Sixth Circuit to Decide Tribal Enterprise Immunity Case — UPDATED!

The case is Memphis Biofuels v. Chickasaw Nation Industries, being appealed to the Sixth Circuit from the Western District of Tennessee. The case involves the assertion by CNI, a Section 17 corporation, that it is entitled to sovereign immunity, and that there is no federal subject matter jurisdiction over this contract claim against it. The lower court granted CNI’s motion to dismiss and Memphis Biofuels has appealed to the Sixth Circuit.

Here are the lower court materials:

memphis-biofuels-complaint-and-exhibits

cni-motion-to-dismiss-and-exhibits

memphis-biofuels-response-to-motion-to-dismiss

cni-reply-motion-to-dismiss

cni-supplemental-memorandum

memphis-biofuels-supplemental-memorandum

memphis-biofuels-dct-order

Sixth Circuit materials:

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Chickasaw Nation on NPR’s Morning Edition

You can listen to the story at the link below, or read the text here.

A Sovereign (And Successful) Chickasaw Nation

by Arun Rath

Morning Edition, April 27, 2009 · If we think of the Chickasaw as a nation, their No. 1 foreign policy priority is trade. Their No. 1 trading partner? Texas.

The WinStar casino is right across the border in Oklahoma, and it’s the closest legal gambling to Dallas, so even on a Tuesday night, the vast parking lot is filled with Texas tags.

Like many Indian tribes, the Chickasaw rake in huge sums from their casinos. But there’s a certain nervousness here about basing a whole nation’s fortunes on gambling.

“My mom used to say, ‘Don’t put all your eggs in one basket,’ and that’s the essence of what we try to do with our businesses,” says Bill Anoatubby, who has been the governor of the Chickasaw Nation since 1987. He is now serving his sixth elected term. “There’s always this resistance to gaming — it’s in the community, it’s in the Congress — so you really, you’re not sure what the direction might be. Congress, with very little notice, could change the rules on us, and if they did, we would be — we could have problems.”

Anoatubby has spent much of the past 20 years working to strengthen the nation’s foundation by diversifying the tribe’s economy.

“We shouldn’t rely strictly on gaming, and we should invest as much as we can while the dollars are there,” he says. “We will take the profits from gaming, and we will invest those in new things.”

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Call for Papers: Tribal Nation Economics and Legal Infrastructure

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.

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Arizona Snowbowl Case — Will US Recommend Cert Grant, Too?

As Indianz reports, the Navajo Nation v. United States Forest Service cert petition is brewing. A bunch of amici have filed supporting the cert petition, which definitely gets the attention of the Supreme Court (or at least the cert pool).

There are times when the respondent to a cert petition agrees with the petitioner that the Court should grant cert and hear the case. It happened in Negonsott v. Samuels (link to cert pool memo) and it could happen again … maybe.

There isn’t a classic or clear circuit split, but the CA9 in the Snowbowl case has come up with the most restrictive way to interpret RFRA’s “substantial burden test,” and I bet the United States would like to see the CA9’s rule expanded nationwide. And since American Indian religious freedom rights don’t do very well in the SCT, the United States might think this is the right vehicle and take a gamble. I’m being pretty cynical, and it is pretty unlikely, but you never know.

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