Thoughts from an Airport Cafe: International Indigenous Governance, and Home

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A parade of humanity streams by, each passenger more harried than the last. There’s no rhyme or reason to the fracas here in Terminal 4 of the Los Angeles International Airport. Gate 48B to be precise.

No less than four American flags at the arrival gates remind folks that this is #Murcia. But no one seems to pay them any mind. Wrangling young kids who would rather run off, and finding the proper gate capture the attention of most passengers who are either deplaning, making a connection, or hoping to board. 

I’m traveling solo, seated at a table for two. I’ve given up two chairs that surrounded my table to an Australian group consisting of two families and more kids than should ever be brought on an international trip.

Naturally, they were a lovely bunch.

My travels this week take me to New Zealand and the World Indigenous Business Forum. I plan to share the work we are doing at the University of Arizona to develop an International Indigenous Governance Consortium that will deliver access to education on Indigenous governance to Indigenous peoples around the world. It’s a tall order in a world that is constant motion – not unlike Terminal 4 here at LAX. 

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It’s a cliché (but a useful cliché) to say that what makes these jaunts worthwhile is the opportunity to share information with communities, and folks who haven’t been exposed to the ideas of Native Nation Building. It’s true that the foundation of our research began with the Harvard Project on Native American Economic Development some twenty years ago. But for most Indigenous peoples, twenty years is a drop in the bucket of time. And as recent developments across global jurisdictions demonstrate, the lessons are timely, relevant, and important. 

Whenever I take these trips, I set my phone to an image of home, 300-odd acres of Oklahoma plains, and the home place where my Parents, Grandparents, and Great-Grandparents built, lived, and made a life in a world devoid of traditional values. 

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Thinking about Grandpa back in Cotton County helps me keep in context the work that I do. It reminds me that our target audience isn’t really the academics and Indigenous business elite who are attending the conference, but the folks at home who live on the land, and deal with life in all of its complexity. 

And, of course, I think about my son, Clark, and the world that my generation will leave behind for him. Given the political quagmire surrounding our President’s Supreme Court nominee, it makes me question the future as he becomes a man. But I still have hope. For him. For the folks at home. And for the many people who will be attending the World Indigenous Business Forum. 

But such questions are far from the mind here in Terminal 4 at LAX. The irritated faces of travelers, and the frenetic announcements of the PA system all take top billing over such introspections.

Soon, I will join them and contribute to the broad stream of people who pass through LAX everyday. But my true north will always be far from the locales that I visit.

It remains as it always has – on 360 dusty acres in Cotton County, Oklahoma. Where Papa sits in his recliner watching Football, and the crickets chirp outside.

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.


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.