Country and Culture

I’m writing today from steamy Carnegie Park, home of the Kiowa Gourd Clan’s annual celebration. While an American flag is prominently displayed in the middle of the arena and scores of veterans line the rows of chairs behind it, the event is decidedly not a celebration of America’s Independence from Great Britain. 

Somewhere around the time that the Kiowa Indians came to call this part of Oklahoma home, the early days of July coincided with the ripening of the skunkberry, indicating that the time for holding the sun dance was near. As Kiowa warriors came to defend their territories in the infamous “Indian Wars” against the U.S. Cavalry in the late 1800s, trophies of battle were proudly displayed in the literal center of the annual ceremony. Given its origins, the event became more a celebration of tribal insurgency than a celebration of American Independence from European powers.

Yet, it is impossible to discount the appreciation for our country here marked by a plethora of red, white, and blue, along with the deep admiration expressed repeatedly for the young men from Kiowa Country who have fought with honor on distant shores. It’s also noteworthy that Native Americans have the highest record of military service per capita of any ethnic group in the United States. It is fair to say that American Indians are a rather patriotic lot all things considered.  

But if there’s a conclusion to be drawn from the Kiowa Gourd Clan celebration and its implications for the nexus of culture and country, it is that America’s relationship with its tribal nations is rife with complexity. And though it may be surprising, it is exactly this complexity that makes the annual celebration here in Carnegie a quintessentially American affair.

A couple of years ago I wrote that America is like a large dysfunctional family. I think this is still mostly true. Consider the hullabaloo surrounding the Supreme Court’s recent Hobby Lobby opinion. Proponents of Obamacare and those who generally support the mass availability of contraception have bemoaned the “dangerous implications” of the Supreme Court’s “radical” decision. Meanwhile, faith-based organizations and those opposed to family planning have hailed the ruling as a profound “victory for religious freedom.”

Given our divide, it’s clear that both our internal relationship with other Americans, and America’s relationship with tribes, are complex things. And yet, like a marriage on the rocks, America somehow manages to hold it together year in and year out, providing relative stability for the world and bags of cash when good will isn’t good enough.

It’s true we can do more to cooperate and solve big problems. We can be more united and less inclined to bickering. But as a society we seem to hold our collective paradox rather well.

With our population so divided on so many issues, perhaps celebrating our cultural disconnects really is the best we can do.  

When Tribes Fail to Govern: Lessons from the Tribal Payday LendingFiasco

My work here in New Zealand sometimes feels far removed from the context of my tribes and family back in America. But every now and then, stories drift across the Pacific from Indian Country that remind me how similar the challenges facing the World’s Indigenous peoples are. In this case, challenges of governance and good governance, in particular, strike me as a stubborn blight that Indigenous peoples are hard-pressed to overcome, both here and at home.

Earlier this week, Indian Country Today featured a column by Jane Daugherty with the headline “New York’s Attack on Tribal Lenders is a Threat to All Natives.” For those familiar with the debacle, the headline  referenced the State of New York’s decision to sue three online payday lenders that are said to be affiliates of the Cheyenne River Sioux Tribe of South Dakota. The rub of the case, as summarized by the Wall Street Journal, is below:

The lawsuit poses a key test for regulators who have begun cracking down on online lenders, including those affiliated with Indian tribes. Government officials say the lenders are violating state interest-rate caps and consumer-protection laws, but tribes say they are immune because they operate as sovereign governments.

[Link]

In her analysis of the matter, Daugherty opined that “New York’s action ignores the sovereign immunity of recognized Indian tribes, as repeatedly upheld in the Supreme Court and in numerous states.” She then goes on to cite a Colorado State court opinion on tribal payday lending and sovereign immunity as a “highly relevant” corollary to the matter at hand in New York.

A few thoughts.

First, it needs to be mentioned that a Colorado State court opinion is not highly relevant to the New York lawsuit at all. Ms. Daugherty isn’t a lawyer so it’s understandable that a layperson might confuse the jurisdictional authorities of various courts. But the fact is, while a New York State court might choose to consider the reasoning of a Colorado State court judge, an opinion issued in another state is in no way dispositive of the lawsuit before the court in New York, regardless of how compelling the logic of the Colorado opinion is. This is problematic for Daugherty’s piece because of the bulk of it cites excerpts from the Colorado opinion en route to the conclusion that New York will waste taxpayer dollars just like the State of Colorado – presumably because the outcome will be the same. On the contrary, New York could well reach a different conclusion entirely and even see its opinion upheld in Federal Court.

Second, and in her defense, Daugherty correctly notes that the legal doctrine of tribal sovereign immunity is the major, legal oblation on the line in the New York matter. To wit, a gaggle of potentially affected tribes  have already filed a complaint seeking injunctive relief from the Federal District Court in effort to forestall New York’s efforts to regulate the tribal payday lending industry. In their complaint, the tribes asserted the defense of tribal sovereign immunity, a legal doctrine which prevents tribal governments from being sued without their consent. Elsewhere in the complaint, the tribes argue that permitting NY to regulate the industry even while the lawsuit proceeds, would be tantamount to inflicting an irreparable harm on the tribes through the disruption of the payday lenders’ operations. Indeed, there is some evidence to support this point already.

There’s little question as to the profound consequences that such a legal challenge presents. Tribal sovereign immunity has long been viewed with some skepticism by the courts and has at various junctures come perilously close to being extinguished altogether. Naturally, parading an ethically suspect payday lender before the court, one that charges clients north of 355% interest on loans, does not a sympathetic defendant make. Nevertheless, one goes to war with the army one has, not the army one wants – as Defense Secretary Rumsfeld was fond of saying.

Still, it stands to reason that the tribes involved could have taken preventative measures to ensure that clients doing business with tribal entities do not get hosed with 355% interests rates. I sometimes see red when I think of the interest rate on my credit card. I might well see black were my statement to include a rate of 355% (!!!). Frivolities aside, the tribes in question should have been proactive about establishing regulatory guidelines of their own, in order to ensure fair dealings and conformity to industry practices. True, tribes are not (in my view) subject to state regulatory regimes in this instance. But this is not to say that some form of regulation to protect consumers has no place in the tribal payday lending industry. What makes the lawsuit unfortunate is that the situation could have been avoided entirely had the tribes in question taken the initiative to govern.

The lesson to learn from the debacle is that effective tribal governments carry on with the business of governing. Whether it is regulating the shady business practices of its own entities through tribal codes, or engaging with other tribal governments to implement, broad industry wide standards, effective tribal governments undertake the decidedly non-glamorous work of governance rather than allowing power vacuums to fester into a full-blown lawsuit.

When viewed through the prism of tribal governance, the lawsuit pending in New York represents a critical, lost opportunity for tribes to demonstrate their competence.

Indigenous Governance in the United States and New Zealand

It’s been a long while since I’ve added an update on my work with Indigenous peoples. I had hoped this site would turn into a place where I could share some of the questions that have come about from my work and a place where I could obtain feedback from those interested in similar issues.

Alas, somewhere between finishing my dissertation, welcoming my firstborn Son into the world, and moving to New Zealand, the blog was left to flounder.

My time in New Zealand has been spent with the Māori and Indigenous Governance Centre in the Te Piringa – Faculty of Law at the University of Waikato. Having never lived abroad, it has been somewhat of a transition but the work has been interesting and I couldn’t be more please to be working in my field of expertise. And true to form, a lot of questions have come up that I’ve tried to address in various capacities – most directly in the form of a couple of law review articles that are still in the works.

What I wanted to share, for now, is an article I drafted for the New Zealand Lawyer Magazine that applies some of the work done on Native Nation building in the U.S. to the situation of Māori iwi here in New Zealand. The response has been underwhelming so far but I hold out the naive hope that someone will give it a read and seek out further information – including the resources of our centre.

By way of clarification, the point of the article, of course, was not to imply that America has the cure for every conceivable ill that colonization hath wrought. Rather, the point of the article is to suggest that there are enougH similarities between the challenges of indigenous governance in the U.S. and New Zealand that our countries can share lessons and avoid each other’s mistakes.

I conclude the piece with this thought, which more or less summarizes my thoughts on Indigenous governance in general:

Having traversed the desolate plain of trial and error, our tribal nations have experienced federal policies towards Indian governance that have ranged from the outright termination of tribal institutions, to the extant policy promoting tribal self-determination. If Māori can benefit from the troubling lessons of the United States’ past, we should be so fortunate to see something good come from something that was objectively rather grim. [Link]

New Scholarship: "A Libertarian Framework for Indian Rights"

This site is long overdue for an update. For now, I’m pleased to share the above post about my work from the Indian Law blog Turtle Talk run by Prof. Matthew Fletcher at Michigan State University Law School.

Prof. Fletcher’s website posted a link to my SSRN profile and shared the abstract of my dissertation with the Turtle Talk community.

Many thanks to Turtle Talk! Looking forward to having new conversations with friends and colleagues about the libertarian framework for Indian rights.