Here:
2013-08-19 Order Re-Transferring Case to DC
Materials later. It’s lunchtime.:
DCT Order Denying Motion to Transfer — 3-15-13
Cherokee Freedmen Motion to Reconsider
tribal courts
Match-E-Be-Nash-She-Wish Pottawatomi — Notice for Appellate Justices
Here:
From the notice (read the notice for other details):
The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Gun Lake Tribe) is seeking three (3) Appellate Justices to serve as the Court of Appeals body of the Tribe. The authority of the Match-E-Be-Nash-She-Wish Band of Pottawatomi/Gun Lake Tribal Court of Appeals is defined by Gun Lake Tribal Judicial Ordinance. The Court of Appeals has jurisdiction to hear all appeals arising from Tribal Court decisions or proceedings.
The Court of Appeals shall consist of three (3) Justices, each appointed by majority vote of the Tribal Council at a meeting at which a required quorum plus one additional Tribal Council member is present. At least two (2) of those Justices shall be attorneys who are or have been licensed to practice law before the courts of a state in the United States and who have not been disbarred from practicing law in any tribal, federal, or state court, provided, however, that if a person has been disbarred but later reinstated, such person shall be eligible. The other Justice shall be either a registered voter of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians or an attorney who is, or has been, licensed to practice law before the courts of a state in the United States and who has not been disbarred from practicing law in any tribal, federal, or state court, provided, however, that if a person has been disbarred but later reinstated, such person shall be eligible. No Court of Appeals Justice may sit simultaneously as a Tribal Court Judge. Each Court of Appeals Justice shall be at least twenty-five (25) years of age.
Press Release on Federal Complaint against New York DFS over Tribal Payday Lending
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
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
Amended Complaint Exhibit Set 1
Amended Complaint Exhibit Set 2
Greenberg Traurig Opposition to Motion to Disqualify
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.
Update on Nooksack Disenrollments — Restart on Disenrollment Process
News coverage on the impact of the disenrollments on school-age children here.
Materials in Roberts v. Kelly (Nooksack Tribal Court):
Roberts v. Kelly Motion for Temporary Restraining Order
Roberts v. Kelly Declaration of Gabriel S. Galanda In Support of TRO Motion wExhibits
Roberts v. Kelly Motion to Disqualify Chief Judge Raquel Montoya Lewis
Roberts v. Kelly Order Denying Emergency Temporary Order Hearing
Roberts v. Kelly Order Denying Motion To Disqualify Hon. Raquel Montoya-Lewis
Materials in Lomeli v. Kelly (Nooksack Ct. App.):
Spirit Lake Leadership Dispute — Yankton v. Hopkins
Here is the federal court complaint:
Federal Court Reopens Inetianbor v. Cashcall (Again) After Plaintiff Shows Reservation Arbitration a Sham
Nooksack COA Stays Disenrollment Proceedings Pending Appeal
And the materials in Lomeli v. Kelly (Nooksack Tribal Ct. App.):
Emergency Motion for Stay of Tribal Court Judgment
Order Granting Appellate Review and Staying Proceedings
And a new suit in tribal court, with a sitting council member as lead plaintiff, Roberts v. Kelly (Nooksack Tribal Ct.):
New Student Scholarship on the Tribal Law and Order Act
Seth J. Fortin has published “The Two-Tiered Program of the Tribal Law and Order Act” (PDF) in the UCLA Law Review Discourse.
Here is the abstract:
The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need to make those protections a reality. Moreover, the Act leaves vague and open to interpretation the precise form those protections should take, which is an open invitation to federal courts to scrutinize tribal court procedure; this, in turn, may put tribal courts in the position of choosing between longer sentences and retaining their traditional character. These two obstacles—lack of funding, and the danger to tribal courts’ unique character— mean that the Act is likely to sort tribes into two “tiers”: wealthier or more assimilated tribes will be able to take advantage of the longer sentences, while tribes that cannot afford (whether financially or culturally) to change their practices will be left unable to adequately sentence serious offenders. And because of the way the Act resolves a longstanding ambiguity in Indian law, some tribes in the latter group may be left with less sentencing power than they had previously.
New Paper on the Availability of Tribal Law
Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:
This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.
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