More Bad Press on Tribal Payday Lending Companies

Here, via Indianz.

Two points on payday lenders that should be apparent by now:

1. Read the Nebraska Supreme Court decision in StoreVisions v. Omaha Tribe, where the court held that tribal immunity was waived where the tribal chair and vice chair signed a waiver document (without constitutional authority to waive immunity) in the presence of other council members, and which the court held the presence of the other council members was sufficient to waive tribal immunity. Courts will find a way to find a waiver.

2. Read David Fredericks’ rendition (pp.217-18) of the oral argument before the U.S. Supreme Court in C&L Enters. v. Citizen Potawatomi, where the Court directly asked the CPN attorney about the way tribes view immunity, and the deeply off-put reaction from the Court by the answer. In fact, here is that exchange (well worth the read):

Justice Kennedy: … Is it your position that you consent that you waive immunity in Tribal Court?

Mr. Minnis: No.

Justice Scalia: So, you don’t think it means Tribal Court?

I didn’t understand your answer to Justice Breyer.

You don’t think it even mean Tribal Court, do you?

Mr. Minnis: Well, I… what I tried to…

Justice Scalia: You think it means any court that you can get me in without this agreement, which doesn’t include any Tribal Court.

Mr. Minnis: That’s correct.

Justice Breyer: Is it a court on the moon?

I mean, what is… there are only to my knowledge Tribal Courts, federal courts, state courts, what else is there?

Mr. Minnis: There are any courts that have jurisdiction.

It begs the questions which court has…

Justice O’Connor: But, you say no court has jurisdiction because this isn’t a waiver of tribal immunity.

Mr. Minnis: That’s correct.

Justice O’Connor: I thought your position was no court had jurisdiction.

Mr. Minnis: That’s correct.

Justice O’Connor: You’re on the moon.

Mr. Minnis: That’s correct.

Justice Souter: So, the tribe in effect has asked the contractor to use a term which in fact is totally meaningless, utterly misleading, and apparently an act of intentional bad faith.

Isn’t that the consequence of your position?

Mr. Minnis: No, Your Honor.

The… every…

Justice Souter: It means any court having jurisdiction.

A-ha, there isn’t one of those.

Chief Justice Rehnquist: Too bad.

Justice Souter: We didn’t mention that.

That seems to be the argument.

Mr. Minnis: That is the argument, Your Honor.

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