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2014

Court Agrees: New York State Department of Financial Services Perpetuating Irreparable Harm to Indian Country

Court Opinion Reinforces Tribes' "Heavy Fiscal Reliance on Lending Operations"

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WASHINGTON, Oct. 1, 2013 /PRNewswire/ -- After the Hon. Richard J. Sullivan of the U.S. District Court, Southern District of New York denied a preliminary injunction in The Otoe-Missouria Tribe of Indians, et al. v. New York State Department of Financial Services, et al., effectively allowing the state of New York to overstep its jurisdiction onto Native American sovereign territories, Barry Brandon, Executive Director of the Native American Financial Services Association (NAFSA), provided the following comment:

"Today's ruling failed to address hundreds of years of legal precedent and legislative action regarding Native Americans' sovereign rights and will continue to allow ongoing and irreparable damage to Indian country through the state of New York's actions. The Court acknowledges this, noting that 'given the Tribes' heavy fiscal reliance on lending operations, these developments pose a potentially ruinous threat to the Tribes' financial viability.' On that point, they are correct – it will absolutely devastate our tribes, which get large shares of our tribal operating budgets from the revenues generated by these businesses.

"At a time when the federal share of our governmental budgets is constantly in jeopardy as a result of budget sequestration and government shutdowns, our ability to provide for ourselves through these businesses is more important than ever. Without the preliminary injunction to allow these legal and regulated businesses to continue, their revenue streams will dry up, the services tribal governments offer to the most vulnerable among us will cease to be funded, and Native peoples will suffer."

James Williams, Jr., Chairman of the Lac Vieux Desert Band of Lake Superior Chippewa Indians, added:

"Consumers who take out loans from NAFSA tribal businesses do so with the express and clear knowledge that they are taking out a loan from a federally-recognized tribe, that it originates on a Native American reservation, and that it is made pursuant to sovereign tribal law. The Internet has allowed consumers to travel – virtually – to our reservations to get the financial services they need. The Court recognizes Tribes' rights to sovereign authority over our territories, yet supplants that recognition with this decision. They aren't just allowing the state to choke off our businesses; they are choking off our livelihoods.

"The denial of the tribes' request for an injunction allows Defendant Lawsky to run out the clock without having to show a legal basis for his actions."

The lawsuit was filed on August 21 on behalf of the Otoe-Missouria Tribe, a federally-recognized Indian Tribe; Great Plains Lending, LLC, a wholly-owned tribal limited liability company; American Web Loan, Inc., a wholly-owned tribal corporation; Otoe-Missouria Consumer Finance Services Regulatory Commission, a tribal regulatory agency; Lac Vieux Desert Band of Lake Superior Chippewa Indians, a federally-recognized Indian Tribe; Red Rock Tribal Lending, LLC, a wholly-owned tribal limited liability company; and  the Lac Vieux Desert Tribal Financial Services Regulatory Authority, a tribal regulatory agency. Both tribes involved are members of NAFSA.

Benjamin M. Lawsky, in his individual capacity and in his official capacity as Superintendent of the New York State Department of Financial Services, has been named as the Defendant.

David Bernick of Dechert, LLP, is serving as Counsel of Record for the action with Robert Rosette serving as co-counsel and attorney representing the two tribes.

About NAFSA
The Native American Financial Services Association (NAFSA) formed in 2012 to advocate for Native American sovereign rights and enable tribes to offer responsible online lending products. Through the protection of consumer rights and sovereign immunity, NAFSA provides vital services to tribally operated lenders serving the under-banked with better short term financial services, furthering economic development opportunities in Indian Country.

 

SOURCE Native American Financial Services Association (NAFSA)



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