November 14, 2009
Here is the opinion in Oneida Indian Nation of N.Y. v. Hunt Construction Group, reversing a trial court order that accepted jurisdiction over four counterclaims against the Nation — Oneida Indian Nation v. Hunt Constr Group
An excerpt:
Plaintiff, the owner of the Turning Stone Casino & Resort, commenced this action seeking damages resulting from the alleged breach by defendant of its construction contract with plaintiff. Plaintiff moved to dismiss the second through fifth counterclaims on the ground that it had waived sovereign immunity only with respect to counterclaims seeking to enforce the terms of the contract and thus that Supreme Court lacked subject matter jurisdiction over the second through fifth counterclaims. We agree with plaintiff that the court erred in denying those parts of the motion seeking to dismiss the second counterclaim to the extent it alleges the breach of implied warranties; the fourth counterclaim, for quantum meruit and unjust enrichment; and the fifth counterclaim, for an account stated. We therefore modify the order accordingly.
November 13, 2009
From the NYTs:
When Christopher Columbus first came to America, there were no natives on horseback to greet him. That is not only because he landed on an island in the Bahamas. It’s also because there were no horses in the New World. They originated here 40 million years ago and spread to other parts of the globe, but by 1492 horses had been extinct in the Western Hemisphere for 10,000 years. On his second trans-Atlantic voyage, in 1493, Columbus brought along 25 horses and reintroduced the species to America. Many more were brought later by French, English and Dutch colonizers.
This is just one remarkable piece of information to be gleaned from “A Song for the Horse Nation,” an exhibition of 98 artifacts relating to native horse cultures, opening on Saturday at the Smithsonian National Museum of the American Indian in Lower Manhattan. Including saddles, riding blankets, clothing and beaded bags adorned with equine imagery and much more, the exhibition brings to light a fascinating and ultimately sad chapter in American history.
Organized by Emil Her Many Horses, a curator at the museum, the show presents most of the artifacts, all from the Smithsonian’s collection, that were pictured in a small paperback of the same title published in 2006 (by the museum and Fulcrum Publishing). In his introduction the historian Herman J. Viola, a curator emeritus of the Smithsonian’s National Museum of Natural History, tells of the rise and fall of American Indian horse culture, which thrived for only about 100 years.
As Mr. Viola explains, scholars now believe that horses began to proliferate among Indians in the West after Spaniards in Sante Fe fled a Pueblo uprising in 1680, leaving behind hundreds of horses and other animals. At first the Indians were frightened and mystified by the large and unfamiliar creatures. They called it names like Big Dog and Big Elk. But by the time of the French and Indian War (1754-63), Plains Indians were among the world’s best horsemen. A century or so later, their horse culture was dead, a victim, as Mr. Viola put it, of “too many white people and too few buffalo.”
Keep reading →
November 13, 2009
In Chippewa v. Shoshone-Bannock Tribes Fort Hall Indian Reservation (D. Idaho), the court held that it has no jurisdiction to issue a writ of mandamus to a tribal court — Chippewa DCT Order
An excerpt:
Lara, Wheeler, and Enas clearly illustrate that tribal courts and courts of the United States each have separate jurisdiction to prosecute offenses against their respective sovereigns. A federal court does not have jurisdiction over a tribal court prosecution. Furthermore, a tribal court is not an inferior court to the federal court. Therefore, the Court cannot issue a writ of mandamus directing the Tribal Court to either act on Chippewa’s motions or run three Tribal sentences concurrently with the now expired federal sentence.
Although the Court has not located any cases specifically holding that a federal court cannot issue a writ of mandamus to a Tribal Court, it is clear by analogy to cases addressing the issue in the context of state courts that it cannot. See, e.g., Craigo v. Hey, 624 F.Supp. 414, 416 (S.D.W.Va. 1985) (declining to issue a writ of mandamus finding that the Court had no original jurisdiction over a matter filed in state court and because it did not sit “as an appellate or supervisory tribunal” for the state court). See also Harris v. Department of Corrections, 426 F.Supp. 350 (D.C.Okl. 1977) (same; federal district courts do not sit to review actions taken in state court and do not have jurisdiction to compel a state or its officers to perform any duty owned to a plaintiff under state law). Accordingly, Chippewa’s Petition shall be dismissed.
November 12, 2009
From dBusinessNews (via Pechanga):
In a special report released today (Nov 2009 Fitch Report), Fitch Ratings says there are two important issues that will determine the future for the Native American gaming industry’s expansion: whether tribes will have access to the debt capital needed to finance growth, and federal government policy decisions regarding approvals for future Native American gaming developments on off-reservation lands. Investor sentiment on the Native American gaming sector has soured in this economic downturn, as poor trends in regional gaming markets pressure credit profiles, three tribes defaulted on bond payments in 2009, and the Mashantucket Pequot Tribal Nation recently announced a forbearance agreement with its senior lenders after the Tribal Chairman made comments highlighting investors’ concerns about the unique legal issues involved in lending to a tribal government.
Fitch believes many investors are likely to take a ‘wait-and-see’ approach with respect to these ongoing debt workout and restructuring efforts before committing significant additional funds to the sector, making it unlikely a tribe would be successful in arranging debt financing for a large-scale greenfield casino development at the present time (for additional information on this topic see Fitch research ‘Managing Through Distress: Considerations for Investors in Distressed Native American Gaming Credits’, dated May 11, 2009). However, over the longer term, the federal government’s policy stance with respect to approvals for off-reservation gaming projects will be the most important factor shaping the future growth path of the Native American gaming industry.
‘Right now the Native American gaming sector is feeling the effects of poor gaming operating trends and unfavorable credit market conditions, but those issues are likely to be less limiting down the road assuming an economic recovery and improved investor sentiment on the sector,’ said Megan Neuburger, Director at Fitch. ‘Actions taken by the federal government under the Bush Administration in 2008 were clearly an effort to curb off-reservation gaming expansion. Department of Interior officials have recently made public comments that they are in the process of reviewing their policy on off-reservation gaming approvals, and we’re closely following the developments to assess their impact on the industry.’
According to the report, since the promulgation of the Indian Gaming Regulatory Act (IGRA) set the framework for the Native American gaming industry in 1988, there has been significant political controversy. Proponents of expansion tout the benefits of economic development, while opponents decry ‘reservation shopping’ and the ills associated with the expansion of casino gaming. While it has never been easy for a tribe to obtain the regulatory approvals necessary for gaming on off-reservation land, recent developments have made the likelihood of a successful outcome even more remote. These developments include guidance and a rule published by the U.S. Department of the Interior in 2008, as well as the 2009 U.S. Supreme Court ruling in Carcieri v. Salazar.
In the special report, Fitch explains these developments, the associated impact on the approval process, and the actions the federal government may take under the Obama Administration with respect to these issues, as well as providing a summary of the implications for the credit outlook for the sector. ‘Native American Gaming Insights: Off-Reservation Gaming Approvals: How Will the Feds Play Their Hand?’ is now available on Fitch’s web site at ‘www.fitchratings.com’.
Additional information is available at ‘www.fitchratings.com’.
