economic development – Page 78

D.C Circuit Reverses Dismissal of Seneca Indian’s Challenge to PACT Act

February 19, 2011Matthew L.M. Fletcher

Here is the opinion in Gordon v. Holder.

An excerpt:

Plaintiff-Appellant Robert Gordon is a Seneca Indian and a delivery seller of tobacco products. As a delivery seller, Gordon distributes his products by mail, rather than through abrick-and-mortar retail store. See 15 U.S.C. § 375(5)–(6). Prior to the PACT Act, ninety-five percent of Gordon’s business came from the sale of tobacco by internet and phone. But since the Act’s passage, Gordon claims he has lost almost all of his business due to the remedial measures Congress enacted.

Tenth Circuit Denies En Banc Review in BMG v. Chukchansi; Expect Cert Petition Soon

February 16, 2011Matthew L.M. Fletcher

Here is that order: Order Denying Petition for En Banc Rehearing.

Here are our earlier posts: en banc materials, and Tenth Circuit panel materials.

News Coverage of Payday Lenders and Indian Tribal Enterprises

February 14, 2011Matthew L.M. Fletcher

Here are two major articles from the last few days:

WSJ Article on Payday lenders

Denver Post Article on Payday Loans

Anthony Broadman on Tribal Bankruptcy Law

February 4, 2011Matthew L.M. Fletcher

From Casino Enterprise Management:

For businesses unable to pay creditors, bankruptcy can offer rebirth or an orderly demise. In either case, the federal bankruptcy process can protect debtors from their creditors, giving “to the honest but unfortunate debtor … a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.” (Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).) In other words, filing bankruptcy can be a valuable tool in the life of a business concern. But it is one tool that has not been used widely by tribal enterprises, let alone tribal governmental gaming operations.

The federal bankruptcy code dictates how businesses die and how their creditors divide what is left. Its use, like the use of corporate codes at the inception of a business, goes to the heart of what it means to be a firm in a particular jurisdiction. So it is somewhat curious that tribal businesses are prevented, either practically or legally, from using tribal law to order their affairs in bankruptcy. At the very least, it runs counter to the right of tribes “to make their own laws and be ruled by them.” (Williams v. Lee, 358 U.S. 217, 220 (1959).)

The current economic climate has triggered speculation regarding how tribal gaming operations would navigate the bankruptcy process. Fanned by the bankruptcy of Greektown Casino Hotel (once partially owned by a tribe) and the Wells Fargo/Lac du Flambeau debacle, that speculation, coupled with cases abrogating tribal sovereign immunity in the bankruptcy context, suggests that tribes should at least attempt to control their exposure to insolvency by (1) legislating tribal approaches to bankruptcy and (2) contracting with potential future creditors and potentially tribal debtors regarding a common treatment for bankruptcy in Indian country. If federal bankruptcy laws do not work for tribe-owned businesses, tribal bankruptcy laws should.

It is likely that, if implemented, both approaches would be challenged. A tribal bankruptcy code would be attacked as infringing on the exclusive jurisdiction of the federal bankruptcy courts. Agreements with potential future debtors and creditors would be attacked based on tribal court jurisdiction over such entities. Both challenges may be surmountable—and worth the trouble. Non-Indian creditors might even eventually find tribal bankruptcy to be quicker, more efficient and more predictable than attempts to fit tribal businesses into the typical bankruptcy process.

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Minn. Supreme Court Affirms Limited Worker’s Comp. Jurisdiction over Indian Country

February 3, 2011Matthew L.M. Fletcher2 Comments

A divided Minnesota Supreme Court (4-3, at least on the jurisdiction question) held in Swenson v. Nickaboine that the state worker’s comp statute applies to an on-reservation, Indian-owned business where the worker in question was a non-Indian.

Here is an excerpt from the dissent:

The majority holds that Minnesota had subject matter jurisdiction based on 40 U.S.C. § 3172. But we held in Tibbetts v. Leech Lake Reservation Business Committee, 397 N.W.2d 883, 888 (Minn. 1986), that in section 3172, Congress did not subject the tribe to jurisdiction in Minnesota courts. The majority distinguishes Tibbetts because that case involved a workers‟ compensation claim brought by a tribal member against a tribe; whereas this case involves an injured worker who is not a tribal member and an employer that is owned by a tribal member but is not a tribal corporation. But holding that Congress did not waive the sovereign immunity of the tribe in section 3172, as we did in Tibbetts, does not provide a basis for the majority‟s conclusion that Congress, in section 3172, vested subject matter jurisdiction in the state to enforce its workers‟ compensation laws. In my view, our discussion in Tibbetts supports the opposite result on the jurisdictional question.