An additional tidbit on tribal sovereign immunity and payday lending

Scott noted earlier today that the California Supreme Court will hear a case posing the following question: Is a payday lender that is formally owned by a Native American tribe but run by a third-party who keeps most of the proceeds protected by tribal sovereign immunity?

So, the U.S. Supreme Court just this morning issued a decision about tribal immunity. In Michigan v. Bay Mills Indian Community, the Court considered, among other things, whether one of the Court's earlier decisions (Kiowa) broadly interpreting the scope of tribal sovereign immunity should be overruled. The Court reaffirmed Kiowa in a 5-4 ruling, with Justice Thomas authoring the principal dissent. His dissent notes (in footnote 4) that lower courts have broadly interpreted tribal sovereign immunity to include not only tribes but also "arms of tribes" like tribal casino development authorities. He also addressed (on page 12) the payday lending issue:

In the wake of Kiowa, tribal immunity has also been exploited in new areas that are often heavily regulated by States. For instance, payday lenders (companies that lend consumers short-term advances on paychecks at interest rates that can reach upwards of 1,000 percent per annum) often arrange to share fees or profits with tribes so they can use tribal immunity as a shield for conduct of questionable legality. Martin & Schwartz, The Alliance Between Payday Lenders and Tribes: Are Both Tribal Sovereignty and Consumer Protection at Risk? 69 Wash. & Lee L.Rev. 751, 758–759, 777 (2012).

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