Loan Companies Owned by Tribes Have Sovereign Immunity

Wednesday, December 17, 2008

Page 1

Loan Companies Owned by Tribes Have Sovereign Immunity—C.A.

By KENNETH OFGANG, Staff Writer

Payday loan companies owned and operated by Indian tribes for tribal purposes have sovereign immunity and are not subject to legal actions to enforce state laws regulating the business of lending, the Court of Appeal for this district has ruled.

Div. Seven Monday granted a writ of mandate sought by five companies asserting tribal immunity in an action brought by the California Department of Corporations. The panel overturned an injunction and sent the case back to the trial court for a determination of whether the relationship between the tribes and the companies satisfies the requirements for immunity.

The department sued in June of last year, charging that Ameriloan, US Fast Cash, United Cash Loans, Preferred Cash and One Click Cash had ignored its “cease and desist” orders and were violating the Deferred Deposit Transaction Law by lending without state licenses and charging excessive fees, among other ways.

Internet-Based Business

The companies are engaged in a largely Internet-based business of lending money short-term to borrowers who pay back the loans by authorizing repayment from their checking accounts on specific dates, typically on the next payday. The business is controversial because the loans carry huge charges, without regard to the number of days for which the money is borrowed, and has been regulated to the point at which it is virtually outlawed in some states.

In response to service of the complaint on the companies, The Miami Tribe of Oklahoma and the Santee Sioux Nation appeared specially in the action and moved to quash for lack of jurisdiction. The tribes asserted that the five defendants were operated by tribal corporations pursuant to tribal resolutions, that the proceeds of the businesses were used for tribal government and social welfare purposes, and that the lenders were arms of the tribes and shared the tribes’ immunity from being sued in the absence of express congressional authorization or waiver.

Retired Los Angeles Superior Court Judge Joseph R. Kalin, sitting on assignment, denied the motions and granted a preliminary injunction barring the companies from engaging in the allegedly unlawful practices set forth in the complaint. He ruled that the tribes are not immune from liability for off-reservation commercial activities and that the state’s power to enforce its laws under the Tenth Amendment takes precedence over their claims of immunity.

He also ruled that the tribes had waived any immunity, the Miami because the tribal corporation operating the businesses was created by a resolution authorizing it to “sue and be sued,” and both tribes because arbitration clauses were included in their standard loan agreements.

Presiding Justice Dennis Perluss, however, writing for the Court of Appeal, said the trial judge erred in several respects.

Tribal sovereign immunity, Perluss said, will apply to off-reservation commercial conduct if the predicates for such immunity are met. He distinguished cases holding that states may regulate tribal commercial activities occurring on nontribal lands.

Those cases, the presiding justice explained, concerned preemption, not sovereign immunity. The U.S. Supreme Court, Perluss noted, has recognized that “[t]here is a difference between the right to demand compliance with state laws and the means available to enforce them.”

Tenth Amendment

Nor, Perluss said, will the Tenth Amendment override the tribes’ immunity from actions to enforce lending laws. Such actions, he said, are distinguishable from those of the type discussed by the Supreme Court in Agua Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239.

In Agua Caliente, the state high court said the state had a right to enforce campaign contribution reporting laws in administrative proceedings against Indian tribes. The court said the case involved “unique circumstances” and that the peoples’ right to a republican form of government, as well as the reservation of rights by the states under the Tenth Amendment, allow the state to insist that tribes obey the same regulations as other donors.

That ruling is limited to the unique field of campaign reform and does not, Perluss wrote, permit “a broad abrogation of the doctrine of tribal sovereign immunity.”

Perluss acknowledged that the expansion of tribal commercial enterprises may call into question the justification for the broad application of sovereign immunity. But such policy judgments are left to Congress and not to the state courts, he declared.

He went on to note that the “sue and be sued” clause in the Miami resolution was specifically limited “to the extent of the specific terms of the applicable contract or obligation,” and that the arbitration clauses in the loan agreements were similarly limited to specific transactions and were not broad waivers of sovereign immunity that would permit a consumer protection action by the state.

The presiding justice did, however, take note of the department’s argument, based on evidence it claimed to have discovered after the injunction was issued, that the loan companies were actually independent of the tribes but were involved in a “rent-a-tribe” scheme created solely to avoid complying with the lending laws.

Such evidence, Perluss said, should properly be considered by the trial judge in order to determine whether the companies are truly arms of the tribe. Past Court of Appeal decisions, he noted, have established criteria for resolving that issue, “including whether the tribe and the entities are closely linked in governing structure and characteristics and whether federal policies intended to promote Indian tribal autonomy are furthered by extension of immunity to the business entity.”

The case is Ameriloan v. Superior Court (People), 08 S.O.S. 6711.