Federal Court Complaint in Turtle Mountain Reservation Leasing Dispute

Here is the complaint in Grenier v. Delorme (D.N.D.):

1 Complaint + Exhibits

An excerpt:

On or about March 18, 2010, Plaintiffs and Defendant entered into a ten – year Lease of Real Estate (“Lease”) for Defendant’s land located at tract number 324-5065 and described as E/2NE/4, of Section 3, Township 161 N., Range 71 W., Rolette County, North Dakota. This land is not located on the Turtle Mountain Reservation, but is trust land. A  copy of the Lease is attached hereto as Exhibit A. Prior to entering into the Lease, Plaintiffs had farmed the land subject to the Lease for over thirty years.

 

N. Dakota SCT Rules in Favor of Tribal Jurisdiction in Utility Regulation Dispute

Here is the opinion in North Central Electrical Coop., Inc. v. North Dakota Public Service Commission.

An excerpt:

North Central Electric Cooperative appeals from a district court judgment affirming a Public Service Commission order dismissing North Central’s complaint against Otter Tail Power Company after the Commission decided it did not have regulatory authority over Otter Tail’s extension of electric service to a facility owned by the Turtle Mountain Band of Chippewa Indians on tribal trust land within the Turtle Mountain Indian Reservation. North Central argues (1) the Commission’s decision is not in accordance with the law because the Commission has jurisdiction under North Dakota law and (2) the Commission’s findings are not supported by a preponderance of the evidence and do not sufficiently address North Central’s evidence. We affirm, concluding the Commission did not err in deciding it lacked authority to regulate the Tribe’s decision to have Otter Tail provide electric service to a tribal-owned facility on tribal-owned land within the reservation.

Briefs are here:

North Central Opening Brief

Turtle Mountain Brief

North Central Reply

N. Dakota SCT Briefs in State Utility Jurisdiction Case Involving Turtle Mountain

Here are the briefs in North Dakota Electric Cooperative Inc. v. North Dakota Public Service Commission:

North Central Elec Coop Brief

N.D. Public Service Commission Brief

Otter Tail Power Co Brief

Turtle Mountain Brief

Uniband v. Commissioner of Internal Revenue Opinion

Here.

P is a Delaware corporation, wholly owned by T, an Indian tribe. For the years at issue P attempted to file consolidated returns with C, another corporation wholly owned by T. P contends that T is the common parent corporation of P and C and that together they constitute an affiliated group eligible to file a consolidated return. On the returns filed, P did not claim Indian employment credits under I.R.C. sec. 45A even though P was entitled to them; instead P deducted the entirety of its employee expenses. R determined that the consolidated returns that P joined in filing were invalid and that P was required to claim a credit under I.R.C. sec. 45A and reduce its wage deduction by the entire credit amount (without regard to credit limitations for particular tax years). P now contends that it is not subject to corporate income tax because it is an integral part of T, which because it is an Indian tribe is exempt from income tax.

Held: P, as a State-chartered corporation, is a separate and distinct entity from T and is not exempt from the corporate income tax.
Held, further, the consolidated returns filed for the years in issue were invalid because T, as an Indian tribe, was not eligible to join in the filing of a consolidated return, and P and C alone did not constitute an affiliated group.
Held, further, the Indian employment credits under I.R.C. sec. 45A are not elective; and as a result, P’s employee expense deductions for the years at issue must be reduced by the amount of the credit as determined under I.R.C. sec. 45A without regard to limitations on the allowable amount of the credit.Uni

Agamenv LLC v. Lavedure

North Dakota federal district court refrains from issuing a TRO in a dispute between Turtle Mountain Tribal Council, Tribal Court, and gaming company.

Order

Complaint-FDC

Brief

Complaint-tribal court

Ex Parte TRO – tribal court

Motion to Withdraw TRO-tribal court

 

Federal Court Declines to Certify Class in Truth-In-Lending/Usury Claims against Auto Dealers Near Turtle Mountain

Here are selected materials in Delorme v. Autos, Inc. (D. N.D.):

DCT Order Denying Motion to Certify Class

Delorme Motion for Summary Judgment — Fed Truth in Lending [includes many of the sales documents]

Delorme Motion for Summary Judgment — Usery

The most remarkable materials are the tribal court complaint and the settlement agreement with Autos, Inc. — executed the day after the filing of the complaint — that amounts to a full capitulation on the part of the auto dealer. Bonnie Delorme purchased a car at 25% interest after a $3000 down payment, never defaulted on the loan, and had her car repossessed anyway.

Delorme v Autos Inc Tribal Court Complaint

Delorme — Autos Settlement

Fracking, Tribal Sovereignty, the Montana Test, and the Turtle Mountain Band

The Turtle Mountain Band of Chippewa Indians recently passed a resolution banning fracking on reservation lands. Fracking is incredibly dangerous to the environment (and if Elizabeth Kolbert is writing about it, you can be sure it’s worse than that).

So imagine a scenario where a tribe (like Turtle Mountain) bans fracking, but an oil extraction company purchases fee land within the reservation boundaries and begins fracking. Is this going to pass the Montana test, assuming no written consent under Montana 1? So does it meet the political integrity, economic security, and health/welfare subjectivity of Montana 2? It seems like it must, if this news coverage is to be believed:

Exploration companies are injecting large volumes of water, sand and chemicals into rock formations up to a mile beneath the Blackfeet Indian Reservation in attempts to loosen embedded oil — sometimes using more than a million gallons of fluid per well.

State, tribal and federal regulators of oil development say there has never been an instance of the practice — called hydraulic fracturing — contaminating groundwater in Montana.

Yet Jack Gladstone, an enrolled member of the Blackfeet Tribe and a well-known singer and songwriter, is worried that “fracking” could taint the tribe’s “clean, fresh, cold water.”

He supports more disclosure of the chemicals used in the frack jobs, which he described as an “uncontrolled experiment.”

“And we will live with the consequences of our actions,” Gladstone said.

Potential impacts to drinking water associated with hydraulic fracturing are coming under increased scrutiny nationwide as the federal Environmental Protection Agency begins a study at 350 oil and gas wells in Louisiana, Pennsylvania, North Dakota, Texas and Colorado.

So back to Montana 2. Assuming the above conditions, and a court concludes that Montana 2 is met, and tribal jurisdiction over these hypothetical nonmembers is present, what are the limitations on tribal jurisdiction? Could a tribe simply enjoin the operation (a regulatory/judicial taking)? Could a tribe exercise the power of eminent domain? Seems like these are questions tribes should be asking.

Jerilyn DeCoteau on Opting Out of the Cobell Settlement

Here.

An excerpt:

I feel cheated because my grandmother was cheated and her heirs were cheated and cowed by the very lack of information, by the lack of answers when questions were asked, cowed into believing we had little or no right to ask about our interest in her allotment. This is one of reasons I opted out: I still don’t know what resources are on the allotments (there are 3) that I have interests in. To say on quarterly statement, which have miraculously appeared in recent years, that the land is leased for “business purpose” or “agriculture” tells me very little. The point is, these leased lands are the source of the trust accounts that are the subject of Cobell and I still don’t know enough about the value of my interests to make an informed decision about whether to agree to settle.

I do know that I continue to feel cheated. My family has never benefited in any meaningful way from our allotments. Now some 110 years later, I have the offer of another paltry piece of paper with a few small numbers typed on it. What am I supposed to do with $500? What would you do? What would you do if you didn’t feel so powerless and like you deserved at least something, even if it is this silly amount called a “settlement”? My daughter pointed out the plain reality, “There are poor people who would gladly take $500, a month’s worth of fuel oil [in a cold North Dakota winter], or a couple of week’s groceries in exchange for a piece of land they will never see and have no money to ever see.”

The fact is, the settlement will make no real difference in the lives of most account holders and can hardly be considered justice in any real sense of the word. It is just a way to put an ugly chapter in American history to rest for the perpetrators, while conveniently ignoring that it is largely a meaningless act for most Indians.

It is not a meaningless exercise, however, for those few who stand to reap large benefits despite the very fact that the suit failed in it essential mission: most trust account holders still don’t know any more about how our lands were mismanaged. Even after 12 years of litigation and hundreds of millions of dollars spent, we still don’t know. But when the few get their big money, the rest are expected to walk away happy with the equivalent of a peanut.

I am not complaining about the named plaintiffs or lawyers in this case. They undertook a noble and heroic mission, though it proved impossible. They went forward, I believe in good faith, with the vision and strength of the best warriors of any Indian nation. They did what they could, but like Red Bear, like Chief Joseph, like Sitting Bull, like Geronimo, like Black Hawk, like Red Cloud, like Louis Riel, like Ira Hayes, like so many good warriors (men and women) trying to make a living and a life on our reservations and from our allotments, it wasn’t enough, it is not enough. They could not turn the tide of history or turn aside the bands of thieves wanting to hand Indians trinkets for their eternal treasures. Still, I honor them, although I can’t help begrudge the real money they will get. And I can’t help but wonder if the large amounts didn’t entice them to “opt in” for all of us.

But again, that is not why I opted out. With the Cobell settlement, I feel like I am standing between “eternity” and a hard place. Some things you just have to hold on to no matter what. Five hundred dollars, on the other hand, is meant to be let go of. Like my grandfather waiting for his allotment, I will likely die waiting to know the truth, but better to wait than to give up on what is right.

Jerilyn Monette DeCoteau is a member of the Turtle Mountain Chippewa. She is on hiatus in her 27 year practice of Indian law. She has three children, six grandchildren and two great grandchildren. She lives in Eldorado Springs, Colorado with her husband, Tod Smith, and son.

Dispute between Turtle Mtn. Band Private Allottee and Utility

Here are the materials in Houle v. Central Power Elec. Coop. (D. N.D.), so far:

Central Power Motion to Dismiss

Houle Resistance to Motion to Dismiss

Central Power Reply

R&R in Houle v Central Power

Ford Motor Credit v. Poitra — Fed. Court Refuses to Dismiss Tribal Court Jurisdiction Case

Here are the materials:

DCT Order Denying Motions

Ford Motor Motion for Summary J

Poitra Response and Motion to Dismiss

Ford Motor Reply