Tribal Lenders Petition Supreme Court in Fight Against CFPB

Two tribal lending entities (TLEs), Great Plains Lending of the Otoe-Missouria Tribe and Plain Green of the Chippewa Cree Tribe, filed a petition for certiorari with the U.S. Supreme Court to review a January 2017 decision by the Ninth Circuit. The circuit court previously found that the Consumer Financial Protection Act (CFP Act), in particular the Consumer Financial Protection Bureau’s (CFPB) authority to issue civil investigative demands (CID) to lenders, was a law of general applicability enforceable upon tribes.

In their petition to the Supreme Court, the TLEs assert there is a split among federal courts as to “whether a generally applicable federal statute, which is silent as to its applicability to Indian Tribes, should nevertheless be presumed to apply to Tribes.” The Second, Sixth, Seventh, and Eleventh circuit courts side with the Ninth Circuit in its application of the Coeur d’Alene test, only allowing for 3 narrow exceptions to overcome a federal statute’s presumption of applicability to Tribes. The Tenth and D.C. circuit courts disagree with this presumption believing the Coeur d’Alene test violates Supreme Court precedent regarding the requirement that Congress expressly include Tribes in a federal statute that could interfere with the exercise of tribal sovereignty.

The Supreme Court has not accepted the case for review yet. If the petition is granted, the TLEs and the CFPB will be required to brief the Supreme Court on their positions related to the question posed in the petition. Oral arguments will be made to the high court before a decision is ultimately rendered. The TLEs are represented by Neal Katyal, a partner at law firm Hogan Lovells and a Professor of Law at Georgetown University. He previously served as U.S. Solicitor General under President Barack Obama and has argued more than 30 cases before the Supreme Court in his career.