Lloyd Miller: A New Deal for Native America

From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:

In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs.  After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments.  Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.

Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos.  Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California).  Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%.  The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.

Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.

Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.
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Prepared Testimony in SCIA Hearing on Economic Stimulus

From SCIA:

DR. ROBERT MIDDLETON
Director, Office of Indian Energy and Economic Development, U.S. Department of the Interior, Washington, DC

Accompanied by: MR. JACK REVER, Director, of Facilities Management and Improvement, U.S. Department of the Interior, Washington, DC

MS JACKIE JOHNSON-PATA
Executive Director, National Congress of American Indians, Washington, DC

MS ROBIN BUTTERFIELD
Vice President, National Indian Education Association (NIEA), Washington, DC

MR RENO FRANKLIN
Chairman, National Indian Health Board, Washington, DC

MS. JULIE KITKA
President, Alaska Federation of Natives, Anchorage, Alaska

CA9 Decides Philip Morris v. King Mountain Tobacco

Here is the opinion from the Ninth Circuit denying that a colorable claim to tribal court jurisdiction existed in this trademark violation issue. And here are the briefs:

philip-morris-opening-brief

king-mountain-response-brief

philip-morris-reply-brief

Lewis and Clark Law Review Symposium on Tribal Economic Development Published

The articles are available here. Authors include Gavin Clarkson, David Haddock, Richard Monette, Alex Skibine, Judy Royster, Bob Miller, and me.

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Dollar General v. Mississippi Band of Choctaw Indians — Tribal Court Jurisdiction — Updated

The Southern District of Mississippi granted a TRO against the tribal court in a case brought by tribal members against the owner of a Dollar General on tribal trust land. How this case doesn’t meet the Montana 1 test is beyond me.

Here are the materials:

dolgen-v-miss-band-tribal-court-dct-order

Miss Band Choctaw SCT Opinion

dollar-general-motion-for-tro

townsend-motion-for-tro

mississippi-band-response

dollar-general-reply-brief

Business Law Today Feature on Indian Businesses and Tribal Courts

The ABA’s Business Law Today features several short articles on federal Indian law and business here. Links to the articles are below the fold.

Our mini-theme: Native America

Culture, Business and the Law

The law is a system that provides social cohesion while at the same time revealing much about our culture in a nation of many people and customs. In this issue, we celebrate the Native peoples of our nation, which include Native Americans, Alaska Natives, and Native Hawaiians.

Few of us have had the opportunity to develop a deep understanding of the people who have lived for centuries in the places we now call home. The articles in this issue are written by lawyers who are part of Native communities and provide unique insight into the interplay between America’s federal, state, and tribal laws.

One author grew up on a reservation, not having seen the ocean on the East or West Coast prior to earning admittance to one of the best, and most elite, undergraduate universities in the country. This author currently spends half the year near the Pacific Ocean and half the year on the reservation. Another author grew to adulthood before learning of the family’s Native culture and beginning a life-altering journey of discovery, which included going through traditional rituals to be formally admitted to the tribe.

While the articles focus on legal, procedural, and business issues implicated when dealing with Native peoples or their lands, they also provide some perspective on the incredible wealth of cultures in this country that is reflected in our legal system.

–Nicole Harris

San Francisco

Deal or no deal?
Understanding Indian Country transactions
By Gabriel S. Galanda and Anthony S. Broadman
Encouraging business with Indian tribes
A brief discussion of the tribal exhaustion doctrine
By Thomas Weathers
Tribal courts and alternative dispute resolution
Mediated settlements and arbitration awards in tribal court
By Pat Sekaquaptewa
Avoiding trouble in paradise
Understanding Hawai`i’s law and indigenous culture
D. Kapua`ala Sproat

Tenth Circuit Affirms Immunity for Tribal Business Arms

In Native American Distributing v. Seneca-Cayuga Tobacco Co., the Tenth Circuit affirmed a district court order dismissing a claim against the company, a wholly owned business of the Seneca-Cayuga Indian Tribe. A closer question was whether the tribe’s officers might be individually liable under Ex parte Young, but the plaintiffs did not properly plead a claim against them in their individual capacities.

Here are the briefs.

And the opinion: native-american-distributing-ca10-opinion

Ninth Circuit Affirms Immunity of Tribally Chartered Corporation

In Cook v. Avi Casino, a divided Ninth Circuit panel held that a dram shop action against Avi Casino Enterprises, a wholly owned corporation owned by the Fort Mohave Indian Tribe and chartered under the laws of the tribe, was barred by sovereign immunity. The panel split over the question of whether the federal court had jurisdiction over the claim on the basis of diversity.

cook-opening-brief

avi-casino-brief

cook-v-avi-casino-ca9-opinion

NYTs Article on Alaskan Native Corporations

From the NYTs:

The Alaska Native corporations have had Senator Ted Stevens to thank nearly every step of the way.

In 1971, a few years after he was first elected to the Senate, Mr. Stevens helped write the Alaska Native Claims Settlement Act. Also known as the “Billion Dollar Deal,” the act established more than 200 corporations to manage almost 45 million acres and gave $962 million to Alaska Natives in return for their ceding of all aboriginal land rights.

When the Alaska Native corporations struggled in their early years as they tried to turn people who had survived on fishing and hunting into business managers and to teach thousands of villagers to call themselves shareholders, Senator Stevens was there, too.

He helped corporations with financial difficulties by persuading Congress to approve a provision in the 1986 Tax Reform Act allowing the corporations to sell their accumulated tax losses to profitable companies seeking tax write-offs.

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County Taxation of Mixed-Ownership Tribal Enterprise

The Western District of Washington denied a motion for a preliminary injunction brought by the Confederated Tribes of the Chehalis Reservation to prevent Thurston County, Washington from taxing a business (a Great Wolf Lodge) jointly owned by a non-native corporation and the tribes.

chehalis-tribes-motion-for-preliminary-injunction

thurston-county-response

chehalis-reply-brief

confederated-chehalis-tribes-v-thurston-county-dct-order