Godfrey & Kahn Sued by Investors over Lac du Flambeau Bond Deal Done In by Immunity

We’ll post the complaint, filed in state court, once we get it (if we get it).

Meanwhile, here’s the news coverage.

Seventh Circuit Declines En Banc Review Petition Files in Wells Fargo v. Lake of the Torches EDC

Here are the materials:

Wells Fargo Petition for En Banc Rehearing

CA7 Order

Panel materials are here.

Seventh Circuit Affirms Wells Fargo v. Lake of the Woods; Remands to Allow Wells Fargo to Amend Complaint for Other Relief

Here is today’s opinion. An excerpt:

We conclude that the Indenture constitutes a management contract under IGRA and that, as a condition of its validity, it should have been submitted to the Chairman of the NIGC for approval prior to its implementation. The parties’ failure to secure such approval renders the Indenture void in its entirety and thus invalidate s the Corporation’s waiver of sovereign immunity. The district court therefore correctly determined that it was without jurisdiction with respect to Wells Fargo’s motion for the appointment of a receiver.

We further conclude that the district court should have permitted Wells Fargo leave to file an amended complaint to the extent that it presented claims for legal and equitable relief in connection with the bond transaction on its own behalf and on behalf of the bondholder. Upon the filing of such a complaint, the district court should address the issue of whether, now that the Indenture has been determined to be void, Wells Fargo has standing to litigate claims on behalf of the bondholder. The court also must determine whether the collateral documents, when read separately or together, waive the sovereign immunity of the Corporation with respect to any such claims. If such a waiver is found, the court may proceed to determine the merits of those claims.

Lower courts briefing.

Turtle Talk Poll: Will the Seventh Circuit Affirm or Reverse Wells Fargo?

Given the Sac and Fox case we just posted, and a few other cases floating around that have relied on the district court’s decision in the Wells Fargo v. Lake of the Torches case, the Seventh Circuit’s decision will have great importance. Interestingly, that decision is long-delayed. What will the Seventh Circuit do?

Top Ten Indian Law Cases of 2010 on Turtle Talk

A slightly different list than our first post, this post looks at the top cases in Indian law based on hits to the post on Turtle Talk.  These can include posts about preliminary matters in the case.  Cases will only make one appearance on the list at their highest spot (adding the total number of hits from all posts on a case would not change the top ten list).  We made a note when materials from a case made it into the top 20 most downloaded documents of the year.

1. Wells Fargo v. Lake of Torches EDC, post with materials on the case (the final decision post would be number 6 on this list; the final opinion is the 10th most downloaded document of the year).

2. Red Earth LLC v. United States, preliminary injunction in PACT Act case (additional materials in this case would be number 10 on this list).

3. United States v. Fred Paquin, indictment of former Sault Tribe chief of police (the indictment is the 8th most downloaded document of the year).

4. Miranda v. Nielson, federal court rejects tribal stacked sentencing.

5. Saginaw Chippewa Tribe v. Granholm, boundary settlement materials.

6. United States v. Cavanaugh, federal district court dismissal of indictment as previous uncounseled convictions in tribal court could not be used as evidence of “habitual offender” status.

7. Menominee Tribal Enterprises v. Solis, OSHA applies to tribal enterprise (the decision in this case is the 20th most downloaded document for the year).

8. Pacheco v. Massengill, federal district court grants ICRA habeas petition.

9. Attorney’s Process and Investigation Services v. Sac and Fox Tribe, federal court upholds tribal jurisdiction over nonmember.

10. United States v. Tohono O’odham Nation, Supreme Court grants cert.

Top Ten Indian Law Stories of 2010

Based on numbers of hits, and a nice review of the year, here is the First Top Ten Indian Law Stories of the Year:

  1. Wells Fargo v. Lake of the Torches EDC. The effort by the bank to force Lac du Flambeau to pay its obligations had been shut down by the conclusion of a federal court that the trust indenture was a gaming management contract. A Seventh Circuit appeal was briefed and argued, and is pending. Posts are here and here.
  2. Tribal Law and Order Act. Congress finally passed a piece of legislation geared at dealing with a national problem — the incredible rise of violent crime in Indian Country, and most especially violence against Indian women. Top posts are here and here.
  3. Challenges to the PACT Act. Congress’s effort to destroy what remains of Indian country tobacco sales over the internet was initially enjoined, but that injunction was lifted. The cases are now pending in the Second Circuit. Top posts here and here.
  4. Gun Lake Band Casino news. The Gun Lake Band finally began construction on its casino after more than a decade of legal challenges, only to face a difficult financing market. Posts are here and here.
  5. Bay Mills Indian Community opens casino in Vanderbilt, MI on fee land. Would probably be number 1 or 2 if it happened earlier in the year. Posts here and here.
  6. Chief Justice Roberts dissent in North Carolina v. South Carolina. Mountain out of a molehill? Maybe, but still…. Post here.
  7. Bloomberg report on Foxwoods default. Old news, but continuing to be important. Post here.
  8. Elena Kagan Appointment to Supreme Court. Plenty of speculation here on her (lack of an) Indian law record. Top posts here and here.
  9. Supreme Court 2010 October Term Preview. Here.
  10. Possible Keith Harper Appointment to Tenth Circuit. Here.

Honorable mentions include the indictment of former Sault Ste. Marie tribal official Fred Paquin; Walter Echohawk’s new book; federal court challenges to consecutive sentences by tribal courts; the Saginaw Chippewa reservation boundaries settlement, and the passing of Phil Frickey.

Update (2:30 PM): Obviously, as Alex Skibine noted in the comments section, the Cobell settlement was a huge story for the year, while probably happening too late in the year to generate enough hits to make the top ten list. Same goes for President Obama’s announcement of support for the UN DRIP.

Oral Argument Audio in Wells Fargo v. Lake of the Torches


The appellate panel: Joel M. Flaum, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Terence T. Evans, Circuit Judge.

Case argued by Mr. James A. Klenk for Appellant Wells Fargo Bank, National Association and Monica M. Riederer for Appellee Lake of the Torches Economic Development Corporation.

Wells Fargo v. Lake of the Torches Briefing Complete

Here are the briefs:


Wells Fargo Opening Brief

LDF Corrected Brief

LDF Corrected Appendix

Wells Fargo Reply Brief


Natl Federation of Municipal Analysts Amicus Brief

NIGA Amicus Brief

Lower court materials here and here and here.

Argument set for Wednesday, October 20, 2010.

Corrected LDF Brief in Wells Fargo Case: Response to Court Order to Brief Jurisdictional Issue

Here: LDF Corrected Brief, and LDF Corrected Addendum.

Apparently, the jurisdictional issue is whether the court has jurisdiction under the diversity statute over the Lake of the Torches EDC. LDF writes:

This Court should follow the Ninth Circuit and hold that “a corporation organized under tribal law should be analyzed for diversity jurisdiction purposes as if it were a state or federal corporation,” while still enjoying the same sovereign immunity as the tribe. Cook, 548 F.3d at 723, 726. This approach follows the plain language of the diversity statute, which provides that a corporation is a citizen of “the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(2). For the Corporation, that is Wisconsin. The Eighth Circuit’s test, which looks to whether a tribal entity operates as “an arm of the tribe and not as a mere business,” ignores the language of the statute and focuses on the function of a tribal entity, finding that where it is governmental, as is the Corporation’s, Doc. 31 at 2-3, the entity is treated like a tribe and is not considered a citizen of any state. Auto-Owners Ins. Co. v. Tribal Court of the Spirit Lake Indian Reservation, 495 F.3d 1017, 1021 (8th Cir. 2007). Under the more practical Ninth Circuit test, which this Court appears to have used, see supra at n.6, the parties are diverse and subject-matter jurisdiction exists.

The court also set October 20 as the oral argument date.