Fletcher & Jurss: “Tribal Jurisdiction – A Historical Bargain”

Matthew L.M. Fletcher

Matthew Fletcher and Leah Jurss have posted “Tribal Jurisdiction — A Historical Bargain” on SSRN.

Here is the abstract:

The existing rhetoric surrounding tribal civil jurisdiction over non-Indians often leaves out the historical foundations to that jurisdiction. This article compares the tribal economies of the 18th and 19th centuries with the current environment of gaming and economic development on tribal lands. Though non-Indians and nonmembers occasionally object to tribal jurisdiction, the long history of tribal governance and economic regulation demonstrates that nonmembers have received and continue to receive the benefit of a bargain that places them under considerable tribal regulation in exchange for access to tribal markets.

Through a detailed survey of treaties, tribal statutes, and federal laws covering pre-1970’s tribal economic regulation, this article reveals that non-Indians have continually consented to tribal jurisdiction to access these tribal markets, making outliers of the non-Indians attempting to access tribal markets without consenting to tribal market regulations. Analyzing the laws surrounding the federal and tribal licensing of Indian traders; the Great Lakes fur trade; the marriage laws of the Five Civilized Tribes; and the procedures established for dealing with intruders on Indian lands in the 18th and 19th centuries demonstrates the vast historical underpinnings of the current efforts to retain civil jurisdiction over non-Indians.

This is a work in progress, and so as usual we would be delighted for helpful constructive criticism. Miigwetch!

 

First Nation Housing Addressed by Government Officials and Report

Sarah M Donnelly

Link to APTN coverage here.

The price tag to fix homes and infrastructure on Manitoba reserves is $2 billion when $150 million is the government’s annual budget for all First Nations.

Indigenous Affairs Minister Carolyn Bennett said she’s not deterred by the $2-billion price tag. She couldn’t explain exactly how the new Liberal government will tackle the backlog, but said improving First Nations housing is a priority.

“I’ve been in those homes,” Bennett said in an interview. “It is a disgrace for Canadians to watch. There is a consensus in this country that we have got to get going on this.

“The sticker shock on any of these things can’t get in the way of us beginning what has to happen.”

Seminole Tribes Sues Wells Fargo over Hidden Fees on Minor Trust Accounts

Matthew L.M. Fletcher1 Comment

Here is the complaint in Seminole Tribe v. Wells Fargo Bank NA (17th Jud. Cir., Fla.):

Complaint

An excerpt:

The Seminole Tribe of Florida seeks to recover millions of dollars of fees fraudulently charged Minor Tribe Members when Wells Fargo was supposed to be acting as a fiduciary trustee to protect the financial interests of those same minors. Instead Wells Fargo engaged in a decade-long fraudulent scheme using deficient and confusing account statements to conceal the collection of unauthorized fees to the minor beneficiaries. The Tribe also seeks to recover for its Minor Tribe Members at least one hundred million dollars in lost value to the trust as a result of the Trustee’s gross mismanagement of the trust assets by negligently employing imprudent investment strategies. It is evident that Wells Fargo focused its attention on concealing the collection of unauthorized fees instead of adopting a viable investment protocol. It appears as if, the Trustee established the trust, placed it in cruise-control, failed to properly advise the Tribe or its minor beneficiaries on investment strategies, and invested in a deficient portfolio in order to defraud the minor beneficiaries out of millions of dollars in fraudulent fees. The bank’s collection of fraudulent fees and the gross mismanagement of the trust is a breach of fiduciary duty to the beneficiaries and the proximate cause of the plaintiffs damages.

Fourth Circuit Rules against Western Sky et al.

Matthew L.M. Fletcher

Here is the opinion in Hayes v. Delbert Services Corp. (4th Cir.).

An excerpt:

We both respect and appreciate the support of Congress and the Supreme Court for an arbitration procedure that reduces the costs and delays of civil litigation. Our review of the record leads us to conclude, however, that the arbitration agreement in this case is unenforceable. The agreement purportedly fashions a system of alternative dispute resolution while simultaneously rendering that system all but impotent through a categorical rejection of the requirements of state and federal law. The FAA does not protect the sort of arbitration agreement that unambiguously forbids an arbitrator from even applying the applicable law. We therefore reverse the district court’s order compelling arbitration and remand for further proceedings.

Briefs here.

 

Coushatta Tribe Prevails in Appeal of Multi-Million Dollar Contract Dispute Judgment

Matthew L.M. Fletcher

Here is the opinion in Meyer & Assoc. v. Coushatta Tribe of Louisiana (La. Ct. App.):

14-1109opi

An excerpt:

Based on the foregoing, we reverse the grant of summary judgment to Meyer & Associates, Inc. on the issue of fraud and misrepresentation, finding that Meyer & Associates, Inc. failed to prove that no genuine issues of material fact remain on these issues; we reverse the grant of summary  judgment to Meyer & Associates, Inc. on the issue of breach of fiduciary duties because this issue was not properly before the trial court; and we reverse the grant of summary judgment to Meyer & Associates, Inc. on the issue of breach of contract, finding that genuine issues of material fact still remain on this issue. Based on these reversals, we vacate the March 3, 2014 judgment awarding Meyer & Associates, Inc. $10,603,250.00 in damages and $395,000.00 in reimbursable expenses; and vacate the June 23, 2014 judgment awarding Meyer & Associates, Inc. $5,585,573.00 in attorney fees and $57,662.34 in court costs; and remand the matter to the trial court for further proceedings. Costs of this appeal are assessed to Meyer & Associates, Inc.

Matter Involving Removal Jurisdiction under ICWA in Child Custody Dispute involving “Pembina Nation Little Shell Band of North America” Member

Matthew L.M. Fletcher

Here are the materials so far in Disanto v. Thomas (S.D. Ga.):

12-1 Motion to Remand

22 Opposition

23 Reply

32 Magistrate Report

 

Law Review Article on Principal Briefs in Supreme Court Cases (Inc. Adoptive Couple v. Baby Girl)

Kate Fort

Here.

Given the decision of NCFA to appeal the recent win in the Eastern District of Virginia to the Fourth Circuit this may be useful (if frustrating) reading.

As always, Adoptive Couple v. Baby Girl materials, including briefs, law review articles, and cases, are here.

ICRA Habeas Claim against Fort Peck Dismissed on Exhaustion Grounds

Matthew L.M. Fletcher

Here are the materials in Lambert v. Fort Peck Assiniboine & Sioux Tribes (D. Mont.):

5 Magistrate Report

6 DCT Order

Pamunkey Indian Tribe is First Federally Recognized Tribe in Virginia

Sarah M Donnelly

Final Order re Acknowledgment 62ibia122

Download press release here.

On January 28, 2016, the Pamunkey Indian Tribe’s July 2, 2015 Final Determination for Federal Acknowledgment (the “Final Determination”) became effective as a result of a final dismissal of a request for reconsideration entered by the Interior Board of Indian Appeals (the “IBIA”). In re Federal Acknowledgment of the Pamunkey Indian Tribe, 62 IBIA 122 (01/28/2016). The IBIA explained that Stand Up for California! (“Stand Up”), an organization that focuses on gambling issues affecting California, failed to show that it is an “interested party” to the Final Determination within the meaning of the Federal acknowledgment regulations, and therefore the IBIA concluded that Stand Up is not entitled to seek reconsideration of the Final Determination.