From the August 23, 2013 issue of Indian Country Today (redacted):

Feds Claim Tribal Lenders Not a Target

Jane Daugherty

In the first positive federal response to widespread Indian protests over government attacks on tribal companies’ online loan businesses, U.S. Department of Justice officials August 21 assured eight tribal officials that they are not being illegally targeted.

The Department of Justice’s Financial Fraud Task Force’s recent activities were “not directed at tribal entities short-term lending businesses,” eight tribal leaders were told Wednesday in a meeting with Deputy Assistant Attorney General Maame Ewusi-Mensah Frimpong, said John Shotton, chairman of the Otoe-Missouria Tribe and chairman of the Native American Financial Services Association (NAFSA). Shotton participated with other tribal leaders in the meeting with Frimpong.

In response to Wednesday’s meeting with DOJ officials, Shotton said in a letter, “We were pleased to hear from you today that your actions are not directed at our tribal government short-term lending businesses. In particular, it was a relief to hear Deputy Assistant Attorney General Frimpong make the statement that, ‘It didn’t occur to me that we should consult with tribes in advance because we are going after fraud. Never have we focused on tribal payday or payday. We go after financial fraud, so we are not going after you.’ ” Shotton’s and other tribal leaders’ letter to Frimpong was posted on the NAFSA website Thursday, August 22.

Shotton also revealed that the DOJ has invited the tribal representatives to be part of the new DOJ Consumer Protection Working Group. Shotton added, “Tribal governments share your dedication to protecting consumers by offering responsible financial services products and services.”

The letter to the DOJ also noted the “recent … proud tradition of consultation between our governments that was memorialized by Executive Order during the Clinton Administration. Both the George W. Bush and Obama Administrations have continued this legacy of cooperation and respect for the sovereign rights of American Indian tribal governments.

“President Obama confirmed this commitment on November 5, 2009 by reaffirming Executive Order 13175, requiring all heads of departments and executive agencies to consult with American Indian tribal governments before taking any action which may affect the sovereign rights of an Indian Tribe. The recent Executive Order, dated June 26, 2013, establishing the White House Council on Native American Affairs, specifically acknowledges, ‘that self-determination—the ability of tribal governments to determine how to build and
sustain their own communities—is necessary for successful and prospering communities.’ ”

The key legal precedent governing tribe-owned businesses, including online lenders, is sovereign immunity, which recognizes the tribes as sovereign nations within the U.S. with complete control over their lands, businesses, laws and governance. Sovereign immunity was guaranteed in numerous treaties with the U.S. government in exchange for the surrender of vast tracts of Indian land and natural resources.

Tribal sovereign immunity has repeatedly been upheld in the Supreme Court and in numerous states. First expressed in Article I, section 8, of the United States Constitution, the courts have since consistently found that any erosion of Tribal Sovereignty would lead to a complete loss of the rights of recognition granted to the tribes by the federal government.

In 2012 in Colorado, tribal rights to operate online lending businesses under circumstances very similar to those in New York were upheld. In State of Colorado v. Cash Advance and Preferred Cash Loans, fully recognized as “arms” of Congressionally acknowledged tribes, dragged on for seven years with a final ruling that proved to be an overwhelming affirmation of tribal sovereign immunity.

Brandon said for some tribes online lending businesses fund as much as a quarter of the government’s operational budgets, money they can ill-afford to lose for schools, health care and housing in economically depressed Indian communities.

For those of you who did not read my 3/12/13 blog or wish to re-read it, here it is.

In previous blogs, I’ve emphasized that the right of federally recognized tribes – sovereign nations – to pursue economic development has been assured through court decisions, congressional legislation, treaties, etc. And because of this right, tribes and associations representing tribes have made their right to do business with payday loan companies a sovereignty issue, not a payday loan industry issue.

Because I worked for a federally recognized tribe for almost six years, I learned about and experienced sovereignty from the tribal side. I came to understand and respect its power and how the continuance of tribal sovereignty is pursued everyday in the federal political arena.

The September 25th issue of the Los Angeles Times carried an article on tribes and their relationship with President Obama. It is important for those of you in the payday loan industry to understand how sovereign tribes are effective in the political arena. Therefore, what follows is a redacted Times article.

Indian tribes, with more clout and money, find an ally in Obama

Native American tribes, wielding new clout with casino income, are betting strongly on Obama’s reelection.

By Matea Gold and Joseph Tanfani, Washington Bureau

September 25, 2012, 2:07 a.m.

WASHINGTON — At a July fundraiser in the elegant Mandarin Oriental hotel near Washington’s Tidal Basin, President Obama met with some of his most steadfast supporters — two dozen political and business leaders eager to write sizable checks to help keep him in the White House.

All were leaders of Native American tribes, who pressed their issues with a president they say is attuned to their needs.

According to Bill John Baker, principal chief of the Cherokee Nation, “President Obama is a promise keeper. He promised that he would work with Indian country, that he would help us, and he has done that at every turn.”

The tribes have shown their gratitude, giving at least $2.5 million to Obama’s reelection campaign through the end of July — far outstripping their donations in other recent presidential elections, according to data provided by the nonpartisan Center for Responsive Politics.

The donations highlight a potentially lucrative and, until now, largely untapped source of funds for presidential politics. Unlike corporations and unions, tribes can give directly to candidates. And because of their status as sovereign nations, they can donate more to presidential campaigns than individuals, who cannot give more than $117,000 in federal donations every two years.

Tribes, primarily those engaged in the $26-billion Indian gambling industry, already have become major players in state and congressional politics. In California, for example, four tribes spent more than $100 million to pass a ballot measure allowing them to expand casinos in 2008.

Tribal leaders say Obama won their loyalty by doing more for Native Americans than any other president. Obama — dubbed Barack Black Eagle when he was adopted by the Crow Nation during the 2008 campaign — is the first president to hold an annual summit with leaders from the 566 federally recognized tribes.

The tribes received $3 billion as part of the 2009 economic stimulus package. In addition, the administration beefed up tribal law enforcement powers and improved Indian healthcare services.

Perhaps most significant, the administration has settled billions of dollars in outstanding land and trust claims, including a 13-year-old class-action lawsuit originally brought by Elouise Cobell, a member of the Montana Blackfeet Nation, alleging that the federal government had cheated Native Americans out of income from land and mineral rights the government managed on their behalf for more than a century.

At a Native American caucus held during the Democratic National Convention in Charlotte, N.C., administration officials reminded tribal leaders that Obama ended the contentious Cobell litigation.

“Barack Obama said he wanted it resolved and he wanted to do good things for Indian country to address the injustices that had happened,” said Interior Secretary Ken Salazar, whose department oversees most Indian affairs.

Until Obama’s election, “what the United States has done is essentially taken a position that Indian country is something to almost be forgotten,” Salazar said. “Your president, Barack Obama, Black Eagle, has said that’s not going to be the case.

“He has your back, and so come this November, we need you to have his back.”

A key player who is both helping Obama’s reelection and representing tribes in claims against the government is Washington lawyer Keith Harper, who signed on early to the Obama campaign in spring 2007 and helped design a strategy to woo tribal leaders.

Harper, a member of the Cherokee Nation, helped organize the July fundraiser, as first reported in Indian Country Today, a Native American publication, as well as an earlier one in January. He served on the president’s 2008 transition team, has helped raise more than $500,000 for Obama’s reelection and co-hosted the Native American caucus at the convention.

During the 2008 campaign, Obama met about a dozen times with tribes across the country, including a visit that May to the Crow Indian Reservation in Montana, where he was given a Crow name that translates as “One Who Helps People Throughout the Land.”

Cedric Black Eagle, the tribal chairman whose parents adopted Obama in a traditional ceremony, praised him for his efforts to honor old obligations to Indians. “I think that’s really important for us, as almost the forgotten people in this country,” he said.

At least 47 tribes have donated to Obama’s campaign or the Democratic National Committee in the last two years. Among them are some of the top Indian casino operators, including prominent California tribes, such as the Morongo Band of Mission Indians in Banning ($135,800) and the Pechanga Band of Luiseno Indians in Temecula ($126,600).

Melvin R. Sheldon Jr., chairman of the Tulalip Tribes of Washington state, which have donated more than $181,000 to the campaign, said he expected “another surge of giving between now and November.”

The Tulalip Tribes have received more than $10 million in stimulus funds, including $2.7 million for early childhood development services and $2 million to restore a fish passage for Chinook salmon on the lower Snohomish River.

The Cherokee Nation received more than $10 million to repair highways and build housing, among other projects. Baker, the tribe’s chief, called the Recovery Act “a godsend.”

“We live and die in D.C.,” said Baker, whose iPhone has a picture of him with Obama. “There are so many programs in the past we’ve had to go hat in hand.”

There is much at stake for tribes in the coming four years: outstanding trust claims, efforts to expand tribal authority over domestic violence cases and regulation of online gambling.

At the Native American caucus in Charlotte, Harper urged a room crowded with tribal representatives to do everything possible to reelect Obama if they wanted the “inclusion of Indian country in every policy consideration.”

White House counselor Pete Rouse, who referred to Harper as “my old friend Keith,” told the leaders that their support had been noticed. “Believe me, you’re having an impact,” he said. “Certainly the president knows about it, the president’s people know about it.”

Richard A. Monette, former chairman of the Turtle Mountain Band of Chippewa Indians in North Dakota and an assistant professor at the University of Wisconsin Law School, has misgivings about the tribes’ increasing role in Washington politics.

He says tribal donations are mostly casino money in Indian dress, and he worries that playing big-money politics may end up damaging the tribes.

“They used to have a little bit of moral high ground because of the historical situation. They used to know who their friends were in D.C.,” said Monette, who formerly worked at the Senate Indian Affairs Committee and at the Bureau of Indian Affairs. “Now it’s the friends they bought and paid for, and when they stop paying, their friends are going to leave too.”

Tribal leaders say it’s silly to expect Native Americans to play by different rules from those of other interest groups.

Jacqueline Pata, executive director of the nonpartisan National Congress of American Indians, said some Indians, as members of sovereign nations, once shunned the idea of voting for president. Now they realize that engaging in national politics — and writing checks to campaigns — is “important for keeping our voice at the table.”

“Whether we like it or not, it’s the way America runs,” Pata said, “and it’s the system that’s out there.”

This matter is currently before the courts in Colorado which you can find at http://www.publicintegrity.org/2011/12/20/7716/courts-debate-validity-indian-owned-payday-lenders

While I will not comment on the specifics of this case, I can generically state that tribes more often than not prevail when it comes to attacks on sovereign immunity which has been bestowed upon federally recognized tribes by both Congress and the U.S. Supreme Court. Nonetheless, these early examples of “rent a tribe” relationships between tribes and PDLs, while legal from a sovereignty standpoint, have served as examples of what not to do.

My firm brokers business relationships between federally recognized tribes and PDLs. Today, these are the tenets that guide us:

•      The online business must be 100% owned by the tribe.

•    The tribe, in turn, contracts with a PDL to service, market and operate the tribe’s business. This is not unlike tribally-owned casinos which have contracted with experienced casino operators such as Harrah’s to manage the business on the tribe’s behalf.

•    The PDL may also provide start-up working capital and loan the tribe funds from which the tribe makes its loans to individuals. These funds are repaid the PDL once the individual loan is repaid the tribe. Again, this is not unlike tribally-owned casinos which have been financed by outside interests, sometimes other tribes such as the Mohegan Sun. These outside interests are then repaid from future cash flows of the casinos.

•  The contracts include consumer protection language, to wit: “In collecting payments owed under the notes, the Company shall comply in all material respects with applicable law, including without limitation the Fair Debt Collection Practices Act (the “FDCPA”) and applicable debt collection regulations and consumer protection laws applicable to the Company and the Best Practices of the Community Financial Services Association of America. The Company shall not encourage or allow its employees to threaten or imply that failure to honor any payment instrument in connection with any loan shall subject the borrower to potential criminal prosecution.”

At the current time, we have linked six(s) PDLs with three (3) federally recognized tribes using the tenets described above.Allen Parker Allen@Consultants4Tribes.com  Reach out for help: 951-260-8149