economic development

ICT: Indians v. Enviros at Hopi/Navajo

Matthew L.M. Fletcher

From ICT:

KYKOTSMOVI, Ariz. – The battle waged against a major coal company by Hopi and Navajo activists and against large environmental groups by tribal officials has, at least temporarily, intensified the conflict playing out in northern Arizona over the control, preservation and use of cultural and natural resources.

“I never thought I would see the day when being ‘Hopi’ meant being anti-environment, pro-big corporate energy, and actually promoting pollution and global warming in favor of ‘the almighty dollar,’” Alph Secakuku said.

In addition to being Sipaulovi Village representative on the tribal council, he is president of Hopi Organizational Political Initiative, a grassroots group believed to be among those ousted from Hopi tribal land for being perceived allies of the Sierra Club and other large groups that have opposed Peabody Western Coal Company’s role in expanded strip mining.

On Sept. 28 the Hopi tribal council – its legitimacy challenged in political infighting – said the Sierra Club,National Resources Defense Council, National Parks Conservation Association, Grand Canyon Trust, and “on-reservation organizations sponsored by or affiliated with the groups, are no longer welcome on the reservation.” Continue reading →

CFP Deadline for AALS Indian Nations Section Papers

Matthew L.M. Fletcher

CALL FOR PAPERS

Tribal Nation Economics and Legal Infrastructure

This call for papers seeks submissions for the AALS Indian Nations and Indigenous Peoples Section’s 2010 publication of selected papers.  The Section will meet during the American Association of Law School’s Annual Conference on January 8th, 2010.  The Indian Nations and Indigenous Peoples Section Meeting will focus on “Tribal Nation Economics and Legal Infrastructure.”  The Washburn Law Journal will be publishing the papers on this topic accepted for publication.

The papers should address the themes of Tribal Nation economics and law.  Law and economics are intertwined fields.  As Tribal Nations rebuild economies in the wake of failed federal policies, legal infrastructure promoting a climate of healthy economics has become vitally important.  Subject areas for papers include topics on contemporary reservation economies, successful practices in tribal commercial law, assessing federal economic incentives for Tribes, legal code development to facilitate economic opportunities, evaluation of the tribal corporate model, creative thinking regarding tribal economic development in the era of federal Indian self-determination, review of sustainable tribal economic strategies, and related topics along these lines.

Abstracts for the papers should be sent by Friday, October 2nd, 2009 to Angelique EagleWoman at (eaglewoman@uidaho.edu).  Abstracts should be no longer than two pages.  Abstracts will be reviewed when received by the deadline and chosen authors notified in a timely manner.  Completed papers will be due by Monday, March 1st, 2010.

**Papers selected will result in publication in the Washburn Law Journal.  Authors are not required to attend the AALS Conference.  The Speakers for this year’s Symposium panel at the AALS Conference are: Professor Robert J. Miller; Professor Judith Royster; and Legislative Director/Tribal Attorney Helaman Hancock.

Klamath Off-Reservation Trust Acquisition Controversy

Matthew L.M. Fletcher1 Comment

From the Portland Oregonian via Indianz:

The Klamath Tribes have revived a controversial plan to acquire 385 acres along Interstate 5 near Wilsonville — one of the largest available tracts in the Portland area — for undisclosed commercial development.

Tribal leaders say they have no plans for a casino but could use the site for manufacturing, retail or services, while providing jobs for the 500 Klamaths who live in the Willamette Valley.

“Those Klamath peoples who live in the Willamette Valley today have just as much a right as anyone else to a sustainable livelihood and a sustainable homeland,” Chairman Joseph Kirk wrote in a letter to tribal members.

What are trust lands?
Native American trust lands are areas that the United States holds title in trust for the benefit of a federally recognized Native American tribe. The land might be located on or off a reservation. Off-reservation activities require an express federal exemption to deny state taxing power. Native American-law experts say the Klamath Tribes face a high bar in persuading the federal government to take the Wilsonville-area land into trust, considering the distance from the tribe’s reservation in southern Oregon.

The proposal, which could face years of administrative scrutiny and possible court challenges, already is drawing withering blasts from other Oregon tribes.

“This is a prime example of reservation shopping gone overboard,” said Siobhan Taylor, public affairs director for the Confederated Tribes of the Grand Ronde, headquartered about 25 miles west of Salem. “If you look at the history of the Klamaths, they have traditionally been located in Southern Oregon. It’s really a stretch for them to come up to the Wilsonville area.”

Continue reading →

Colorado v. Cash Advance Update

Matthew L.M. Fletcher1 Comment

Here are additional appellate materials in Colorado ex rel. Suthers v. Cash Advance (Colo. SCT) (opening brief here):

Tribal Amicus Brief

Colorado Appellate Brief

AARP et al Amicus Brief

States Amicus Brief

Some heavy anti-tribal/anti-payday loan amici here….

ICT’s Bankruptcy Primer

Matthew L.M. Fletcher

From ICT (thanks to Jason):

By Jack Duran, Guest Columnist

I am likely breaking some sort of gaming taboo discussing the topic of bankruptcy, however, with the current state of the economy, struggling to recover from the collapse of the financial markets, the bankruptcy filings of the Trump, Tropicana, Fontainebleau casinos, and the recent bankruptcy filing of gaming powerhouse Station Casinos, a discussion of bankruptcy law seems timely.

The gaming industry, once thought of as “recession proof,” is showing cracks in its armor, as gaming revenues have fallen in local hubs, like Las Vegas and New Jersey, and in distant places like Macau. Indian gaming has not been unscathed; gaming revenues for Indian casinos, while presently stable, have experienced a reduction over the past couple of years, causing significant belt tightening in Indian country.

Causes of Casino Bankruptcies

The causes are as abundant as bad business decisions. Typically, a bankruptcy filing occurs when business expenses and other liabilities exceed cash flow or assets, and creditors come banging at the doors to demand collateral. In the gaming industry, it’s easy to exceed available cash flow. This can occur prior to a casino’s opening if construction or development costs unexpectedly escalate.

Similarly, it may arise after opening if an expansion project suddenly goes sideways. As most casinos are heavily leveraged at the outset, for obvious reasons, a number of causes, whether it be an economic downturn or poor marketing and management, can result in lower revenues and a redlined EBITDA.

Additionally, missing a single debt payment can trigger a loan agreement’s immediate repayment clause or, in certain cases, gaming license suitability issues. Either of these can result in a parade of financial repercussions. Finally, casino operators and management groups may also over-extend themselves by purchasing competitors or expanding gaming holdings in untapped domestic or foreign markets.

Continue reading →

What’s Going on With Tribal Sovereign Immunity?

Matthew L.M. Fletcher5 Comments

Since we started this blog in fall 2007, there have been a plethora of tribal sovereign immunity federal and state court decisions. Most of them are routine — slips and falls, internal tribal disputes — but a handful of these cases are worth watching because of the subject matter and the general uniqueness of the problem.

Oklahoma gaming compacts — the Oklahoma Supreme Court has been interpreting the Class III Oklahoma gaming compacts as virtual waivers of immunity, in almost comically formalistic ways. These compacts, passed by the state’s voters, are a take-it-or-leave-it prospect for tribes. They allow for suits against the tribes in a court of “competent jurisdiction,” which the Oklahoma court has interpreted to mean state courts. Opinions here and here.

Dram Shop Actions — Again, these would not be unusual except the Oklahoma Supreme Court has found a waiver of immunity in state courts for dram shop actions. That case, Bittle v. Bahe, conflicts with the decisions of several other courts (discussion here).

Bivens Actions against tribal cops — A federal common law cause of action against tribal officers gained ground in federal district court, but didn’t get so far in the circuits (here and here).

Section 1983 claims against tribal cops — Did gain ground (here).

Payday loan operations — Currently up for review in the Colorado Supreme Court are franchises owned by two tribes doing business as payday loan operators and attempting to avoid state process and investigation (here). A related California case is here.

Tribal fee lands — A Washington court held that it continues to have in rem jurisdiction over tribally-owned fee lands (here).

Cherokee Freedmen case — the D.C. Circuit allowed the Vann lawsuit to proceed against tribal officials under the Ex parte Young theory, but more or less vacated the district court’s theory that the 13th Amendment somehow abrogated tribal sovereign immunity.

Opening Brief Filed in Cash Advance Case before Colorado Supreme Court

Matthew L.M. Fletcher1 Comment

Here is Cash Advance’s brief in Colorado ex rel. Suthers v. Cash Advance — Cash Advance Opening Brief

This case involves an effort by Cash Advance and other payday loan companies to avoid state investigation/process by licensing themselves with Indian tribes (the Miami Tribe and Santee Sioux Nation), and asserting tribal sovereign immunity. Our previous posting with links to related materials is here.

Tribal Business and Biofuel

Matthew L.M. Fletcher

From the NYTs:

IGNACIO, Colo. — An unusual experiment featuring equal parts science, environmental optimism and Native American capitalist ambition is unfolding here on the Southern Ute Indian Reservation in southwest Colorado.

With the twin goals of making fuel from algae and reducing emissions of heat-trapping gases, a start-up company co-founded by a Colorado State University professor recently introduced a strain of algae that loves carbon dioxide into a water tank next to a natural gas processing plant. The water is already green-tinged with life.

The Southern Utes, one of the nation’s wealthiest American Indian communities thanks to its energy and real-estate investments, is a major investor in the professor’s company. It hopes to gain a toehold in what tribal leaders believe could be the next billion-dollar energy boom.

But from the tribe’s perspective, the business model here is about more than business. “It’s a marriage of an older way of thinking into a modern time,” said the tribe’s chairman, Matthew J. Box, referring to the interplay of environmental consciousness and investment opportunity around algae.

Continue reading →

GTB Plans for Winery

Matthew L.M. Fletcher

From Indianz:

The Grand Traverse Band of Ottawa and Chippewa Indians of Michigan might get into the wine business.

The tribe conducted a $104,000 feasibility study to determine whether to start a vineyard and winery. “We’re looking at different economic ventures in the area,” Chairman Derek Bailey told Crain’s Detroit. “I think that we need to, especially during these economic times, to explore new ventures.”

The winery would be located near the Grand Traverse Resort and the Turtle Creek Casino & Hotel.

Get the Story:

Grand Traverse tribe considers winery (Crain’s Detroit Business 8/12)

Ninth Circuit Affirms Dismissal of Contract Breach Claim against Pyramid Lake Paiute

Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in High Desert Recreation v. Pyramid Lake Pauite Tribe of Indians. An excerpt:

In addition, both Supreme Court precedent and that of this court hold that Indian tribes enjoy sovereign immunity from suits on commercial contracts, whether made on or off a reservation, so long as the subject business activity functions as an arm of the tribe. See Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998); Allen, 464 F.3d at 1046-47. Since (a) the Tribe is a party to the lease alleged in this case, (b) the lease contemplates the use of marina property owned by the Tribe and is located on the tribal reservation, (c) economic advantages of both the lease and the operation of HDR’s business inure to the Tribe’s benefit, and (d) immunity under the lease protects the Tribe’s treasury from HDR’s suit for over one million dollars in compensatory and punitive damages, the business transacted via the lease is properly deemed an activity of the Tribe for sovereign-immunity purposes.