Tribes Not “Persons” Under the Federal Credit Reporting Act, Immune From Individual Suit

Tribes Not “Persons” Under the Federal Credit Reporting Act

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com

The United States District Court for the Eastern District of Wisconsin held on September 4, 2015 that the Oneida Tribe of Indians of Wisconsin (the “Oneida Tribe”) is immune from the suit by an individual plaintiff for alleged violations of federal lending laws. The suit alleged that on three occasions in February 2015, establishments owned and operated by the Oneida Tribe printed receipts displaying more than the last five digits of Plaintiff’s credit card number and the expiration date, in violation of the Fair and Accurate Credit Transactions Act (FACTA), an amendment to the Fair Credit Reporting Act (FCRA). 15 U.S.C. § 1681c(g)(1). The Oneida Tribe argued that the plaintiff’s claims were barred under the doctrine of tribal sovereign immunity, among other things.

Plaintiff’s attorney argued that FCRA and FACTA are laws of general applicability and such statutes reach everyone within federal jurisdiction not specifically excluded, including Indians and tribes, unless an exception to the general rule applies. However, the District Court disagreed that the case was about the applicability of the law to the tribal government. Instead, the court stated “the question here is not whether the Tribe is subject to FCRA; it is whether Plaintiff can sue the Tribe for violating FCRA” and “whether an Indian tribe is subject to a statute and whether the tribe may be sued for violating the statute are two entirely different questions.” The District Court held that Indian tribes are generally immune from suit even with respect to off-reservation commercial conduct and stated that the Supreme Court has “time and again treated the doctrine of tribal immunity [as] settled law and dismissed any suit against a tribe absent congressional authorization (or a waiver).”

In order to abrogate tribal sovereign immunity, Congress must “unequivocally” express that purpose and courts will not lightly assume that Congress intends to undermine Indian self-government. So even if the statute applied to Oneida Tribe (the court was unclear on that issue), the case could be disposed of if the tribe was shielded by sovereign immunity.

The District Court reviewed FACTA and FCRA and found that although the statutes defined the term “person” broadly, there was no unequivocal reference to Indian tribes in that definition. Therefore, when the statutes provided that “no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction,” it is not clear that Congress meant to strip tribal immunity and allow individual credit card holders to sue Indian tribes for violating FCRA.

My two cents: It will be interesting to follow this case if it is appealed to the Supreme Court. Plaintiffs approached the statutes on the proposition that FCRA and FACTA are statutes of general applicability that apply to everyone, including Indian tribes, unless an exception applies. In such a case, the laws would only apply to Indians if Congress expressly provided that they did. The attorneys for the Oneida Tribe and the District Court focused instead on the fact that Indian tribes are generally immune from suit unless Congress has clearly abrogated tribal sovereign immunity in the text of the statute.

Disputes like these arise because Congress passes laws that do not clearly state whether the laws should apply to Indian tribes and whether the violation of such laws will provide a right for an individual to sue the Indian tribes, thereby abrogating sovereign immunity of the Indian tribes. This gives courts broad discretion to interpret the applicability of each and every law, and by doing so based on these two different approaches, courts are bound to come up with contradictory results from time to time. Congress should take the time to clarify and state in the body of each law whether such law will apply to Indian tribes and whether the law creates a right of action against Indian tribes who violate the statute. Otherwise, consumers and tribes will keep guessing, courts will be required to decide for them and precedents will continue to be inconsistent depending on which approach the court uses to interpret these issues.

Shippey-2013_Blog_Web_VersionSandra is a member of the Native American Law practice group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.

Griswold 2013 Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.