economic development

Business Law Today Feature on Indian Businesses and Tribal Courts

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher2 Comments

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

Matthew L.M. Fletcher

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.

Continue reading →

County Taxation of Mixed-Ownership Tribal Enterprise

Matthew L.M. Fletcher1 Comment

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

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

native-wholesale-supply-opposition-to-motion

edmunson-reply

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.

Continue reading →

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.