North Carolina Law Review

Gregory Sisk on Strict Construction of Federal Waivers of Sovereign Immunity

Matthew L.M. Fletcher

Gregory C. Sisk has posted “Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity,” forthcoming in the North Carolina Law Review, on SSRN. An important read for tribal advocates.

Here is the abstract:

The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.

Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.

In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).

New Scholarship Recommending Curbs on Tribal Payday Lenders

Matthew L.M. Fletcher1 Comment

Heather L. Pretrovich, a North Carolina law student, has published Circumventing State Consumer Protection Laws: Tribal Immunity and Internet Payday Lending in the North Carolina Law Review.

Here is the abstract:

As tribal payday lending becomes more prevalent, there is a dire need for federal action to halt the trend’s momentum. In 2010, tribal payday lenders made up “[m]ore than 35 of the 300” Internet payday lenders and made “about $420 million in payday loans.” The need for regulation of this conduct is imminent—“[s]ome observers predict that the number of tribes with payday-loan operations eventually could climb close to the 400 that now have casinos.” Additionally, various lenders have shown an interest in copying the tribal lending business model, which will likely result in additional industry growth. In the absence of federal regulation, the number of companies targeting consumers will increase, rendering previous state regulation efforts futile.

This Comment argues that federal action is necessary to block attempts by payday lenders to bypass consumer protection laws by organizing as tribal entities. Because the federal government does not currently regulate payday lending and tribes are immune from state suit, states are unable to protect their consumers from the practices that they have previously fought to curtail. Due to these obstacles, this Comment proposes possible solutions that can prevent tribal payday lending companies from circumventing state consumer protection laws. Part I provides background information introducing the specific problems that states have encountered in their initial regulation efforts against these companies. Part II describes why tribal payday lending cases are so rare and analyzes this body of case law. Part III analyzes why state regulation is inadequate and the reasoning behind the need for a federal response to this practice. Finally, Part IV examines what courses of action may be taken and which of those proposals are most likely to quickly and effectively address the problem.

New Scholarship on Tribal Court Contempt Power over Nonmembers

Matthew L.M. Fletcher

The North Carolina Law Review has published “The Jurisdictional ‘Haze’: An Examination of Tribal Court Contempt Powers Over Non-Indians.”

Here is the abstract:

Recently, in the case of In re Russell, the Cherokee Tribal Court confronted the thorny issue of criminal contempt­. The court ruled that because all courts’ criminal contempt powers are inherent, they fall outside the scope of Oliphant. This Recent Development argues, however, that while imprecise facets of Oliphant and contempt law would make it appropriate for the Cherokee Tribal Court to claim power over summary criminal contempt prosecutions of non-Indians in some circumstances, the court’s blanket decree that criminal contempt is always within a tribal court’s jurisdiction runs counter to current law.

Part I presents the facts of the Cherokee Tribal Court’s order in In re Russell as the backdrop for a discussion of the interplay between contempt law and tribal court jurisdiction. Part II provides a brief overview of tribal criminal court jurisdiction under the Supreme Court’s ruling in Oliphant. Part III surveys the history of contempt law, explaining the sometimes subtle differences between the types of contempt proceedings and how they are jurisdictionally determinative in tribal courts. Part IV applies the principles of Oliphant and contempt law to In re Russell, explaining why the Cherokee Tribal Court stepped beyond its jurisdictional limitations in the case. Part IV concludes by setting forth ways in which tribal courts can, consistent with Oliphant, enforce their authority through their contempt powers.

We will post a PDF of the article once we get it. If, that is.

We do have the order that inspired this article, and it is here.