tribal power of eminent domain

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.

WSJ on the Grand Canyon Controversy

March 24, 2012Matthew L.M. Fletcher1 Comment

Here. Or just go to Google news and enter “hualapai grand canyon”.

An excerpt:

The legal battle is testing the limits of business partnerships between tribes and non-Indians and is pitting tribal government leaders against one another. At stake are future profits of the lucrative Skywalk and at least $10 million in profits that the bridge has accumulated—now locked in an escrow account while the tribe fights with Mr. Jin.

“Our business is being destroyed by a handful of self-interested [tribal] government officials who are stealing our business and trampling our rights” said Troy Eid, a lawyer for Mr. Jin and former U.S. attorney for Colorado.

The tribe argues that it is Mr. Jin who “makes a promise, breaks it, then changes his story,” said Paul Charlton, the tribe’s lawyer and former U.S. attorney in Arizona.

Public Radio Coverage of Grand Canyon Skywalk Controversy

March 19, 2012March 19, 2012Matthew L.M. Fletcher

Here, h/t Pechanga.

An excerpt:

The Hualapai council members say the unfinished site is an embarrassment to the tribe, which approved the project despite some internal objections about building on land roughly 30 miles from a place central to the Hualapai creation story. Traditional tribal belief places man’s origin on Hualapai lands.

“I believe the canyon is a sacred place. The Hualapai look at is as a church. Why take trash and throw it in the church. I voted against it,” said Philip Bravo, a former council member. “What does the tribe have out there? A half-finished building.”

Angry at the developer, the tribe passed an ordinance last year creating a legal path to effectively cancel the developer’s contract through the sovereign right of eminent domain.

The tribe set compensation for the seizure at $11.4 million, a sum they said represents the fair value of a project that the Las Vegas-based developer says is worth over $100 million.

“They took everything. And then the tribal court issued an order that we were trespassers if we were even there. You do understand this is like Hugo Chavez’s Venezuela, don’t you?” said Troy Eid, a lawyer for the Grand Canyon Skywalk Development Corporation, which built the skywalk.

There is little doubt that tribes can legally seize property for the public good, much like a state or the federal government. But by seizing a non-tangible asset of a non-Indian company as a way to escape a contentious business deal, the tribe may have stepped into untested waters.

“I think on first glance the tribe is exercising a power that they have. Whether they are exercising it wisely is a different question,” said Addie Rolnick, an expert in Indian law at the University of Nevada at Las Vegas.