Native American Tribes and Sovereign Immunity

I've only seen the commercial in the past six months or so. A woman bedecked with tribal jewelry and drums (yes, drums) playing in the background asks, "Need a loan?" "It costs," she goes on to say, "but you don't need collateral." Another commercial for the same company has a long-haired gentleman shows up with a background of mountains and clouds declaring that Big Sky has the payday loan for you. "Of course it's expensive," he says with a shrug, "but there's no collateral."

There's also no legal recourse. You can't sue a Native American company in civil courts, even if there's an arbitration clause in the documents that are signed. Native American Tribes have been granted sovereign immunity. So if good ol' Big Sky deducts early or deducts too much from your checking account and causes you overdraft fees, that's just too bad. American courts cannot hear your case.

I'm the first person to admit that Native Americans got a raw deal since the first settlers landed on America's shores. I acknowledge the atrocities suffered by tribes as a result of the government's deceptive and downright criminal acts. Tribal sovereignty is not new. The concept has been around since George Washington signed a treaty of peace and friendship with the Iroquois in 1794. The U.S. Constitution also recognized Native American tribes as distinct governments. It was not until the late 1890's, however, that United States courts (including the Supreme Court) defined just how sovereign a nation the Native American nation is. Reparations were made. And concessions were given recognizing the uniqueness of the culture and laws of the tribes.

Those attributes were further acknowledged in 1978, when the Indian Child Welfare Act was signed into law, providing that in custody matters relating to a child possessing Native American blood, state courts must defer heavily to tribal governments. And again, in 1988, when The Indian Gaming Regulatory Act was signed into law, providing that states act in good faith to negotiate a compact allowing for tribal-run casinos within state borders. In fact, as of today, only Congress has the power to override Indian affairs.

I believe it's time to revisit the issue. In 1924, Native Americans were declared American citizens, with all the rights -- and more -- that other citizens enjoy. They are permitted to vote, thus having a voice in the outcome of elections for a government they repudiate. If tribes are conducting business -- whether that's gaming or loans -- with non-tribal members and off reservation (including over the internet) those transactions should be subject to state (or federal) court jurisdiction. Moreover, those tribal businesses should be subject to the same state and local taxes as other businesses (which they are not).

The American Indian Policy Center website states as follows: "However, there are a number of generally accepted, fundamental attributes that qualify something as sovereign. First, and most important, are people. There must be a distinct, unique group of people. These people must have a distinct language, a distinct moral and religious structure, and a distinct cultural base. They must have a specific geographic area that they control and regulate. Within that area, they must possess governmental powers, including the power to tax and the power to change their government if they see fit. These governmental powers must be acknowledged by the people who are subject to them, and they must be enforceable by some sort of authority, whether it be military, police, or general citizen control."

What happens, one must ask, when a distinct, unique group of people with a distinct language and moral and religious structure and cultural base willfully elects to integrate with the society around it? The same way an immigrant from Mexico, or Italy or Iran is subject to the laws of this country by virtue of their voluntary election to live here, so too must tribal affairs which stray from the "specific geographic area" that tribes control and regulate.

In short, tribal companies are seeking to have their cake and it it too. They want to be able to enjoy support services provided by the U.S. government, vote in U.S. elections, run off-reservation casinos, and conduct business in states by granting loans to its citizens at rates which are illegal.

When there's an issue, however, they want to claim the protection of sovereign immunity. And they're getting away with it. It's time to call the debt as paid in full.