economic development

MichGO v. Kempthorne Cert Petition

Matthew L.M. Fletcher1 Comment

Here is is: michgo-cert-pet-10-23-08

The questions presented are two-fold. First, the petitioners raise the nondelegation doctrine argument that caused Judge Rogers Brown in the D.C. Circuit to dissent below. And second, the petitioners make the same argument about recently recognized tribes that the Supreme Court will decide in Carcieri v. Kempthorne.

See our earlier posts here and here and here and here and a link to an Indian Country Today article about MichGO.

The interesting question here will be whether the government will file a response at all, given that there’s no circuit split (by MichGO’s admission), that the SCT already denied cert on the first issue in the Carcieri litigation, and that the second issue will be decided by Carcieri.

Oklahoma v. Native Wholesale Supply: Smokeshop Case Remanded to State Court

Matthew L.M. Fletcher

The Western District of Oklahoma granted the State of Oklahoma’s motion to remand an Indian taxation case back to state court after the tribally owned business removed the case to federal court. Ah, the well-pleaded complaint rule, not one of my favorites.

native-wholesale-supply-notice-of-removal

edmunson-motion-to-remand

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edmonson-v-native-wholesale-supply-dct-order

NYTs Article on Tribal Wind Power Projects

Matthew L.M. Fletcher

From the NYTs:

ROSEBUD, S.D. — The wind blows incessantly here in the high plains; screen doors do not last. Wind is to South Dakota what forests are to Maine or beaches are to Florida: a natural bounty and a valuable inheritance.

Native American tribes like the Rosebud Sioux now seek to claim that inheritance. If they succeed in building turbine farms to harness some of the country’s strongest and most reliable winds, tribal officials like Ken Haukaas believe, they could create a new economic underpinning for the 29,000 tribal members whose per capita annual income is about $7,700, less than a third the national average.

“We’re broke here,” Mr. Haukaas said. “We’re poor.” But, he added: “The wind is free. There’s energy here all the time.”

Continue reading →

Baylake Bank v. TCGC & Village of Hobart — Covenant Against Tribal Ownership of Land

Matthew L.M. Fletcher5 Comments

In a very interesting, even disturbing, development, the Village of Hobart, which has taken lands of the Oneida Indian Nation of Wisconsin through the power of eminent domain (Oneida v. Hobart), has now begun to use restrictive convenants running with the land to thwart the Nation. Here is the district court opinion upholding the restriction (from the same judge who found that the Village had the power of eminent domain against the tribe).

In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.

We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.

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2008 Term Preview: The Long Conference — September 29, 2008

Matthew L.M. Fletcher4 Comments

On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.

1. Hawaii v. Office of Indian Affairs (07-1372)

This petition has a fairly good chance to be granted.

The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).

2. Ho-Chunk Nation v. Wisconsin (07-1402)

I don’t think this one has much chance to be granted.

It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)

3. Kemp v. Osage Nation (07-1484)

This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.

Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.

4. Kickapoo v. Texas (07-1109)

This one has a slight chance for a grant.

I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.

Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.

5. Klamath Tribes v. PacificCorp (07-1492)

This one has no chance.

First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦

6. Matheson v. Gregoire (08-23)

Again, no chance.

First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.

7. South Fork Band v. United States (08-100, 08-231)

No chance.

This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.

8. United States v. Navajo Nation (07-1410)

Very, very good chance for a grant.

First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).

Either way you have a grant.

Carcieri v. Kempthorne: Amicus Briefs Supporting the Respondent

Matthew L.M. Fletcher

They’re here, courtesy of the Supreme Court Project:

In support of Respondents:

Amicus Brief of Narragansett Indian Tribe

Amicus Brief of Law Professors

Amicus Brief of NCAI

Amicus Brief of Historians

Amicus Brief of Standing Rock Sioux, et al.

Bob Miller on Intertribal and International Treaties for Economic Development

Matthew L.M. Fletcher

Bob Miller has posted “Inter-Tribal and International Treaties for American Indian Economic Development,” forthcoming in the Lewis & Clark Law Review. Here is the abstract:

American Indian Tribes and Indigenous peoples around the world are among the poorest groups in their countries. Economic development is an absolutely crucial issue for these governments and their people. Recently, two different efforts have been undertaken to create beneficial development based on treaties between Indigenous groups.

In August 2007, eleven American Indian Nations, Canadian First Nations, New Zealand Maori Iwis, and Australian Aborigine groups signed a treaty to engage in international economic activities. Dozens of other American Tribes and New Zealand Iwis have also signed this treaty or will do so in the next few months. In addition, Pacific Northwest Indian Tribes have drafted an inter-tribal treaty to facilitate the conduct of business on reservations.

This Article dissects these two treaties and addresses some of the unique legal issues that these treaties raise.

False Advertising Claim against Tribal Smokeshop

Matthew L.M. Fletcher

In Gristede Foods v. Unkechauge Nation/Shinnecock Trading Post, the district court refused to dismiss a Lanham Act claim against a tribal retailer. The plaintiff alleges that the retailer promised tax-free sales, but didn’t deliver. This is the second motion to dismiss denied by the court.

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gristede-v-unkechauge-dct-opinion-nov-2007

Indian Tribal Businesses and the Off-Reservation Market

Matthew L.M. Fletcher

My submission to the Lewis & Clark Law Review’s symposium issue on tribal economic development, “Indian Tribal Businesses and the Off-Reservation Market” is on SSRN. If it’s not available yet, it will be in a few days. Here’s the abstract:

The pre-American trading centers of the Great Lakes – Sault Ste. Marie, Michilimackinac, and Detroit – developed as natural manifestations of economic activity involving the Indigenous peoples of the region, as well as the French, the British, and lastly the Americans. In many ways, during that period, the Indian people controlled these markets. As history turned against the Indians, the Europeans acquired control of these markets. The federal Indian law and policy manifestation of this control can be explained in the phrase “measured separatism.” While measured separatism had value for Indian and American communities for a time, as well as serious disadvantages, the need Indian law controls over the market has receded to a significant extent. The recent limitations on off-reservation gaming are manifestations of this measured separatism. These controls should be a call for tribal business interests to drop some of their reliance on federal Indian law, which creates some economic advantages, and re-enter the larger economic world.

Judith Royster on Tribal Resources and Economic Development

Matthew L.M. Fletcher

Judith Royster has posted “Tribal Economic Development: Practical Sovereignty, Political Sovereignty, and the Secretary’s Shrinking Role in Natural Resource Development,” part of the Lewis & Clark Indigenous Economic Development Symposium. Here is the abstract:

One of the primary means of economic development for many Indian tribes is development of the reservation’s natural resources. Despite the extent and economic importance of the resource base, however, tribal control over the development and use of tribal natural resources has historically been limited. In the last few decades, Indian tribes have gained a far greater role in decision-making concerning the use of their natural resources. In part this increased role results from tribes asserting a greater say in what occurs within their territories, and in part from new federal laws that place more of the decision-making power in tribal hands.

The three major natural resources traditionally subject to leasing are agricultural and grazing lands, forests, and minerals. Each has been subject to federal statutes that follow a similar arc – comprehensive federal control and exploitation during the allotment period; a slight loosening of federal control, tribal consent, and concern with tribal revenue streams in the reorganization period; and new approaches focusing more on tribal participation, partnerships, and increased control during the modern era of self-determination. Most recently, Congress has begun to enact a next generation of resource development statutes that authorize tribes, subject to Interior-approved general regulations, to enter into specific development agreements without federal approval. Following a review of the trajectory of tribal resource development statutes, this article explores the most wide-ranging of these new statutes: the Indian Tribal Energy Development and Self-Determination Act of 2005.