economic development

Has the St. Croix/Bad River Challenge to BIA’s Off-Rez Gaming Regs Been Mooted?

Matthew L.M. Fletcher

From Indianz:

The Ho-Chunk Nation today announced the purchase of land in Beloit, Wisconsin, where two other tribes have sought to build an off-reservation casino.

In a press release, Vice-President Daniel Brown said tribe said it hopes to pursue economic development opportunities in Beloit. “We are looking forward to the chance to talk with local leaders about potential opportunities to bring jobs, economic development, and further investments to the Beloit area,” he said.

The St. Croix Chippewa Tribe and the Bad River Band of Lake Superior Chippewa Indianswant to build a casino on the site in Beloit. The Bush administration rejected the project in January of this year, and the issue will be heard by the D.C. Circuit Court of Appealsnext week, on November 3.

In the press release, Brown said the Ho-Chunk Nation “remains the only tribal nation with a real opportunity to site a casino” in Beloit. The tribe’s Class III compact allows another gaming site in the state, he said, and the tribe has “federally-recognized aboriginal ties” to Beloit and the region.

Continue reading →

IRS Chief Counsel Issues Memorandum re: Tribal Tax-Exempt Bonds

Matthew L.M. Fletcher

AM2009-014

An excerpt:

This memorandum addresses the interaction between tribal economic development bonds under
§7871(f) of the Internal Revenue Code (“Tribal Economic Development Bonds”) and build America
bonds under § 54AA (“Build America Bonds”). This memorandum should not be used or cited as
precedent.

ISSUE
Can an Indian tribal government that has received an allocation of volume cap pursuant to §7871(f)
(1) of the Internal Revenue Code (the “Code”) to issue Tribal Economic Development Bonds elect
under § 54AA(d)(1)(C) to issue those bonds as Build America Bonds instead of issuing the bonds as
tax-exempt bonds under §103?

CONCLUSION
An Indian tribal government that has received an allocation of volume cap pursuant to §7871(f)(1) to
issue Tribal Economic Development Bonds can elect under §54AA(d)(1)(C) to issue such bonds as
Build America Bonds instead of issuing the bonds as tax-exempt bonds under §103.

Thanks to J.W. for this!

NPR on Tribal Economic Development

Matthew L.M. Fletcher1 Comment

From Tom Schlosser:

This week the National Public Radio program “All Things Considered” airs a two-episode series on Tribal economic development in the Southwest. The programs highlight the diverse issues, challenges, and opportunities for Tribes in different locations and which possess different levels of resources. The program focuses on two particular Native economic development models: The Navajo Nation and The Salt River Pima – Maricopa Indian Community.

Interviews include:

Joe Shirley, Navajo Nation President

Martin Harvier, Vice President of the Salt River Pima – Maricopa Indian Community

Quannah Dallas, Salt River Pima’s Economic Development Manager

Brett Isaac, Shonto Community Development Corporation

Joseph Kalt, Director of Harvard University’s American Indian Economic Development Project

Greg Guedel, Chair of Foster Pepper PLLC’s Native American Legal Services Group

Part I of the program, focusing on the Navajo Nation, can be downloaded HERE.

Part II of the program, focusing on the Salt River Pima – Maricopa Indian Community, can be downloaded H

Federal Court Holds Unkechauge Nation Retains Sovereign Immunity

Matthew L.M. Fletcher

Here is the opinion in this long-running dispute involving the Unkechauge Poospatuck smoke shop–Gristede Foods v. Unkechauge Poospatuck Smokeshop (E.D. N.Y.). Here, the court holds that the tribe is immune from suit, having demonstrated that it meets the Montoya test for tribal sovereignty — Gristede’s Foods DCT Order

An excerpt:

In light of the foregoing analysis of the evidence, the court finds that defendants have established by a preponderance of the evidence that the three Montoya criteria are satisfied. Consequently, the Unkechauge meets the common law definition of a “tribe” and is entitled to immunity from suit in the present action. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Turner v. United States, 248 U.S. 354, 358 (1919). Supreme Court cases “recognize that the Indian tribes have not given up their full sovereignty” which is “of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete deference. But until Congress acts, the tribes retained their existing sovereign powers.” United States v. Wheeler, 435 U.S. 313, 322-323 (1978). There is no evidence that the Unkechauge waived or abandoned their tribal immunity or that Congress has abrogated the immunity of the Unkechauge. Because the Unkechauge is a tribe pursuant to federal common law, they enjoy sovereign immunity. Thus, in the absence of a waiver or congressional abrogation of immunity, the court lacks subject matter jurisdiction to determine plaintiff’s claims against the Tribe.

However, the smokeshop itself is not immune, the court applying a common law test to determine whether the smokeshop is an arm of tribal government:

The Poospatuck Smoke Shop has not satisfied these criteria. The only evidence that the Smoke Shop submitted in support of its status as an entity of the Unkechauge is Chief Wallace’s testimony that businesses on the Unkechauge tribal grounds must be licensed by the tribal council. (Wallace Tr. at 85, 157; 12/22/08 Oral Arg. Tr. at 41.) This testimony does not satisfy the above factors by a preponderance of the evidence for establishing that the Smoke Shop is an arm of the tribe. Therefore, the Poospatuck Smoke Shop’s motion to dismiss is denied.

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.