economic development

News Coverage of Proposal to Utilize Solar Energy as Indian Country Economic Development

Matthew L.M. Fletcher

Here is the article. And a link to the law review article here.

An excerpt:

There are many ironies in the history of relations between the United States and its indigenous peoples, but one in particular may be a telling illustration of the distribution of power.

Flip on a light switch in any of the great cities of the Southwest, such as Los Angeles, Las Vegas or Phoenix, and much of the time the energy that creates the light will be coming from one of four massive coal-burning electrical plants located on or a few miles from Navajo Nation land in Arizona and New Mexico.

The plants are critically important employers for members of the Navajo and Hopi tribes, about 40 percent of whom live below the poverty line.

The irony is that as many as 20,000 Navajo and Hopi families, surrounded on the south, east and west by power plants that deliver electricity to brightly lit cities hundreds of miles away, don’t have access to the electricity grid themselves.

Seven decades after the Tennessee Valley Authority brought electricity to the rural South, a significant population in the U.S. – estimated at 14 percent of Indian homes on U.S. reservations – has yet to experience a crucial advantage of 20th-century life.

Ryan Dreveskracht believes that solar power may be a way to change that.

 

Tenth Circuit Affirms Immunity for Tribal Corporations; Reversing Lower Court

Matthew L.M. Fletcher2 Comments

Here are the materials in Breakthrough Management Group v. Chukchansi Gold Casino and Resort:

Tenth Circuit opinion

Chukchansi Opening Brief

BMG Brief

Chukchansi Reply

BMG Reply

BMG v Chukchansi Lower Court Orders

Lower court briefs here.

 

New Mexico Court of Appeals Decision on State Worker’s Comp Jurisdiction in Indian Country

Matthew L.M. Fletcher1 Comment

Here is the opinion in Antonio v. Inn of the Mountain Gods Resort.

An excerpt:

Michael Antonio (Worker) appeals from  an order of dismissal entered by the Workers’ Compensation Administration (WCA) for lack of subject matter jurisdiction.  On appeal, Worker alleges that (1) the WCA erred in determining that Worker’s injury occurred on the Mescalero Apache Tribe reservation (Tribe) and that the Tribe was not conducting business within the State of New Mexico; and (2) the WCA had jurisdiction by default because the Tribe did not have a workers’ compensation program in effect at the time of Worker’s injury, and the compensation that was provided to Worker was not as good as the compensation required by the New Mexico Workers’ Compensation Act.  We conclude that the WCA did not have jurisdiction over the Tribe because the Tribe did not expressly waive sovereign immunity and, therefore, the WCA’s order reached the right result for the wrong reasons.  See Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 18, 146 N.M. 256,208 P.3d 901 (noting that we may affirm on grounds not relied upon if those grounds do not require us to look beyond the factual allegations that were raised and considered below).  Weaffirm.

Landless Cowlitz Tribe to Receive Reservation in Southwestern Washington

Ann Tweedy

Here’s the article from the Seattle Times: http://seattletimes.nwsource.com/html/localnews/2013768567_cowlitzcasino26m.html

Little River Band Enters into Collective Bargaining Agreement with United Steelworkers

Matthew L.M. Fletcher

Here is the ratifying resolution: 10-1220-059 Ratifying Collective Bargaining Agreement

And the press release:

(December 21st, 2010) Manistee, MI

Historic Collective Bargaining Agreement Signed under Tribal Law

The Little River Band of Ottawa Indians announced today that a collective bargaining agreement has been reached between the Little River Casino Resort and the United Steelworkers.  The agreement is the first to be reached after a union election campaign and collective bargaining process governed solely by tribal law.  Security guards voted last Thursday to approve the agreement. The Board of Directors of the Resort subsequently approved it on Monday, December 20th, and the Agreement is effective upon that approval.

“This is proud moment for our Tribe,” said Stephen Parsons, Tribal Council Speaker for the Band.  “We have worked hard to design a fair law to govern labor relations within our jurisdiction.  This agreement shows that tribal sovereignty works.”

Tribal Ogema Larry Romanelli echoed this sentiment:  “This agreement is just another progressive step for the Little River Band of Ottawa Indians as we accept responsibility for our own affairs and fairly protect the interests of all parties involved.”

The Little River Casino Resort operates pursuant to the Indian Gaming Regulatory Act, a sweeping federal law enacted by Congress to enable tribes to generate revenues to support tribal government—similar to state lotteries.  The Band’s law governs labor relations within its public sector.

 

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Opening Brief in Chehalis Tribes v. Thurston County

Matthew L.M. Fletcher2 Comments

Here: Appellants Opening Brief.

Lower court materials here.

New Scholarship on Tribal Economic Development (and Solar Power)

Matthew L.M. Fletcher1 Comment

Ryan David Dreveskract will publish his article, “Native Nation Economic Development Via the Implementation of Solar Projects: How to Make it Work,” in the Washington & Lee Law Review (article here: Dreveskracht Article). It is also accessible on SSRN here. Here is the abstract:

This Article examines the issues surrounding sustainable economic development in American Indian country via the implementation of solar energy projects. Section II addresses Native American economic development, generally, focusing on Indian gaming, practical sovereignty, capable institutions, and cultural match. Section III discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country, specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. In arguing for the implementation of solar energy projects, Section III of the Article also provides instruction for the realization of these projects by tribes and state/federal regulatory/legislative bodies. Finally, having argued for and laid out a framework for economic development via solar projects, Section IV offers concluding remarks.

Warm Springs Suit against Bond Insurer Fails

Matthew L.M. Fletcher

Here are the materials in Confederated Tribes of the Warm Springs Reservation of Oregon v. Ambac Assurance Corporation (D. Or.):

Warm Springs Second Amended Complaint

AMBAC Motion to Dismiss

DCT Order Granting Motion to Dismiss

Colorado Supreme Court Largely Affirms Tribal Immunity in Cash Advance Decision

Matthew L.M. Fletcher1 Comment

Here is the opinion. Briefs are here and here.

And here is the Court’s syllabus:

In this tribal sovereign immunity case, the Colorado Supreme Court affirms the court of appeals’ decision to remand the case to the trial court to determine whether Cash Advance and Preferred Cash Loans act as arms of the Miami Nation of Oklahoma and the Santee Sioux Nation, respectively, such that their activities are properly deemed to be those of the tribes. As an initial matter, the court holds that tribal sovereign immunity applies to judicial enforcement of state investigatory actions, including this state investigative subpoena enforcement action. Because the trial court arrived at a contrary conclusion, a remand is necessary to determine whether Cash Advance and Preferred Cash Loans are arms of their respective tribes such that their activities are properly deemed to be those of the tribes.

In determining whether Cash Advance and Preferred Cash Loans are arms of their respective tribes, the trial court shall consider the following three factors: (1) whether the tribes created the entities pursuant to tribal law; (2) whether the tribes own and operate the entities; and (3) whether the entities’ immunity protects the tribes’ sovereignty. The state bears the burden of proving, by a preponderance of the evidence, that Cash Advance and Preferred Cash Loans are not entitled to tribal sovereign immunity.

Additionally, the supreme court disagrees with the court of appeals’ determination that tribal sovereign immunity does not extend to tribal officers engaged in conduct allegedly violating state law. Instead, the appropriate determination with respect to individual tribal officers is whether they acted within the scope of their lawful authority, as defined by the tribe and limited only by federal law.The supreme court further disagrees with the court of appeals’ to the extent it would recognize a waiver of sovereign immunity that is not explicit and unequivocal. The court of appeals directed the trial court to look for a waiver of tribal sovereign immunity in a broad range of sources, including a contractual arbitration clause between Cash Advance or Preferred Cash Loans and Colorado customers. The court, however, finds it unlikely that an explicit and unequivocal waiver of tribal sovereign immunity would be found in such an arbitration clause.

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Tribes exploring trade partnerships with Turkey

Ann Tweedy

Here’s the Seattle Times article and an excerpt:

Native American businessmen are increasingly seeking global business partnerships to create jobs and new businesses in their territories. They have held talks with Chinese, Spanish and Australian companies, but their tribal leaders’ trip to Turkey was the first large-scale overseas exploration of new trade ties, they said.Lincoln McCurdy, president of the Turkish Coalition of America, which organized the trip, said Thursday that the Native American tribes belong to sovereign nations that can strike their own trade deals and offer special tax incentives.

“Native Americans are becoming global minded,” said McCurdy, adding that they already have held talks with foreign companies to do business in telecommunications and mining industry, including copper.

The delegation, representing 17 tribes from at least 10 U.S. states, has been welcomed by the Turkish government, which wants to bolster trade ties with the United States, a key ally and Turkey’s seventh largest trading partner.