Federal Regulation of Tribal
Financial Services
Hilary B. Miller
November 2, 2012
Does Dodd-Frank Apply to Tribes?
• Section 1027 defines “state” to include tribes
• BUT: no clear intent to exclude tribes from
definition of “covered person”
• Quaere whether a “tribe” can be a “state” for
one purpose and a “covered person” for
another
• Strong evidence of Congressional policy to
regulate financial services
• CFPB position
Tuscarora-Coeur d’Alene Cases
• Courts will look to established principles of Indian law, including those
governing when federal laws of general application apply to tribes.
• Under the so-called Tuscarora-Coeur d’Alene line of cases, a general
federal law “silent on the issue of applicability to Indian tribes will . . .
apply to them” unless: “(1) the law touches ‘exclusive rights of selfgovernance in purely intramural matters’; (2) the application of the law to
the tribe would ‘abrogate rights guaranteed by Indian treaties’; or (3)
there is proof ‘by legislative history or some other means that Congress
intended [the law] not to apply to Indians on their reservation . . . .’”
• Because general federal laws governing consumer financial services do not
affect the internal governance of tribes or adversely affect treaty rights,
courts may determine that these laws apply to TLEs.
• The view that federal laws of general application extend to Indian country
is confirmed by both leading treatises on Indian law.
Citations
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Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960) (“a general [federal]
statute in terms applying to all persons includes Indians and their property interests”).
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985), applied the Occupational
Safety and Health Act, 29 U.S.C. § 651, to a tribal government workplace. See also, generally, San
Manuel Indian Bingo & Casino, 475 F.3d 1306 (D.C. Cir. 2007) (construing the National Labor
Relations Act, 29 U.S.C. § 151, as applying to tribe); Smart v. State Farm Ins. Co., 868 F.2d 929 (7th
Cir. 1989) (applying Employee Retirement Income Security Act, 29 U.S.C. § 1132, to group
insurance policy issued to Indian-owned hospital); Phillips Petroleum Co. v. United States
Environmental Protection Agency, 803 F.2d 545, 547 (10th Cir. 1986) (Safe Drinking Water Act, 42
U.S.C. § 300f, may be imposed in Indian country); Florida Paraplegic Ass’n v. Miccosukee Tribe of
Indians, 166 F.3d 1126, 1127, 1129-30 (11th Cir. 1999) (applying Americans with Disabilities Act, 42
U.S.C. § 12181, to a tribal restaurant); Confederated Tribes of Warm Springs Reservation of Oregon
v. Kurtz, 691 F.2d 878 (9th Cir.1982), cert. denied, 460 U.S. 1040 (1983) (federal taxes apply to tribal
activities even without a “clear” expression of applicability).
Cohen’s Handbook of Federal Indian Law (Nell Jessup Newton et al., eds.., rev. ed. 2005) at 131and
§ 10.01(2)(a) at 775 & n.6; William C. Canby, Jr., American Indian Law in a Nutshell (4th ed. 2004)
at 282-86.