Cheyenne River Sioux Tribal Court

South Dakota Federal Court Holds Parental Kidnapping Prevention Act Does Not Apply to Indian Tribes

Matthew L.M. Fletcher

Here are the materials in Nygaard v. Taylor (D.S.D.):

1 Habeas Petition.pdfDownload
42 Tribal Court Motion to Dismiss.pdfDownload
48 Nygaard Response.pdfDownload
54 Reply.pdfDownload
69 DCT Order Denying Motion to Dismiss.pdfDownload
79 Nygaard Motion for Summary J.pdfDownload
83 Tribal Court Motion for Summary J.pdfDownload
91 State Motion to Dismiss.pdfDownload
93 State Opposition to Tribal Court Motion.pdfDownload
95 Tribal Court Response.pdfDownload
97 Nygaard Reply.pdfDownload
101 Nygaard Response to State Motion.pdfDownload
102 State Reply.pdfDownload
103 DCT Order.pdfDownload

SCOTUS Denies Cert in CashCall v. Inetianbor

Matthew L.M. Fletcher

Here is the order list.

We posted the cert stage briefs here.

Lower court materials here.

District court materials here.

Suit against Western Sky/Butch Webb to Proceed

Matthew L.M. Fletcher

Here are the materials in Scherr v. Western Sky Financial (N.D. Ill.):

40-1 Western Sky Motion to Dismiss

47 Response

48 Western Sky Reply

51 DCT Order

CashCall v. Inetianbor Cert Stage Briefs

Matthew L.M. Fletcher3 Comments

Here:

CashCall Cert Petition

Inetianbor Cert Opp Brief

Questions presented:

I. Whether there is a non-textual “integrality exception” to the mandatory requirement in the Federal Arbitration Act (“FAA”) that a substitute arbitrator “shall” be appointed by the court whenever the parties’ chosen arbitrator is unavailable for “any … reason”? 9 U.S.C. § 5.

II. Whether a court may void an entire arbitration clause – and force the parties to litigate in court – despite the fact that the parties included a severance provision that, if applied, would render the arbitration clause enforceable?

Lower court materials here.

District court materials here.

Eleventh Circuit Affirms Inetianbor v. Cashcall

Matthew L.M. Fletcher2 Comments

Here is the opinion. An excerpt:

This appeal arises out of a disagreement between Abraham Inetianbor, who borrowed money at a high interest rate, and CashCall, Inc., the servicer of Mr. Inetianbor’s loan. Mr. Inetianbor filed a lawsuit against CashCall, which then sought to compel arbitration based on the loan agreement. The District Court ultimately refused to compel arbitration because the arbitration agreement in the loan document contained a forum selection clause that was integral to the agreement, and the specified forum was not available to arbitrate the dispute. CashCall appeals that decision here. After careful review, and with the benefit of oral argument, we affirm.

Briefs here:

Opening Brief

Answer Brief

Reply Brief

Lower court materials here.

 

 

En Banc Petition in Jackson v. Payday Financial LLC

Matthew L.M. Fletcher

Here:

En banc Petition

Clarkson Amicus Brief

Panel materials here.

Seventh Circuit Rules against Western Sky in Jackson v. Payday Financial LLC — A Warning to Indian Country

Matthew L.M. Fletcher5 Comments

Here is the opinion:

CA7 Opinion

Based on these findings, we now conclude that the Plaintiffs’ action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. We also cannot accept the Loan Entities’ alternative argument for upholding the district court’s dismissal: that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation. As the Supreme Court has explained, most recently in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. The Loan Entities have not established a colorable claim of tribal jurisdiction, and, therefore, exhaustion in tribal courts is not required. Accordingly, we cannot uphold the district court’s dismissal on this alternative basis.

Primary briefs here. Supplemental briefs here.

As should be expected by this time, payday lending in Indian country is creating bad law for tribal interests. This case involved a privately owned payday lending operation. Tribally-owned operations will be scrambling to distinguish themselves from this case. Particularly troublesome is the holding and (hopefully) dicta from the opinion that suggests tribal courts have no jurisdiction involving off-reservation lending operations, even though the operation is based in Indian country and even though the lending instrument includes a forum selection clause naming a tribal forum.

My initial recommendations to tribal leaders and counsel — shut down on-reservation-based payday lending operations operated privately immediately. My second recommendation is to ensure that tribal regulations of tribally owned payday lending operations are independent and robust. In other words, tribes must be able to withstand the kind of searching inquiry into their regulatory scheme that the federal court did in this case. Can tribal sovereign lenders say that?

Opening Eleventh Circuit Brief in Inetianbor v. Cashcall

Matthew L.M. Fletcher2 Comments

Here:

Cashcall Opening Brief

Lower court materials here.