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![handle is hein.nccusl/nccpubtsta3952 and id is 1 raw text is:
GONZAGA
SCHOOL OF LAW
MEMORANDUM
To: Drafting Committee for Amendments to the Model Tribal Secured Transactions Act
From: Stephen L. Sepinuck
Date: August 25, 2015
Re: Choice of Law Issues
Section 9-301 contains the general choice-of-law rule for the MTSTA. It differs from the
Official Text of the UCC in some significant ways. Specifically, the Official Text of the UCC
provides that, in general, perfection, the effect of perfection, and the priority of a security interest in
collateral is governed by the law of the jurisdiction where the debtor is located. In contrast, MTSTA
§ 9-301(1) provides that perfection, the effect of perfection, and the priority of a security interest in
collateral are governed by the MTSTA (as enacted by a Tribe or Nation):
(A) if the security interest is created pursuant to this [act];
(B) from the time that the debtor becomes subject to the jurisdiction of this [Tribe]
[Nation] (Section 9-316(d) and (e)); or
(C) from the time that the collateral is transferred to a person that thereby becomes a
debtor and is subject to the jurisdiction of this [Tribe] [Nation].
There a several potential problems created by this language.
First, the MTSTA does not explain or define when a security interest is created pursuant it.
Perhaps this language is intended to cover a security interest created by the Tribe or Nation. Perhaps
the language is intended to a cover a security interest created pursuant to an agreement that expressly
chooses the MTSTA (as enacted by a Tribe or Nation) as the governing law. If this language is to be
retained, the Drafting Committee might wish to consider adding language to the MTSTA explaining
what created pursuant to this [act] means.
Second, the MSTA does not explain or define the time that the debtor becomes subject to
the jurisdiction of this [Tribe] [Nation]. Section 9-316(d) does state that a debtor becomes subject
to the jurisdiction of this [Tribe] [Nation] if: (1) the debtor is an individual whose principal
residence comes to be within this jurisdiction or who becomes a member of this [Tribe] [Nation].
However, that language expressly applies only [f]or the purposes of this section only, and thus
leaves unclear whether this language applies to § 9-301. Accordingly, the Drafting Committee might
wish to consider applying the definition in § 9-316(d) to § 9-301.](ViewImageLocal?handle=hein.nccusl/nccpubtsta3952&div=1&collection=&method=preview&ext=.png&size=3)