Thursday May 5, 2016
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I have no idea who is right in the dispute between the developer who built the Grand Canyon Skywalk, a popular glass bridge that extends from the canyon's edge on tribal land in western Arizona, or the tribe that signed the contract for the bridge with him.
Right now the developer, who invested $30 million to build the horseshoe-shaped bridge that gives visitors a view of the Colorado River 4,000 feet below, has had his contract severed by the tribe in a dispute.
The developer claims that the tribal court has acted in bad faith and he wants a change of venue to federal court. He claims that he is owed for years of unpaid management fees, but the tribal court has yet to rule on that claim or the tribe's claims that he failed to complete a visitor center.
When the developer went to arbitration in accordance with the contract that was signed, and was awarded $28 million in the arbiter's decision, the tribe refused to pay. Since then a tribal court has refused to accept arbitration of the claims, saying that tribal defendants are protected from lawsuits by sovereign immunity. But neither has the tribal court settled either of two issues in the dispute.
Today, the developer's attorneys will argue before the 9th Circuit U.S. Court of Appeals that the Hualapai tribal court system hasn't given him a fair shot and that he shouldn't have to fight his legal battles there. He will argue that he will be satisfied to have his claim seen by a federal court regardless of the outcome, but that the issue should be settled one way or another, not just set aside on a claim that a tribe cannot be sued
What do you think will happen? Better still, what do you think should happen?
I think the developer should black out the clear flooring with Tar until the dispute is setteled.
So called tribal immunity is claimed when they don't like the outcome. When they enter into open to the public Venue development agreements with non tribal entities, they will be the first ones going to a outside Superior/Federal Court if they think they have been wronged.
I'm inclined to agree with you. I have great respect for the rights of the tribes deeded to them in treaties, but in this case the tribal court has a duty to settle the issue, and it has not done that. It is simply stonewalling.
I believe that to be a serious error. If the federal courts take jurisdiction over this dispute, and I'm quite sure that is what will happen, then it will set a precedent that will reduce the authority of all tribal courts. If I were one of the other tribes I would be working very hard to get the Hualapai Tribal Court to act before that happens. And you are dead right about the tribes taking advantage of Superior/Federal courts when they feel they should do that, so failing to do it now is an error.
Mind you, I know nothing about the dispute, so I am not saying how it should be settled. I'm merely saying that if the tribal court feels it has jurisdiction then it should act on its beliefs, not stonewall.
If the bridge is on two different tribal properties, why didn't the contractor get an agreement from both of them before they built the bridge? Or when they weren't being paid why didn't they stop working on it? Seems the contractor didn't have a good contract.
all the i's weren't dotted and the t's crossed.
Never deal with a tribe without a really good attorney. They have the power.
Before someone comes back with a nasty remark, two of my best friends are Indian.
"If the bridge is on two different tribal properties, why didn't the contractor get an agreement from both of them before they built the bridge?"
I don't think it is on two tribal properties. Just one.
As to the rest of your questions, Pat, I have absolutely no knowledge of the actual issues. They are not covered in the articles. The only thing covered is tribal sovereignty and its relationship to the non-tribal courts.
I can see that this is one that I'll have to monitor all the time to get the final result.
Some of my best friends are Indian too. I have one in Calcutta and others spread around the place. Got some Australian friends too. :-)
I misunderstood what you posted. I thought the bridge was built on Indian property at the top but was hanging over the other tribe at the bottom of the Grand Canyon.
Didn't know you could own air space but thought maybe that was something new or very old and two tribes were claiming ownership.
Probably none of that made sense.
"Didn't know you could own air space..."
That is one of the most complex questions on the planet. It has never been entirely resolved. The big question is how high up do you own? Ten feet? A hundred? A thousand? A mile? Ten? A hundred?
Suppose, for example, the Russians decide to fly over the United States. Are they breaking some law?
This dispute started almost from day one. I think it is a good example of two parties signing the same document but with different expectations as to the outcome of the agreement.
It costs quite a bit to go out on the skywalk. I can't remember the exact amount -- one of those things you read about, raise your eyebrows and say "Costs too much, I will never do that." I have also read that the view is awesome.
Maybe they haven't attracted as many tourists as anticipated because of the cost which led to some things not getting done?>??
Like you, Tom, I have no idea of how this will turn out. Everyone is pointing at the other guy as the "bad guy." Mirror "bad guy pointing" seems to really be in fashion now. If I hear one more political attack, ---- well I hope I don't become crazier than at present.
Frankly, it is not something I would care to do, but that doesn't mean that others shouldn't, and it is an interesting idea. I feel the company is right. The courts are the place to settle this, and so that means it has got to get into a court that will deal with it. If the tribal court is not doing that, then some higher court has to take over .
Well, folks. This case is settled. And every one of you who thought the developer should win was right. The court awarded a $28.5 million judgment in favor of the Las Vegas developer.
The ruling by U.S. District Judge David Campbell rejected arguments by the Hualapai Tribe that an arbitration award wasn't enforceable. He also rejected claims that arbitration was unnecessary because the tribe had already enforced eminent domain over the contract, taking sole control of the Skywalk. The judge said that one of the arguments made by the tribe was "nonsensical," and called another "odd." He added that as far as public domain condemnation was concerned, which requires that the taking of private property serve a public purpose, the tribe failed to identify what public good would be served by taking the property.
The lawyer for the developer said the tribe had it all wrong. "Their idea is, 'We can do what we want, to anyone we want, anytime we want because we're a sovereign state,'" he said.
A spokesman for the tribe, Dave Cieslak, said it is reviewing its options. He said the tribe would pay Jin the fair market value for the Skywalk to "protect the rights of the tribe and end this painful dispute." Previously, it was argued that since tribal members never voted to waive liabilities in excess of $250,000 arbitration in excess of that amount could not be enforced, and that the arbitrator exceeded his powers because only a federal court could order arbitration.
The judge said the agreement makes no mention of a $250,000 limit and allows arbitration for any controversy, claim or dispute when either party sends such a notice to the other. He found that the tribe clearly waived its sovereign immunity with respect to financial damages awarded in any arbitration that could be enforced in federal court.
"No other reading of the agreement is plausible," the judge said.
The skywalk may be beautiful, but there is not enough money in the world to get me to walk out on it. No I am not afraid of heights. I would like to see it, but from a little distance.
I like to keep my feet on solid ground that God created.
I have flown in airplanes but only because of emergencies.
That's interesting, Pat.
I read something about that. Maybe someone else did too and remembers it. It was something about putting a baby on a glass topped table. There was something odd that happened.
Anyone remember that?
In any event, this case is going to have a big effect on tribal happenings I imagine. I think some of people on the reservations may have made a fundamental mistake. It's a lot like the situation with the states, where the states have certain powers reserved to them, but are forbidden to mess around in any way with contracts. Contracts are a fundamental of civilization and the Constitution recognizes that. If two people make a legal agreement the law has to uphold that agreement; otherwise it becomes impossible for civiization to work. So when the tribe signed that agreement it was stuck with abiding by it.
To put it in simple terms, contracts are an extension of natural law. The cause of almost all wars is when some nation tries to ignore natural law. Then the other nation goes to war, and usually all the other nations around it join in because if natural law goes there's nothing left except chaos.
Sovereignty means being able to do whatever you want inside your own borders, but when you reach outside those borders and make an agreement with someone out there you are no longer within your own borders. It's a simple concept. It just takes some thought to see how things actually work.
It's not really much different than being able to do what you want with your own property--until what you are doing affects someone else's property.
By the way, there is a second, similar case going through the same court at the moment.
Remembered what it was about a glass topped table.
The test was to see if babies are born with a fear of heights. If the table is covered with a cloth, the baby with crawl around on it until it comes to the edge and with then stop.
If half the cloth is removed, the baby with crawl around it until it comes to the clear part and it will stop, not because there isn't anything there to support it (which there is), but because it can see the depth below, and so fears the height.
It seems to show that we are born with an inherent fear of heights and so would be very uncomfortable ona glass bridge. That's what I first thought when I heard of the thing. I thought it would feel uncomfortable and people would go there only once--if they went at all.
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