Many tribal governments are in serious need of economic development avenues. As sovereign nations within U.S. borders, they have the inherent authority to bypass laws and regulations that regulate business relationships with non-tribal online retailers, tech start-ups, and even larger digitally-focused companies interested in hospitable climates for expansion. E-commerce, once a fledgling industry, is on track to far surpass in-person transacting by both volume and value. The Internet could provide those tribal governments and their businesses with a virtual mobility sufficient to maintain a worldwide customer base.
In order to curtail that growth, the states could force the courts to address the issue of what I have termed “e-sovereignty” in the most unfavorable context for tribal governments — that of payday lending. For sovereigns and their advocates, the time is now to carve out a niche for tribal e-commerce both online and in the case law.
One case in particular that should be watched closely is Otoe-Missouria Tribe v. New York Dept. of Financial Regulation. The State of New York has attempted to shut down the tribal governments payday lending operation with cease-and-desist letters and other investigatory tactics. The tribal government has responded with a lawsuit seeking injunctive and declaratory relief as against the State’s regulators and its usury laws. The New York State District Court that first heard the case ruled last year in favor of the State, relying on general principles of lending law outside of either the online or tribal context. A Second Circuit’s decision on the Otoe-Missouria’s appeal is due soon, and its reasoning could lay the groundwork for future decisions involving tribal e-commerce far beyond the realm of lending.
It would behoove both Tribal businesses and their champions to maintain a vigilant focus on this area of the law and to make their voices heard in support of e-sovereignty.
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Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at email@example.com and 619.515.3277.