. The latest threat to that connection is environmental degradation, particularly invasive species. But the tribes are forming unexpected alliances with old enemies to fight the threat.

When you first arrive in the Leelanau Peninsula, you think: This is heaven in the Midwest. Lake Michigan stretches out everywhere you look, blue as the Caribbean. It is a place full of second homes and tourists. But there is one spot that is different from the rest.

Arthur Duhamel Marina sound fade up

Peshawbestown is the reservation for the Grand Traverse Band of Ottawa and Chippewa Indians, a group that has lived in this area longer than anyone. It doesn’t have any t-shirt shops or beach-front mansions. Instead, there are government offices, a casino, and a tribal marina. Ed John is a tribal fisherman who docks his fishing boat here.

JOHN: I can weld, and other things. But I enjoy fishing ’cause I am my own boss. I am not rich, but I don’t want to be rich, it’s working for me.

Tribes have always been dependent on the lakes. We asked Ed how invasive species have been threatening the tribes’ livelihood.

JOHN: I was just telling my buddy, we got these reporters down here, asking about invasive species. We know a thing or two about invasive species. First we had the Vikings and all these other countries taking, actually invading our space.

Ed’s wife fishes, and so does her cousin, Bill.

FOWLER: My name is Bill Fowler, I am a tribal commercial fisherman.

His nickname is Bear.

FOWLER: Because I’m as big as a bear and I work like a bear.

Fade up engine

Bill fishes with Jason Sams who helps haul in the nets. Also along for the ride is  Bill’s dauschund puppy, Beauford.

SAMS: He eats the face of the fishes. Faces ain’t worth any money anyway. He’s excited ‘cause he knows there will be fish soon.

It takes about an hour to reach the first fishing net.

FOWLER: Here fishy, fishy. Come here fishies.

Lake trout flop around on the dock, bleeding from the gills.

Fish flopping

Ice keeps them fresh till they get to shore, where Bill sells his catch under the name 1836 Fishing Company, in honor of the Treaty of 1836.

FOWLER: I named it that because the treaty is important to us to reserve our rights.

You see, back in 1836 the tribes gave away a huge chunk of land – one-third of the state of Michigan. In return they kept the right to hunt and fish. But much later, in the 1960s, the state of Michigan started heavily regulating commercial fishermen, including tribes, limiting where and how they fished.

John Bailey was a tribal leader at the time and says the regulations hurt the tribes.

BAILEY: Economically it would destroy us. And it would destroy us as Indian people because it’s something that has been passed down generation to generation.

Inspired by the Civil Rights movement in the south, tribes began using non-violent civil disobedience to protest the regulations. They ignored state fishing restrictions and said to the authorities, come arrest me.

According to John Bailey, a lot of whites didn’t react well.

BAILEY: One of the groups actually took pictures of Indian fisherman and flooded the state with wanted posters: Spear an Indian, Save a Trout. We had guns pulled on usWe had women verbally and physically assaulted.

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