Tribal Codes – Page 27

Split Fifth Circuit Panel Affirms Tribal Civil Jurisdiction over Nonmember in Dolgencorp v. Miss. Choctaw

October 4, 2013Matthew L.M. Fletcher6 Comments

Here is the opinion. An excerpt:

Dolgencorp, Inc. and Dollar General Corp. (collectively “Dolgencorp”) brought an action in the district court seeking to enjoin John Doe, a member of the Mississippi Band of Choctaw Indians, and other defendants (collectively “the tribal defendants”) from adjudicating tort claims against Dolgencorp in the Choctaw tribal court. The district court denied Dolgencorp’s motion for summary judgment and granted summary judgment in favor of the tribal defendants, concluding that the tribal court may properly exercise jurisdiction over Doe’s claims. Because we agree that Dolgencorp’s consensual relationship with Doe gives rise to tribal court jurisdiction over Doe’s claims under Montana v. United States, 450 U.S. 544, 564-66 (1981), we AFFIRM the district court’s judgment.

Briefs are here.

Lower court decision and materials here.

Update in Federal Trade Commission v. Payday Financial (Martin Webb) — Defendants Ordered to Pay FTC More than $400K

October 4, 2013Matthew L.M. Fletcher2 Comments

Here are the new materials in Federal Trade Commission v. Payday Financial LLC (D. S.D.):

52 PF Motion for Summary J

58 FTC Response

60 PF Reply

94 FTC Motion for Summary J

103 PF Opposition

114 FTC Reply

117 DCT Order Denying PF Motion for Summary J

120 FTC Memorandum of Supplemental Authority

120-1 Exhibit A

120-3 Exhibit C

131 DCT Order Granting Partial Summary J to FTC

Materials from the complaint here.

Updated Materials in Nooksack Disenrollment Appeal — Roberts v. Kelly

September 25, 2013September 25, 2013Matthew L.M. Fletcher

Here:

Roberts v Kelly – First Amended Complaint w Appendices

Roberts v Kelly Order Accepting First Amended Complaint

Roberts v. Kelly Declaration of Gabriel S. Galanda in Support of Motion for Contempt

Roberts v. Kelly Motion for Contempt Against Kelly Defendants

Roberts v. Kelly Motion for Reconsideration of Sua Sponte September 6, 2013 Order

Roberts v. Kelly Order Denying Motion for Contempt

Bellingham Herald: http://www.bellinghamherald.com/2013/09/19/3212992/both-nooksack-tribal-factions.html

Al Jazeera America!: http://america.aljazeera.com/watch/shows/live-news/2013/9/tribal-families-battleefforttorejectthem.html

Tort Claim against Quapaw Tribe and Casino Dismissed

September 20, 2013Matthew L.M. Fletcher

Here are the materials in Martin v. Quapaw Tribe (N.D. Okla.):

20 DCT Amended Order Dismissing Complaint

Elizabeth Warner on Tribal Environmental Law

September 18, 2013September 18, 2013Matthew L.M. Fletcher

Elizabeth Warner has posted “Examining Tribal Environmental Law” on SSRN. Here is the abstract:

Federal environmental law recently celebrated its 40th birthday and much has been said about it in the past four decades. Today, however, little is said about the role the third sovereign, tribal nations, plays in the development of environmental law. Although some scholarship exists regarding the development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This article fills that vacuum by taking a first look at how tribal environmental law has developed and exploring the laws of one tribal nation that has enacted several environmental laws. The article also begins the discussion of what may be normative practices in the development of tribal environmental law.

Where the federal government has not pre-empted them, tribes may develop their own tribal environmental laws. The time has never been better for an examination of tribal environmental laws. From a historical perspective, Indian country has been the location of substantial environmental contamination. Today, Indian country possesses a substantial potential for natural resource development. Additionally, two recently enacted federal laws, the Indian Tribal Energy Development and Self-Determination Act of 2005 (specifically the Tribal Energy Resource Agreement or TERA provisions) and the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), may spur development of tribal environmental laws. To take advantage of “streamlined” development provisions under both the TERA provisions and HEARTH Act, tribes must develop certain environmental review provisions. These factors in combination with the fact that the environment plays an important cultural and spiritual role for many tribal communities mean that now is an optimum time to consider tribal environmental law.

To start this important discussion on existing tribal environmental law, the article begins in Part II with an introduction to environmental law that is applicable in Indian country, establishing a foundation from which to explore the development of tribal environmental law. Next, in Part III, the article examines facts that may drive the development of tribal environmental law today. In addition to the fact that many tribes have historically faced substantial environmental contamination, modern factors likely to impact most tribal nations include the promotion of tribal sovereignty and also the need to respond to emerging environmental concerns. The article next describes and classifies the laws of 74 federally recognized tribes, highlighting environmental laws the tribes have enacted. This portion of the article concludes that a significant number of federally recognized tribes have no publically available tribal environmental laws. In light of this finding, Part V examines the existing laws of one tribal nation, the Navajo Nation, which has actively developed its tribal environmental laws. Moreover, Part V also begins the discussion of what may be norms for the development of tribal environmental law in the future. In this regard, this article establishes the foundation for the development of a robust examination of tribal environmental law.

Judge Hogan Sets Cherokee Freedmen Oral Argument for April 29, 2014

September 18, 2013September 17, 2013Matthew L.M. Fletcher2 Comments

Here:

2013-09-17 Order Granting Joint Motion for Order Setting Briefing Schedule for Summary Judgment on Core Issue

Colville Enacts Same-Sex Marriage Recognition Statute

September 10, 2013Matthew L.M. Fletcher1 Comment

Here (h/t here). They join Coquille, Suquamish, Little Traverse, Pokagon, and Santa Ysabel. For other tribes interested, see the toolkit Ann Tweedy posted a while back.

An important point:

Practically speaking, Finley said, it will mean that gay partners can have the same rights as a married couple of different sexes. One change already enacted allows anyone who works for the tribe to add a spouse of the same sex to their insurance and benefits.

He said the tribe will now begin modifying its other codes, plans and policies to make sure they agree with the newly passed amendment.

Federal Court Orders Tribal Exhaustion in Coeur d’Alene Reservation Waste Dumping

September 10, 2013Matthew L.M. Fletcher

Here are the materials in St. Isidore Farm LLC v. Coeur D’Alene Tribe of Indians (D. Idaho):

1 Complaint

3-1 St. Isadore Motion for TRO

7 DCT Order Granting TRO

17 Coeur d’Alene Response

21 Coeur d’Alene Motion to Dismiss

28 St. Isadore Reply

43 St. Isadore Response

44 Coeur d’Alene Reply

61 DCT Order Granting Motion to Dismiss

News coverage here.

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.