Tribal Codes – Page 27

Grand Canyon Skywalk Development Cert Petition

September 6, 2013Matthew L.M. Fletcher2 Comments

Here is the cert petition in the case now captioned Grand Canyon Skywalk Development LLC v. Grand Canyon Resort Development Corporation:

Petition For A Writ Of Certiorari

Questions presented:

1. Does Montana v. United States, 450 U.S. 544 (1981) apply on tribal land, as this Court suggested in Nevada v. Hicks, 533 U.S. 353, 358 (2001), or does this Court acquiesce in the Ninth Circuit’s contrary decision in Water Wheel Camp Recreation Area v. LaRance, 642 F.3d 802 (9th Cir. 2011)?

2. Does a non-tribal member consent to tribal jurisdiction under Montana even when that “consent” comes in the form of a contract with a tribal corporation which expressly provides that disputes will be resolved through binding arbitration, not in tribal court, and where the tribal enterprise has expressly waived its sovereign immunity to permit arbitration?

3. Are intangible contract rights of a Nevada corporation located on federal land held in trust for the Tribe and thus subject to the Tribe’s eminent domain powers because they relate to activities on tribal land?

4. Does the bad-faith exception to National Farmers exhaustion require a showing that the tribal court acted in bad faith, or is it sufficient to demonstrate that the Tribe’s governing council (Tribal Council) did so and that the Tribe’s judiciary lacked judicial independence?

Lower court materials here.

Nooksack COA Stays Enrollments

August 28, 2013Matthew L.M. Fletcher

Here are the materials in Lomeli v. Kelly (Nooksack Ct. App.) and Roberts v. Kelly (Nooksack COA):

Roberts v Kelly Order on Motion for Permission to File Interloctory Appeal

Lomeli v Kelly Order Extending Stay

Roberts v Kelly Notice and Emergency Motion for Permission to Appeal Interlocutory Order And Aceptance of Appeal

Seattle Times Coverage of Nooksack Disenrollments

August 27, 2013Matthew L.M. Fletcher

Here.

Excerpt:

The federal government has been hesitant to get involved in tribal internal affairs, according to Robert Anderson, director of the Native American Law Center at the University of Washington and an enrolled member of the Minnesota Chippewa Tribe. A group of Snoqualmie members experienced a rare legal victory in 2009 when a federal court judge overturned their banishment and disenrollment.

Disenrollment decisions are not only about membership, but also about belonging, Raquel Montoya-Lewis, chief judge of the Nooksack Tribal Court, wrote in a court decision.

“Cultural and tribal identity lay at the heart of how we know ourselves. … Belonging to a tribe gives tribal members a sense of home, of connection to a community, whether one lives there or not,” Montoya-Lewis wrote.

Western Sky Motion to Dismiss Heldt Class Action in South Dakota

August 27, 2013Matthew L.M. Fletcher4 Comments

Here is the motion in Heldt v. Payday Financial LLC (D. S.D.):

Western Sky Motion to Dismiss

Complaint here.

Press Release on Federal Complaint against New York DFS over Tribal Payday Lending

August 22, 2013Matthew L.M. Fletcher

Here.

WASHINGTON (August 21, 2013) — After recent actions by New York Department of Financial Services (DFS) Administrator Benjamin Lawsky to unlawfully intimidate Native American tribes and the legal and licensed businesses they run, a coalition of Tribes has filed a complaint today with the United States District Court Southern District of New York requesting an injunction against Lawsky’s efforts. The tribes filing the lawsuit are members of the Native American Financial Services Association (NAFSA).

“Defendant Lawsky and the State of New York have overstepped their bounds with their illegal attacks on our tribes,” said Barry Brandon, Executive Director of the Native American Financial Services Association (NAFSA). “His actions are a flagrant denial of our rights as sovereign entities, and today, we are fighting back to defend these rights.”

“We have enjoyed these sovereign rights for centuries predating even the United States,” Brandon continued. “They have been established and reinforced by Constitutional law, federal legislation, and a long history of legal rulings. Our actions today will protect the sovereign rights of Native American tribes and their wholly-owned businesses from extraterritorial attempts to impose New York State laws on transactions governed by tribal law.”

“This is a straightforward case that is about the real world importance of Native American sovereign rights,” said David Bernick of Boies, Schiller & Flexner, LLP, who serves as Counsel of Record for the action. “Defendant Lawsky knows that he doesn’t have the authority to regulate and limit tribes’ sovereignty, which is why the Department of Financial Services has instead gone after tribes’ banking relationships. Since Defendant Lawsky has turned a blind eye to hundreds of years of precedent, he has left tribes with only one clear path: go to the courts to protect these very old and highly-respected rights.”

The complaint argues that tribes will suffer irreparable injury absent injunctive relief, as Defendant Lawsky’s intimidation tactics against banks and third-party processors have already led to significant harm to tribes’ business relationships. As a result, critical funding for government operations on tribal lands, such as health care, social services, and education will be severely impacted. Funding from these businesses can make up 25% of tribal operating budgets, at a minimum.

The lawsuit was filed on behalf of the Otoe-Missouria Tribe, a federally-recognized Indian Tribe; Great Plains Lending, LLC, a wholly-owned tribal limited liability company; American Web Loan, Inc., a wholly-owned tribal corporation; Otoe-Missouria Consumer Finance Services Regulatory Commission, a tribal regulatory agency; Lac Vieux Desert Band of Lake Superior Chippewa Indians, a federally-recognized Indian Tribe; Red Rock Tribal Lending, LLC, a wholly-owned tribal limited liability company; and the Lac Vieux Desert Tribal Financial Services Regulatory Authority, a tribal regulatory agency. Benjamin M. Lawsky, in his individual capacity and in his official capacity as Superintendent of the New York State Department of Financial Services, has been named as the Defendant.

David Bernick of Boies, Schiller & Flexner, LLP, is serving as Counsel of Record for the action with Robert Rosette serving as co-counsel and attorney representing the two tribes.

About NAFSA

The Native American Financial Services Association (NAFSA) formed in 2012 to advocate for Native American sovereign rights and enable tribes to offer responsible online lending products. Through the protection of consumer rights and sovereign immunity, NAFSA provides vital services to tribally operated lenders serving the under-banked with better short term financial services, furthering economic development opportunities in Indian Country. Continue reading →

Federal Court Dismisses Grand Canyon Skywalk Development Complaint Seeking Arbitration against Hualapai Tribe

August 22, 2013August 22, 2013Matthew L.M. Fletcher1 Comment

Here are the materials in Grand Canyon Skywalk Development LLC v. Hualapai Indian Tribe of Arizona (D. Ariz.):

DCT Order Denying Motion to Compel Arbitration

First Amended Complaint

Amended Complaint Exhibit Set 1

Amended Complaint Exhibit Set 2

Hualapai Motion to Dismiss

Hualapai Motion to Disqualify

Charlton Declaration

Rhodes Affidavit

GCSD Opposition

Greenberg Traurig Opposition to Motion to Disqualify

Harrison Declaration

Overton Declaration

Overton Exhibit Set 1

Overton Exhibit Set 2

Overton Exhibit Set 3

Quasala Declaration

Hualapai Reply in Support of Motion to Disqualify

Hualapai Reply in Support of MTD

From the opinion:

Defendants Hualapai Indian Tribe and seven named members of the Hualapai Tribal Council have filed a motion to dismiss Plaintiff Grand Canyon Skywalk Development, LLC’s (GCSD) first amended complaint to compel arbitration. Doc. 19; see Doc. 18. The motion has been fully briefed. Docs. 21, 29. Defendants also have filed a motion to disqualify Greenberg Traurig (GT) as counsel for GCSD and for related orders protecting theTribe’s confidential information. Doc. 25. GT has filed a response in opposition which GCSD joined. Docs. 43, 37. For the reasons that follow, the Court will grant Defendants’ motion to dismiss GCSD’s first amended complaint, and deny Defendant’s motion to disqualify GCSD’s counsel and for related orders.

Prior post on this specific suit is here.