Tribal Codes

EEOC Files Conditional Cross-Petition in Navajo Tribal Preference Case

Matthew L.M. Fletcher1 Comment

Here: EEOC Conditional Cross-Petition

The question presented:

Whether the Secretary of the Interior is a “required party,” within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, to an action by the Equal Employment Opportunity Commission against a private employer, where the challenged conduct was undertaken pursuant to a federally approved mining lease between the employer and an Indian Tribe, but no federal agency is a party to the lease.

The cert petitions filed by Peabody Coal and the Navajo Nation are here.

New Book on Navajo Tribal Labor Relations

Matthew L.M. Fletcher

David Kamper has published “The Work of Sovereignty: Tribal Labor Relations and Self-Determination at the Navajo Nation.” Here is the book’s website.

And the description:

Who is shaping the future of economic development in Indian Country? Who has a say in tribal economic growth and who benefits? What role do American Indian workers play in shaping how tribal economies and enterprises work? What would it mean to conceive of indigenous self-determination from the vantage point of work and workers? The Work of Sovereignty addresses these vital questions. It explores the political, economic, and cultural forces that structure and influence indigenous economic development, giving special attention to the perspectives and priorities of the indigenous working people who build tribal futures with their everyday labor. Kamper argues for the importance of recognizing tribal labor relations as a factor in indigenous economic enterprises from gaming to health care and beyond. Although most research on tribal sovereignty and economic development focuses on legal theory and governmental operations, The Work of Sovereignty centers on the people who make sovereignty work. It presents a thoughtful, in-depth look at the ways labor relations play out in Indian Country, how tribal employees view their relationships with their bosses and tribal enterprises, and how this view connects to their enactment of indigenous self-determination.

Peabody Coal and Navajo Nation File Cert Petitions against EEOC over Navajo Tribal Employment Preference

Matthew L.M. Fletcher3 Comments

Here is the Peabody Coal petition: Peabody Coal Cert Petition.

The question presented:

Where the EEOC contends that conduct required by a tribal coal mining lease provision mandated by the Secretary of the Interior violates Title VII of the Civil Rights Act of 1964, which statute expressly bars the EEOC from suing the Secretary to enforce Title VII, does Federal Rule of Civil Procedure 14 permit the coal mining lessee or the tribal lessor to implead the Secretary as a third-party defendant?

And here is the Navajo cert petition: Navajo Nation Cert Petition

The questions presented:

1. May the sovereign immunity of the United States and of a federally recognized Indian tribe, preserved in Title VII of the Civil Rights Act of 1964, be abrogated by application of Rules 14 and 19 of the Federal Rules of Civil Procedure?

2. May a court use Rule 14 to permit or require a party to implead the Secretary of the Interior in a case where the applicable statute does not confer a right of contribution?

Lower court materials here.

And here is Dr. Ray Austin’s fine history of the tribal law in question. And my paper from 7 years ago on Rule 19 and Indian tribes. [Read my paper and you’ll know how this is going to turn out.]

Anthony Broadman on Tribal Bankruptcy Law

Matthew L.M. Fletcher

From Casino Enterprise Management:

For businesses unable to pay creditors, bankruptcy can offer rebirth or an orderly demise. In either case, the federal bankruptcy process can protect debtors from their creditors, giving “to the honest but unfortunate debtor … a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.” (Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).) In other words, filing bankruptcy can be a valuable tool in the life of a business concern. But it is one tool that has not been used widely by tribal enterprises, let alone tribal governmental gaming operations.

The federal bankruptcy code dictates how businesses die and how their creditors divide what is left. Its use, like the use of corporate codes at the inception of a business, goes to the heart of what it means to be a firm in a particular jurisdiction. So it is somewhat curious that tribal businesses are prevented, either practically or legally, from using tribal law to order their affairs in bankruptcy. At the very least, it runs counter to the right of tribes “to make their own laws and be ruled by them.” (Williams v. Lee, 358 U.S. 217, 220 (1959).)

The current economic climate has triggered speculation regarding how tribal gaming operations would navigate the bankruptcy process. Fanned by the bankruptcy of Greektown Casino Hotel (once partially owned by a tribe) and the Wells Fargo/Lac du Flambeau debacle, that speculation, coupled with cases abrogating tribal sovereign immunity in the bankruptcy context, suggests that tribes should at least attempt to control their exposure to insolvency by (1) legislating tribal approaches to bankruptcy and (2) contracting with potential future creditors and potentially tribal debtors regarding a common treatment for bankruptcy in Indian country. If federal bankruptcy laws do not work for tribe-owned businesses, tribal bankruptcy laws should.

It is likely that, if implemented, both approaches would be challenged. A tribal bankruptcy code would be attacked as infringing on the exclusive jurisdiction of the federal bankruptcy courts. Agreements with potential future debtors and creditors would be attacked based on tribal court jurisdiction over such entities. Both challenges may be surmountable—and worth the trouble. Non-Indian creditors might even eventually find tribal bankruptcy to be quicker, more efficient and more predictable than attempts to fit tribal businesses into the typical bankruptcy process.

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Little River Band Enters into Collective Bargaining Agreement with United Steelworkers

Matthew L.M. Fletcher

Here is the ratifying resolution: 10-1220-059 Ratifying Collective Bargaining Agreement

And the press release:

(December 21st, 2010) Manistee, MI

Historic Collective Bargaining Agreement Signed under Tribal Law

The Little River Band of Ottawa Indians announced today that a collective bargaining agreement has been reached between the Little River Casino Resort and the United Steelworkers.  The agreement is the first to be reached after a union election campaign and collective bargaining process governed solely by tribal law.  Security guards voted last Thursday to approve the agreement. The Board of Directors of the Resort subsequently approved it on Monday, December 20th, and the Agreement is effective upon that approval.

“This is proud moment for our Tribe,” said Stephen Parsons, Tribal Council Speaker for the Band.  “We have worked hard to design a fair law to govern labor relations within our jurisdiction.  This agreement shows that tribal sovereignty works.”

Tribal Ogema Larry Romanelli echoed this sentiment:  “This agreement is just another progressive step for the Little River Band of Ottawa Indians as we accept responsibility for our own affairs and fairly protect the interests of all parties involved.”

The Little River Casino Resort operates pursuant to the Indian Gaming Regulatory Act, a sweeping federal law enacted by Congress to enable tribes to generate revenues to support tribal government—similar to state lotteries.  The Band’s law governs labor relations within its public sector.

 

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Salt River Project Federal Challenge to Navajo Labor Relations Board Dismissed

Matthew L.M. Fletcher1 Comment

Here are the materials in Salt River Project Agricultural Improvement and Power District v. Lee (D. Ariz.):

DCT Order Dismissing Claim

Navajo Exhaustion Motion to Dismiss

Navajo Rule 19 Motion to Dismiss

Salt River Motion for Summary Judgment

This case is on remand from the Ninth Circuit — and that order is here.

 

Oneida Waives Immunity in Madison County v. OIN Suit Pending before the Supreme Court

Matthew L.M. Fletcher2 Comments

To say the least, an interesting development.

Here is the letter referencing the OIN ordinance waiving immunity irrevocably: 2010_11_30 Letter to Clerk re Declaration and Ordinance.

Madison County’s opening merits brief is due today.

Ray Austin & Howard Brown on the Navajo Preference in Employment Statute

Matthew L.M. Fletcher3 Comments

Howard L. Brown & Hon. Raymond Austin will soon publish “The Twenty-Fifth Anniversary of the Navajo Preference in Employment Act” in the New Mexico Law Review. Here is a sneak preview: Navajo Preference in EmploymentAct, 40 NMLR 17 (2010).

A very, very timely and important article, especially given the recent Ninth Circuit order and remand in EEOC v. Peabody Coal.

Ho-Chunk Tribal Court Addresses DNA testing for Tribal Enrollment Purposes

Matthew L.M. Fletcher1 Comment

We imagine the DNA issue will arise again and again in Indian nations all over.

Here is the opinion in Powless v. NCN Enrollment Committee (CV 10-15 Decision).

An excerpt:

The DNA test allowed into evidence by the Committee is hearsay as defined by the FEDERAL RULES OF EVIDENCE (hereinafter FED. R. EVID.) 801(c). It is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. A written assertion is considered a “statement.” FED. R. EVID. 801(a). Thus, the DNA test‟s assertion that Mr. Powless is not the petitioner‟s father is a “statement.” A “declarant” is a person who makes a statement. FED. R. EVID. 801(b). The “declarant” of the results of the DNA test is the Oklahoma State University Human Identity Laboratory (hereinafter OSU Laboratory). At the hearing, no one from the OSU laboratory testified. The DNA test results were offered to prove the truth of the matter asserted; specifically that Mr. Powless is not the father of the petitioner. Therefore, the DNA test results meet the definition of hearsay. Such hearsay is inadmissible. FED. R. EVID. 802. The DNA test does not fall under the business records hearsay exception. FED. R. EVID. 803(6) allows business records to be admitted “if witnesses testify that the records are integrated into a company’s records and relied upon in its day to day operations.” Matter of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir. 1981). Although OSU laboratory may engage in DNA analyses on a daily basis, those analyses are not akin to the running of the day-to-day operations of the business. The necessary witnesses also
did not testify at the removal hearing.

Federal Court Denies Seneca Nation Motion for Preliminary Injunction in Tax Collection Case

Matthew L.M. Fletcher

Here is the opinion: DCT Denying SNI Motion for Preliminary Injunction

The court issued a stay pending appeal.