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Tribes Are Forming a More Perfect Union

Barry Brandon
12/3/13

When the course of human events mandates a new forming of political bands between one people and another, that challenge has often been met. This was the foundation of our more perfect union.

So it was when the United States saw its tumultuous start.

So it was outlined as a core tenet of one of the United States’ most important founding documents.

And so it shows its need again today, as Native American tribes and Nations find their most basic rights as sovereign peoples under attack.

At the heart of Native American culture is the right of self-determination and self-government—which has been part and parcel of tribes’ status as sovereign entities. It dictated how tribes conducted themselves for as long as they’ve existed. It had laid the groundwork for their interaction with a federal government.

While sovereignty as a legal principle has been part of the fabric of federal-tribal relations for hundreds of years, it has been reaffirmed and reinforced throughout history. Legislative actions have respected it. Legal rulings have upheld it. And the Constitution codified it—right after it outlined the hope for “a more perfect union.”

With sovereign rights under attack, the fabric of that more perfect union, especially the relationship that exists between the federal government and Indian country, has begun to fray.

As a result, the tribes are now forming a more perfect union amongst themselves, joining together to fight a gross overreach by governmental entities, including the State of New York’s Department of Financial Services, the Consumer Financial Protection Bureau (CFPB), FDIC, Department of Justice, and others.

These agencies, acting overzealously, have taken a stand against tribes’ ability to provide for themselves through the creation of responsible e-commerce enterprises. They’ve attempted to circumvent tribal sovereignty through the intimidation of community banks and third party payment processors. These intermediaries have been threatened with heightened regulatory scrutiny unless they cease doing business with online tribal lenders.

This backdoor approach to regulating Indian country is an affront to the government-to-government and regulator-to-regulator relationship that has existed between the United States and sovereign Indian nations for centuries. Indian country, thus, is presenting a unified front to respond in kind.

In the past few weeks, multiple tribal bodies have taken swift action against this flagrant overreach. Most notably, the National Congress of American Indians (NCAI) put the weight of their members behind a resolution decrying these affronts to Native American sovereignty.

The resolution cites multiple sources establishing the very rights that are now under fire. Executive Order 13175, signed by President Clinton, acknowledges that the United States would continue to work with Indian tribes on a government-to-government basis to address issues concerning self-government, trust resources, and Indian treaty and other rights.

President Obama, in 2009, issued an Executive Memorandum to again reinforce these rights, directing all Federal agencies to develop a written plan of action to implement the directives of E.O. 13175 and to consult and coordinate with tribal governments about this plan.

Most notably, the 2010 Dodd-Frank Act, which established the CFPB, expressly defined tribes as a “State,” thereby recognizing the authority of tribal governments to legalize, regulate, and conduct short-term online consumer financial services. The recent quasi-enforcement actions undertaken by these and other governmental bodies are wholly inconsistent with the trust responsibilities that are owed to Indian nations.

The NCAI is not alone in this defense. Similar resolutions have been passed by a variety of tribes, including the Great Plains Tribal Chairman’s Association, which represents the 16 tribes within the Great Plains Region of the Bureau of Indian Affairs; the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation; the Northern Cheyenne Tribe of Lame Deer, Montana; the Fort Belknap Indian Community of Harlem, Montana; and the Rosebud Sioux Tribe of Rosebud, South Dakota. Nevada’s Pyramid Lake Paiute Tribe and Te-Moak Tribe of Western Shoshone Indians of Nevada have also sent letters to elected officials protesting this assault on their sovereignty.

These highly respected rights have sustained us for the duration of our history. If they are to be attacked, we will be united in defending them. And therein will lay a more perfect union for our sovereign Nations.

Barry Brandon, a citizen of the Muscogee (Creek) Nation, serves as the Executive Director of the Native American Financial Services Association (NAFSA), bringing a wealth of experience in Native American law and policy to the the organization. He has served for more than two decades as a litigator, corporate executive, policy strategist, and regulatory advisor, making him a highly-regarded authority on legal and policy matters regarding Indian country.

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