The opinion
Filed 1/21/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE OF THE STATE OF B242644
CALIFORNIA,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC373536)
v.
MIAMI NATION ENTERPRISES et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County, Yvette M.
Palazuelos, Judge. Affirmed.
Uche L. Enenwali, Senior Corporations Counsel, and Mary Ann Smith, Deputy
Commissioner, California Corporations Counsel; Kamala D. Harris, Attorney General,
Sara J. Drake, Senior Assistant Attorney General, Jennifer T. Henderson, Deputy
Attorney General, for Plaintiff and Appellant.
Fredericks Peebles & Morgan, John Nyhan, Nicole E. Ducheneaux and Conly J.
Schulte for, MNE and SFS, Inc., Defendants and Respondents.
___________________
Applying the arm-of-the-tribe analysis as we directed in Ameriloan v. Superior
Court (2008) 169 Cal.App.4th 81 (Ameriloan), the trial court dismissed for lack of
subject matter jurisdiction this action by the Commissioner of the California Department
of Corporations against five “payday loan” businesses owned by Miami Nation
Enterprises (MNE), the economic development authority of the Miami Tribe of
Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly
owned by the Santee Sioux Nation, also a federally recognized Indian tribe. Because the
two tribal entities and their cash-advance and short-term-loan businesses are sufficiently
related to their respective Indian tribes to be protected from this state enforcement action
under the doctrine of tribal sovereign immunity, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Commissioner’s Complaint and the Initial Ruling on the Motions To Quash
Following an investigation by the Department of Corporations, in August 2006 the
1
Commissioner issued desist-and-refrain orders to Ameriloan, United Cash Loans, US
Fast Cash, Preferred Cash and One Click Cash, directing them to cease their unlicensed
and unlawful loan activities in California. In June 2007, after the businesses failed to
comply with the desist-and-refrain orders, the Commissioner filed a complaint in the
name of the People of the State of California for injunctive relief, restitution and civil
penalties against Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One
Click Cash alleging they were providing short-term, payday loans over the Internet to
California residents in violation of several provisions of the California Deferred Deposit
2
Transaction Law (DDTL) (Fin. Code, § 2300 et seq.). Specifically, the complaint
1
Effective July 1, 2013 the Department of Corporations and Department of
Financial Institutions combined and became the Department of Business Oversight within
the Business, Consumer Services and Housing Agency pursuant to the Governor’s
Reorganization Plan (G.R.P.) No. 2 of 2012. (See Gov. Code, §§ 12080.2, 12080.5.)
The Corporations Commissioner is now the Commissioner of Business Oversight.
2
“Payday loans are controversial. They typically offer about two weeks of credit, due
in full on the borrower’s next payday, at annual interest rates of around 400 percent. While
2
alleged the five businesses engaged in deferred deposit transactions within California
without being licensed (Fin. Code, § 23005, subd. (a)), originated loans in excess of the
$300 statutory maximum (Fin. Code, § 23035, subd. (a)), charged excessive loan fees
(Fin. Code, § 23036, subd. (a)), and failed to provide their customers with various
required written notices (Fin. Code, § 23001, subds. (a), (e)). The trial court granted the
Commissioner’s ex parte request for a temporary restraining order against each of the
businesses and set a date for them to show cause why the request for a preliminary
injunction should not be granted.
MNE and SFS specially appeared and moved to quash service of summons and to
dismiss the complaint on the ground the five payday loan businesses named as defendants
were simply trade names (or “dba’s”) of the two tribal entities and, as wholly owned and
controlled entities of their respective tribes operating on behalf of the tribes, they were
protected from this state enforcement action under the doctrine of tribal sovereign
borrowers find fast relief, they are often left indebted for months, struggling to repay a loan
that was marketed as a short-term solution. Proponents argue that payday loans are a useful
form of credit for consumers who lack access to more conventional banking services, but
opponents claim they overburden people who are already struggling to make ends meet.”
(The Pew Charitable Trusts, Payday Lending in America, Series Summary (Oct. 2013)
<http://www.pewstates.org/uploadedFiles/PCS_Assets/2013/Pew_Payday_Lending_Series_
Summary.pdf [as of January 21, 2014].) According to the findings of the Pew Charitable
Trusts’ Payday Lending in America study, 12 million Americans take out payday loans each
year, spending approximately $7.4 billion annually. The average loan is $375. The average
borrower is in debt for five months during the year, spending $520 in interest to repeatedly
renew the loan. Sixty-nine percent of first-time borrowers use the loan for recurring bills,
including rent or utilities; only 16 percent use them to deal with an unexpected expense such
as a car repair. (Ibid.)
In affirming the judgment of dismissal under the doctrine of tribal sovereign
immunity, we obviously take no position in the policy debate over the general
undesirability or predatory nature of online payday loans and express no view on the
merits of the Commissioner’s allegations that the cash advance and short-term loan
services offered by the tribal entities violate the DDTL.
3
3
immunity. Both tribal entities submitted declarations describing in some detail their
relationship to their respective tribes and the economic benefits the tribes obtained from
operating the businesses. In opposition, in addition to arguing the doctrine of tribal
sovereign immunity did not apply to commercial activities outside of Indian country, the
Commissioner urged at the very least discovery should be permitted with respect to the
jurisdictional facts articulated in the declarations accompanying the motions to quash.
On October 19, 2007 the trial court denied the motion to quash service, concluding
tribal sovereign immunity did not apply to the tribal entities’ payday loan activities. In
the same order the court granted the Commissioner’s request for a preliminary injunction
prohibiting the five named defendants from engaging in unlicensed, nonexempt deferred
deposit transaction business, charging excessive fees, violating the Commissioner’s
cease-and-refrain orders and destroying records.
2. Our Ameriloan Decision
MNE and SFS, on behalf of the named payday loan businesses, petitioned this
court for a writ of mandate vacating the trial court’s order. In Ameriloan, supra,
169 Cal.App.4th 81 we granted the petition in part and directed the trial court to vacate its
order denying the motions to quash and granting the preliminary injunction and to
conduct a new evidentiary hearing to determine the applicability of the doctrine of tribal
4
sovereign immunity in the particular circumstances of this action.
3
In addition to asserting their immunity to suit, MNE and SFS contended their
businesses, utilizing automated clearing house transactions, were not subject to the
provisions of the DDTL, which, by its terms, applies to transactions involving “personal
checks”—an issue we identified but did not resolve in Ameriloan in light of the
uncertainty as to the court’s subject matter jurisdiction. (See Ameriloan, supra,
169 Cal.App.4th at pp. 99-100.)
4
We had initially issued a summary denial of MNE and SFS’s petition. The
Supreme Court granted MNE and SFS’s petition for review and transferred the matter to
us with directions to issue an alternative writ and hear the matter. (See Ameriloan, supra,
169 Cal.App.4th at p. 88.)
4
Our opinion briefly summarized the tribal sovereign immunity doctrine,
explaining, “An Indian tribe’s sovereign nation status confers an absolute immunity from
suit in federal or state court, absent an express waiver of that immunity or congressional
authorization to sue.” (Ameriloan, supra, 169 Cal.App.4th at p. 89.) We then quoted the
key language from the United States Supreme Court’s decision in Kiowa Tribe v.
Manufacturing Tech. (1998) 523 U.S. 751 [118 S.Ct. 1700, 140 L.Ed.2d 981] (Kiowa),
which held a federally recognized Indian tribe enjoys immunity from suit in state court
even if the subject of the action is purely commercial activity that occurs on nontribal
lands. Based on Kiowa we concluded the trial court had erred in ruling as a matter of law
the doctrine of tribal sovereign immunity did not apply to the payday loan companies’
5
commercial activities occurring outside of Indian country. (Ameriloan, at pp. 89-90.)
We also held the trial court had erred in concluding tribal sovereign immunity had been
waived based on a “sue or be sued” clause in the resolution establishing MNE as an
economic subdivision of the Miami Tribe of Oklahoma or the arbitration provision
contained in each of the payday loan companies’ loan agreements with consumers. (Id. at
pp. 94-96.)
To decide the motion to quash—that is, to decide whether the tribal entities,
operating through the named payday loan companies, are entitled to the benefits of tribal
sovereign immunity—we explained, the trial court “must first determine whether those
entities, in fact, are acting on behalf of federally recognized tribes.” (Ameriloan, supra,
169 Cal.App.4th at p. 97.) “Tribal sovereign immunity extends not only to the Indian
tribes themselves but also to those for-profit commercial entities that function as ‘arms of
the tribes.’ [Citations.] The doctrine, however, does not ‘“cover tribally chartered
5
Relying on Kiowa, supra, 523 U.S. 751, we explained the question was not
whether state regulatory laws, here the DDTL, apply to commercial activities conducted
outside Indian country by a tribal entity, but whether the tribal entity is protected from a
government enforcement action under the doctrine of tribal sovereign immunity.
(Ameriloan, supra, 169 Cal.App.4th at pp. 90-91; see Kiowa, at p. 755 [“[t]here is a
difference between the right to demand compliance with state law and the means
available to enforce them”].)
5
corporations that are completely independent of the tribe.”’” (Ibid.) In light of the trial
court’s failure to make findings pertinent to the arm-of-the-tribe analysis, we directed it
to conduct a new evidentiary hearing and to consider whether the two tribal entities are
sufficiently related to their respective tribes to be entitled to the protection of tribal
sovereign immunity. “To this end, the court should consider the criteria expressed by the
Courts of Appeal in Trudgeon [v. Fantasy Springs Casino (1999)] 71 Cal.App.4th [632,]
638 and [Redding] Rancheria [v. Superior Court (2001)] 88 Cal.App.4th [384,] 389,
including whether the tribe and the entities are closely linked in governing structure and
characteristics and whether federal policies intended to promote Indian tribal autonomy
are furthered by extension of immunity to the business entity. (See also Allen v. Gold
Country Casino (9th Cir. 2006) 464 F.3d 1044, 1046 [the relevant question for purposes
of applying tribal sovereign immunity ‘is not whether the activity may be characterized
as a business, which is irrelevant under Kiowa, but whether the entity acts as an arm of
the tribe so that its activities are properly deemed to be those of the tribe’].)” (Ameriloan,
at pp. 97-98.)
In response to the Commissioner’s request to be permitted discovery into the
assertion that profits from the payday loan operations benefit the two tribes that created
MNE and SFS, we observed, “we see no reason why limited discovery, directed solely to
matters affecting the trial court’s subject matter jurisdiction, should impact the payday
loan companies’ special appearance . . . .” (Ameriloan, supra, 169 Cal.App.4th at p. 98.)
Nonetheless, because no issue relating to discovery was raised in the petition for writ of
mandate, we made no express ruling on the permissible scope of any discovery when the
matter returned to the trial court. (Id. at pp. 98-99.)
3. The Parties’ Evidentiary Presentations Regarding the Arm-of-the-Tribe Issue
Following our Ameriloan decision, discovery was conducted in the trial court,
ultimately under the supervision of a discovery referee appointed pursuant to the parties’
6
6
stipulation under Code of Civil Procedure section 639. Thereafter, MNE and SFS
renewed their motion to quash service and to dismiss the action for lack of subject matter
jurisdiction, submitting with the moving papers extensive supporting documentary
evidence. In response, the Commissioner filed a motion for a preliminary injunction,
which the trial court deemed an opposition to the motion to quash. After further
consideration the trial court then conducted an evidentiary hearing on May 10, 2012.
a. Evidence from the tribal entities
i. The Miami Tribe of Oklahoma
According to the tribal entities’ evidence, the Miami Tribe of Oklahoma was
organized in 1936 pursuant to the Oklahoma Indian Welfare Act of 1936 (25 U.S.C.
§ 501) and is governed by a constitution and by-laws approved by the Secretary of the
Interior. Its ancestral homelands included much of the upper Midwest (what is now
Indiana, Illinois, Ohio and lower Michigan and Wisconsin), but the Miami people were
forcibly removed from this area in 1846 and relocated several times thereafter, ultimately
to “Indian Territory,” now Oklahoma. Its headquarters are located on land held in trust
for the tribe’s benefit by the United States in rural northeastern Oklahoma, approximately
90 miles from Tulsa. The United States Small Business Administration has included this
land within its designations of historically underutilized business zones.
Recognizing “a critical need for the development of economic activities . . . to
provide for the well-being of the citizens of the Miami Tribe,” the tribe organized MNE
as a wholly owned and controlled tribal entity pursuant to the May 2005 Amended Miami
Nation Enterprises Act. That Act specifies MNE “shall be a subordinate economic
enterprise of the Miami Tribe of Oklahoma” and provides the tribe’s governing body, the
Tribal Business Committee, has delegated its authority to MNE: “[T]he creation and
6
In a companion, nonpublished opinion we affirm the separately appealed
August 12, 2011 order imposing $34,437.50 in discovery sanctions against the
Commissioner after the court denied in substantial part her motion to compel further
responses to a second set of requests for production of documents. (People v. MNE
(Jan. 21, 2014, B236547).)
7
operation of Miami Nation Enterprises serves an essential government function of the
Miami Tribe of Oklahoma by allowing the Miami Tribe to provide directly for the
development of tribal revenue generating activities and to acquire property.” The Miami
Tribe expressly provided MNE would enjoy all privileges and immunities of the tribe
itself, including “the right of sovereign immunity from unconsented civil suit.”
MNE’s initial board of directors consisted of the members of the Tribal Business
Committee; the chief of the Miami Tribe appointed all successor members of the MNE
board with the approval of the Tribal Business Committee; the current members of the
board are members of the Miami Tribe; and the initial officers of MNE were hired by the
Tribal Business Committee, including its current chief executive officer. MNE Services,
Inc. is a wholly owned subsidiary of MNE, created in 2008 pursuant to the Amended
Miami Nation Enterprises Act. MNE Services, Inc. processes and approves loan
applications pursuant to underwriting criteria approved by MNE. MNE/MNE Services,
Inc. transact Internet lending under the trade names Ameriloan, US Fast Cash and United
Cash Loans. Their lending activities are subject to tribal laws governing interest rates,
loans and cash advance services. According to supporting declarations, all loan
applications are approved by MNE on federal trust land under the sovereign jurisdiction
of the Miami Tribe of Oklahoma; and profits from MNE/MNE Services, Inc. “directly or
indirectly enable the Miami Tribe to fund critical governmental services to its members,
such as tribal law enforcement, poverty assistance, housing, nutrition, preschool, elder
care programs, school supplies and scholarships. . . . The cash advance business is a
critical component of the Miami Tribe’s economy and governmental operations.”
ii. The Santee Sioux Nation
The Santee Sioux Nation was organized under section 16 of the Indian
Reorganization Act of 1934 and is governed by a constitution approved by the Secretary
of the Interior in 2002. The Santee Sioux reservation is located in an isolated, rural
region of northeastern Nebraska. (The ancestral home of the Santee Sioux is in present-
day Minnesota. They were forcibly relocated first to South Dakota and then to their
8
current site.) The United States Small Business Administration has also included this
land within its designations of historically underutilized business zones.
Acting through its governing body, the Tribal Council, in 2005 the tribe created
SFS, Inc., a wholly owned chartered tribal corporation whose sole purpose is to generate
revenue to help fund the Santee Sioux’s governmental operations and social welfare
programs. SFS’s articles of incorporation expressly state it enjoys the tribe’s sovereign
immunity from suit. SFS is licensed pursuant to tribal law to operate an online lending
business (cash advance services and short-term loans) utilizing the trade names Preferred
Cash Loans and One Click Cash. SFS’s articles of incorporation mandate that the board
of directors of SFS, which consists of the members of the Tribal Council, manage SFS;
and the Tribal Council appointed the tribe’s business manager as the chief executive
officer of SFS.
According to the declaration of Robert Campbell, an enrolled member of the
Santee Sioux Nation, a member of the Tribal Council and the treasurer of SFS, “the loan
transactions are approved and consummated in Indian lands and within the jurisdiction of
the Santee Sioux Nation.” In addition, Campbell testified, “These cash advance services
are the primary source of income for SFS.” “All profits earned by SFS go to the Santee
Sioux to help fund its government operations and social welfare programs. . . . The
Santee Sioux reservation is a severely economically depressed region, and the profits
generated by SFS are essential to maintaining a functioning government that is able to
provide the essential government services to its members.”
b. The Commissioner’s evidence
Without seriously questioning the close structural relationship between the Miami
Tribe of Oklahoma and MNE or the Santee Sioux Nation and SFS, the Commissioner
presented evidence to demonstrate the actual cash advance services and loan activities of
the named defendants were actively operated and controlled by nontribal third parties, not
the tribes themselves or their tribally owned corporations. At the outset, the
Commissioner explained the various trade names used by the named defendants were
9
originally registered by one Scott Tucker to advertise and market payday lending services
several years before they were adopted by MNE and SFS. In July 2008 SFS and MNE
entered into management agreements with a Tucker-controlled company, N.M. Service
Corp. (NMS) to direct and operate their lending activities. The Commissioner conceded
MNE and SFS had final authority under these agreements for making the loans, but
contended Tucker’s management company effectively exercised that authority through
advance instructions or approval parameters; in fact, the Commissioner argued, Tucker
and his company totally controlled, operated and managed the businesses as part of an
interrelated network of companies that have common ownership, business functions and
employees and that persistently commingle funds. According to the Commissioner’s
information obtained independently from the Federal Trade Commission and other
sources (that is, not through discovery in this proceeding), MNE and SFS received
one percent of the gross revenues from their cash advance/loan businesses while Tucker’s
company retained the “net cash flow of the Lending Business.”
The Commissioner noted the officers, directors and shareholders of MNE Services
and SFS are not personally liable to creditors or claimants of the corporations for
corporate actions. Consequently, neither the Miami Tribe of Oklahoma nor the Santee
Sioux Nation is potentially subject to liability for any misconduct in the cash advance,
short-term lending businesses. The Commissioner also asserted MNE’s and SFS’s
lending businesses regularly violated tribal laws in the areas of permissible interest rates,
control of bank accounts and the commingling of funds.
4. The Trial Court’s Order Dismissing the Commissioner’s Enforcement Action
Following the evidentiary hearing, the trial court granted MNE and SFS’s motion
to quash service of summons and dismissed the case for lack of subject matter
jurisdiction. Applying the criteria articulated in Trudgeon v. Fantasy Springs Casino,
supra, 71 Cal.App.4th 632 for determining whether a tribal entity functions as an arm of
the tribe for purposes of tribal sovereign immunity, as we had directed in Ameriloan, the
trial court summarized the evidence and concluded the tribal entities were closely linked
10
in governing structure and characteristics to their respective tribes. The court rejected as
unpersuasive the Commissioner’s argument the payday loan businesses were not arms of
their tribes or entitled to tribal sovereign immunity because Tucker and his company
completely controlled their operations and were the primary beneficiaries of the payday
loan activities: “[C]ontrol of a corporation does not mean control of business minutiae;
the tribe can be enmeshed in the direction and control of the business without being
involved in the actual management. . . . [The Commissioner’s] arguments go beyond
governing structure and characteristics and seek a determination that sovereign immunity
does not apply because the Tribes have not exercised sufficient control of the Defendants
or have allowed third parties to extract too much money (benefit) from the tribal entities.
However, these concerns are the Tribes’ concerns. The fact that the Defendant tribal
entities may be violating the Tribes’ own laws and regulations is a matter for the Tribes
and is not a basis to determine the entities are not closely linked in governing structure
and characteristics.”
The court also ruled the federal policies intended to promote tribal autonomy were
furthered by extension of immunity to MNE and SFS and their payday loan businesses
notwithstanding the Commissioner’s contrary position based on the purportedly
disproportionate benefits received by the nontribal managers: “It is undisputed that the
Tribes receive some amount of the gross revenues, which allows the Tribes to fund
important services and projects for their members. It is not the province of this court to
determine that, because the Tribes did not make a better deal with [the nontribal third
parties] in which they secured a greater percentage of gross revenues, Indian tribal
autonomy is no longer furthered. Such an interpretation would substitute this court’s
analysis of the Tribes’ interests for the Tribes’ own analysis of what is in their best
interests. . . . Tribal immunity cannot be defeated simply because third parties who
operate Tribe directed/controlled businesses also benefit substantially—even perhaps
substantially more than the Tribes.”
The Commissioner filed a timely notice of appeal.
11
DISCUSSION
1. Standard of Review
“On a motion asserting sovereign immunity as a basis for dismissing an action for
lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a
preponderance of evidence that jurisdiction exists.” (Campo Band of Mission Indians v.
Superior Court (2006) 137 Cal.App.4th 175, 183; accord, American Property
Management Corp. v. Superior Court (2012) 206 Cal.App.4th 491, 498 (American
Property).) If resolution of the jurisdiction question depends on disputed issues of fact,
we review the trial court’s findings for substantial evidence. (Singletary v. International
Brotherhood of Electrical Workers, Local 18 (2012) 212 Cal.App.4th 34, 41; see
Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016,
1032.) Absent conflicting extrinsic evidence, the question of subject matter jurisdiction
over an action against an Indian tribe is purely one of law, subject to de novo review.
(American Property, at p. 498; Warburton/Buttner v. Superior Court (2002)
103 Cal.App.4th 1170, 1180; see Vons Companies, Inc. v. Seabest Foods, Inc. (1996)
14 Cal.4th 434, 449.)
2. Tribal Sovereign Immunity and the Arm-of-the-Tribe Analysis
“Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign
authority over their members and territories.” (Oklahoma Tax Comm’n v. Potawatomi
Tribe (1991) 498 U.S. 505, 509 [111 S.Ct. 905, 112 L.Ed.2d 1112].) The recognition of
tribes as sovereigns in a government-to-government relationship with other sovereign
nations has its source in the United States Constitution and is a well-established principle
of federal Indian law. (See 25 U.S.C. § 3601(1), (3) [“there is a government-to-
government relationship between the United States and each Indian tribe”; “Congress,
through statutes, treaties, and the exercise of administrative authorities, has recognized
the self-determination, self-reliance, and inherent sovereignty of Indian tribes”]; see
generally Judicial Council Comment, Cal. Rules of Court, rule 10.60.)
12
Tribal sovereign immunity “is a necessary corollary to Indian sovereignty and
self-governance.” (Three Affiliated Tribes v. Wold Engineering (1986) 476 U.S. 877, 890
[106 S.Ct. 2305, 90 L.Ed.2d 881].) “[I]n the absence of federal authorization, tribal
immunity, like all aspects of tribal sovereignty, is privileged from diminution by the
States.” (Id. at p. 890; see Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 [98
S.Ct. 1670, 56 L.Ed.2d 106] [“Indian tribes have long been recognized as possessing the
common-law immunity from suit traditionally enjoyed by sovereign powers. [Citations.]
This aspect of tribal sovereignty, like all others, is subject to the superior and plenary
control of Congress. But ‘without congressional authorization,’ the ‘Indian Nations are
exempt from suit.’”].)
“[A]n Indian tribe is not subject to suit in a state court—even for breach of
contract involving off-reservation commercial conduct—unless ‘Congress has authorized
the suit or the tribe has waived its immunity.’” (C & L Enterprises, Inc. v. Citizen Band
Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 414 [121 S.Ct. 1589, 149 L.Ed.2d 623];
accord, Kiowa, supra, 523 U.S. at p. 760 [tribal sovereign immunity applies without
distinction between on- and off-reservation or governmental or commercial activities];
see generally Cohen’s Handbook of Federal Indian Law (2012 ed.) Sovereign Immunity
§ 7.05[1][a] [“[t]he doctrine of tribal sovereign immunity is rooted in federal common
law and reflects the federal Constitution’s treatment of Indian tribes as governments in
the Indian commerce clause”].)
Much as Eleventh Amendment immunity from suit in federal court applies not
only to the states themselves but also to entities that are properly considered arms of the
state (see, e.g., Alden v. Maine (1999) 527 U.S. 706, 756 [119 S.Ct. 2240, 144 L.Ed.2d
636]; Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 280 [97 S.Ct. 568, 50
L.Ed.2d 471]), tribal sovereign immunity protects not only a tribe itself but also
subordinate governmental or commercial entities acting as arms of the tribe. (American
Property, supra, 206 Cal.App.4th at p. 500; Ameriloan, supra, 169 Cal.App.4th at p. 97;
see Cohen’s Handbook of Federal Indian Law, supra, § 7.05[1][a] [tribal immunity
13
“extends to entities that are arms of the tribes”]; see generally Cook v. AVI Casino
Enterprises, Inc. (9th Cir. 2008) 548 F.3d 718, 727 [comparing arm-of-the-tribe analysis
to deciding whether a state instrumentality could invoke the state’s sovereign immunity].)
The United States Supreme Court has acknowledged, but not yet analyzed, the
arm-of-the-tribe concept. In Inyo County v. Paiute-Shoshone Indians of Bishop
Community of Bishop Colony (2003) 538 U.S. 701, 705, fn. 1 [123 S.Ct. 1887,
155 L.Ed.2d 933], a federally recognized Indian tribe and its tribally chartered, wholly
owned gaming corporation asserted in a civil rights action that tribal sovereign immunity
precluded a county district attorney from executing a search warrant and seizing casino
employment records. At the outset the Supreme Court noted, “The United States [as
amicus curiae] maintains, and the County does not dispute, that the Corporation is an
‘arm’ of the Tribe for sovereign immunity purposes.” The Court did not thereafter
discuss the status of the gaming corporation as an arm of the tribe, resolving the case
7
without deciding the immunity issue. However, opinions from a number of federal and
state courts, including the California Supreme Court and this court in Ameriloan, have
recognized the arm-of-the-tribe prong of the tribal sovereign immunity doctrine and
identified a range of factors to consider in determining whether a subordinate entity is
sufficiently related to a tribe to be protected by tribal sovereign immunity. (See Agua
Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239, 247-248
[“‘immunity extends to entities that are arms of the tribes,’” but “‘apparently does not
cover tribally chartered corporations that are completely independent of the tribe’”]; see
generally Cohen’s Handbook of Federal Indian Law, supra, § 7.05[1][a] [arm-of-the-tribe
analysis “considers tribal involvement in the creation and control of the entity, tribal
intent to clothe the entity with immunity, and whether the entity serves tribal sovereign
7
The Court held only that the tribe did not qualify as a “person” who could sue
under title 42 United States Code section 1983 “to vindicate the sovereign right it here
claims.” (Inyo County v. Paiute-Shoshone Indians of Bishop Community of Bishop
Colony, supra, 538 U.S. at p. 712.) Whether the action could be maintained under the
“‘federal common law of Indian affairs’” was remanded for further consideration. (Ibid.)
14
interests such as economic development”]; Martin & Schwartz, The Alliance Between
Payday Lenders and Tribes: Are Both Tribal Sovereignty and Consumer Protection at
Risk? (2012) 69 Wash. & Lee L.Rev. 751, 776 [observing that “[c]ourts have articulated
numerous variations on the test for whether a tribal business enterprise is entitled to the
tribe’s immunity and identifying six “common factors” used in arm-of-the-tribe
analysis].)
In Trudgeon v. Fantasy Springs Casino, supra, 71 Cal.App.4th 632 our colleagues
in Division Two of the Fourth District adopted a three-factor analysis developed by the
Supreme Court of Minnesota: “‘1) whether the business entity is organized for a purpose
that is governmental in nature, rather than commercial; [¶] ‘2) whether the tribe and the
business entity are closely linked in government structure and other characteristics; and
[¶] ‘3) whether federal policies intended to promote Indian tribal autonomy are furthered
by the extension of immunity to the business entity.’” (Id. at p. 638, quoting Gavle v.
8
Little Six, Inc. (Minn. 1996) 555 N.W.2d 284, 294-295.) Applying this test the court
held sovereign immunity barred plaintiff’s state court personal injury lawsuit against
Cabazon Bingo, Inc., a corporation organized by the Cabazon Band of Mission Indians, a
federally recognized Indian tribe, to operate a gaming and entertainment complex on
9
tribal land.
8
The Trudgeon court recognized whether the purpose of the tribal entity is
governmental or commercial might no longer be germane after Kiowa. Nonetheless, the
court explained: “[I]t is possible to imagine situations in which a tribal entity may engage
in activities which are so far removed from tribal interests that it no longer can
legitimately be seen as an extension of the tribe itself. Such an entity arguably should not
be immune, notwithstanding the fact it is organized and owned by the tribe.” (Trudgeon
v. Fantasy Springs Casino, supra, 71 Cal.App.4th at p. 639.)
9
The court suggested the claim could be pursued in a tribal court “which has civil
jurisdiction over all disputes within reservation boundaries” and presumed the tribal court
“can and will fairly adjudicate the matter.” (Trudgeon v. Fantasy Springs Casino, supra,
71 Cal.App.4th at p. 645.)
15
In American Property, supra, 206 Cal.App.4th 491, a panel of Division One of the
Fourth District employed the set of six factors set forth in the Tenth Circuit’s decision in
Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort (10th Cir.
2010) 629 F.3d 1173, 1181, 1187-1188, for examining the relationship between a
subordinate economic entity and the tribe: “‘(1) their method of creation; (2) their
purpose; (3) their structure, ownership, and management, including the amount of control
the tribe has over the entities; (4) whether the tribe intended for the entities to have tribal
sovereign immunity; (5) the financial relationship between the tribe and the entities; and
(6) whether the purposes of tribal sovereign immunity are served by granting immunity to
the entities.’” (American Property, at p. 501.) Applying those factors, which it found
“accurately reflect[ed] the general focus of the applicable federal and state case law”
(ibid.), but also quoting from several other decisions considering the arm-of-the-tribe
question including Trudgeon, the court held U.S. Grant, LLC, the owner of a historic
hotel in downtown San Diego, was not an arm of the Sycuan Band of the Kumeyaay
Nation, a federally recognized Indian tribe, and thus not protected by the tribe’s
sovereign immunity. The “dispositive fact” for the court was that U.S. Grant, LLC was a
California limited liability company, separated by several other layers of California
limited liability companies from the Sycuan Tribal Development Corporation (STDC), a
corporation charter under Sycuan’s tribal laws. (See American Property, at pp. 495, 501,
505.) From the complex structure created to insulate STDC from any possible liability in
connection with ownership of the hotel, the court concluded “STDC was not primarily
concerned about sovereign immunity with respect to the entities that it created to
facilitate its investment. . . .” (Id. at p. 505.) The court expressly noted it was not
expressing any view on whether STDC itself was protected by tribal sovereign immunity.
(Id. at p. 505, fn. 10.)
The Colorado Supreme Court in Cash Advance and Preferred Loans v. Colorado
ex rel. Suthers (Colo. 2010) 242 P.3d 1099, after reviewing decisions from a number of
federal courts of appeals, articulated its own variation of the arm-of-the-tribe analysis in
16
considering the precise question presented by the case at bar: Are MNE, conducting a
short-term loan business under the trade name Cash Advance, and SFS, conducting a
similar business under the trade name Preferred Cash Loans, arms of the Miami Nation of
Oklahoma and the Santee Sioux Nation, respectively, and therefore protected by the
tribes’ sovereign immunity from state investigatory enforcement actions? Remanding the
matter to the trial court to resolve that question in the first instance, the Supreme Court
identified three factors, “each of which focuses on the relationship between the tribal
entities and the tribes, to help guide the trial court’s determination whether the entities in
this case [MNE and SFS] act as arms of the tribes so that their activities are properly
deemed to be those of the tribes: (1) whether the tribes created the entities pursuant to
tribal law; (2) whether the tribes own and operate the entities; and (3) whether the
entities’ immunity protects the tribes’ sovereignty.” (Id. at p. 1110.)
3. The Law of the Case Doctrine Does Not Restrict the Factors Appropriately
Considered in the Arm-of-the-Tribe Analysis
Under the law of the case doctrine, “a matter adjudicated on a prior appeal
normally will not be relitigated on a subsequent appeal in the same case.” (Davies v.
Krasna (1975) 14 Cal.3d 502, 507; People v. Barragan (2004) 32 Cal.4th 236, 246
[“when an appellate court ‘“states in its opinion a principle or rule of law necessary to the
decision, that principle or rule becomes the law of the case and must be adhered to
throughout [the case’s] subsequent progress, both in the lower court and upon subsequent
appeal”’”].) The doctrine applies to decisions of intermediate appellate courts as well as
courts of last resort (People v. Murtishaw (2011) 51 Cal.4th 574, 589) and “even if the
court that issued the opinion becomes convinced in a subsequent consideration that the
former opinion is erroneous.” (Santa Clarita Organization for Planning the Environment
v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156; see Morohoshi v. Pacific
Home (2004) 34 Cal.4th 482, 491 [“‘it is only when the former rule is deemed erroneous
that the doctrine of law of the case becomes at all important’”].) The doctrine promotes
finality by preventing relitigation of issues previously decided. (George Arakelian
17
Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291; see Searle
v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.)
In Ameriloan, supra, 169 Cal.App.4th 81 we held MNE and SFS’s motion to
quash should be granted if the tribal entities and the lending businesses they operate are
sufficiently related to their respective tribes to be protected by tribal immunity and
specifically referred to the criteria expressed in Trudgeon v. Fantasy Springs Casino,
supra, 71 Cal.App.4th 632 for analyzing the arm-of-the-tribe doctrine. (Ameriloan, at
10
p. 98.) In urging us to reverse the trial court’s order dismissing the case for lack of
subject matter jurisdiction, the Commissioner analyzes the evidence primarily in light of
the six factors for evaluating the immunity question set forth in the Tenth Circuit’s
decision in Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort,
supra, 629 F.3d 1173, as restated by Division One of the Fourth District in American
Property, supra, 206 Cal.App.4th 491. In their respondents’ brief MNE and SFS argue
the Commissioner’s reliance on American Property violates the law of the case doctrine,
11
which, they assert, requires use of a “two-part test” based on the analysis in Trudgeon to
the exclusion of any other arm-of-the-tribe analysis.
MNE and SFS misapprehend the import of our prior decision in Ameriloan. As
discussed, in Ameriloan we mandated the trial court vacate its ruling that tribal sovereign
immunity did not apply simply because MNE and SFS were conducting off-reservation,
10
We also cited Redding Rancheria v. Superior Court, supra, 88 Cal.App.4th 384, a
case that discusses the arm-of-the-tribe doctrine and the factors identified as dispositive
in Trudgeon: “Trudgeon specifically held an Indian casino (a tribal corporation) was
entitled to immunity because of the importance of gaming in promoting tribal self-
determination, the close link between the tribe and the casino, and the existence of federal
law promoting Indian gambling.” (Redding Rancheria, at p. 389.)
11
As discussed in footnote 8, above, Trudgeon identified three factors, not two, but
questioned the continued significance of evaluating whether the purpose of the tribal
entity is governmental or commercial. (Trudgeon v. Fantasy Springs Casino, supra,
71 Cal.App.4th at p. 639.) In directing the trial court to consider the criteria expressed in
Trudgeon, our Ameriloan opinion omitted any express reference to that element of the
arm-of-the-tribe analysis. (See Ameriloan, supra, 169 Cal.App.4th at p. 98.)
18
for-profit commercial activities (Ameriloan, supra, 169 Cal.App.4th at pp. 89-91). We
also rejected the arguments that application of tribal sovereign immunity in this case
would intrude on California’s exercise of its reserved powers under the Tenth
Amendment (id. at pp. 91-94) and tribal sovereign immunity had been waived (id. at
pp. 94-96). Accordingly, under the law of the case, as the trial court recognized when it
revisited the motion to quash, the only question remaining was whether MNE and SFS
and the businesses they operate function as “arms of the tribe.” (Id. at pp. 97-99.)
Although we directed the trial court to consider the criteria expressed in Trudgeon in
making that determination, nothing we said prohibited the trial court—or restricts this
court in deciding the appeal now before us—from considering additional aspects of the
relationship between the Miami Tribe of Oklahoma and the Santee Sioux Nation, on the
one hand, and MNE and SFS and their payday loan businesses, on the other hand, in
deciding the immunity issue. Regardless of how many nonexclusive and overlapping
factors a court identifies, the relevant inquiry is ultimately the same: Are the tribal
entities sufficiently related to their respective tribes to be protected by tribal sovereign
immunity? Ameriloan established the governing legal principle. It did not prescribe a
precise analytic process to apply that principle to the facts developed at the evidentiary
hearing we authorized.
4. MNE and SFS Are Protected by Tribal Sovereign Immunity from the
Commissioner’s Enforcement Action
There can be little question that MNE and SFS, considered initially by themselves
and without regard to the payday lending activities at issue in this enforcement action,
function as arms of their respective tribes. In marked contrast to the situation considered
in American Property, supra, 206 Cal.App.4th 491, where the dispositive fact was that
U.S. Grant, LLC had been organized under California law and was separated from the
STDC, an entity created under tribal law, by several other lawyers of California limited
liability companies (see id. at pp. 495, 501, 505), MNE was created directly under the
Miami Tribe’s tribal law as a subordinate unit of the tribe itself to provide for its
economic development. Also unlike the Sycuan Band’s relationship to U.S. Grant, LLC
19
(see id. at p. 505), the Miami Tribe expressly intended for MNE to be covered by tribal
sovereign immunity. Like our colleagues in Division One of the Fourth District, we
believe the tribe’s method and purpose for creating a subordinate economic entity are the
most significant factors in determining whether it is protected by a tribe’s sovereign
immunity and should be given predominant, if not necessarily dispositive, consideration.
(See American Property, at p. 501 [quoting a number of court decisions that “have
considered creation of an entity under tribal law as a factor weighing significantly in
12
favor of a conclusion that the entity shares in the tribe’s sovereign immunity”].)
Other elements of the various tests appearing in the case law also support the trial
court’s arm-of-the-tribe conclusion as applied to MNE. As discussed, MNE’s initial
board of directors consisted of the Miami Tribe’s business committee, and the chief of
the tribe has appointed all successor members of the MNE board in consultation with the
business committee; all five members of the board are members of the Miami Tribe.
Profits earned by MNE are utilized by the Miami Tribe to fund critical governmental
services to its members including tribal law enforcement, poverty assistance, preschool
and elder care programs. In addition, any tribal funds and other resources used to create,
capitalize and operate MNE are necessarily at risk in its business operations. That tribal
assets might not be directly jeopardized if MNE were allowed to be sued does not appear
to be significant since the very purpose of creating any subordinate corporate entity is to
create the opportunity for economic gain while protecting the tribe from potential
liabilities; in the absence of a tribal guarantee, a judgment against a corporation will
never impact a tribal treasury. (Cf. Cook v. AVI Casino Enterprises, Inc., supra, 548 F.3d
at p. 725 [tribal corporation “competing in the economic mainstream” protected by tribal
immunity if it functions as an arm of the tribe; here, economic benefits produced by tribal
12
Identifying the weight to be given the various factors in the arm-of-the-tribe
analysis is important; for, as Judge Frank H. Easterbrook of the Seventh Circuit Court of
Appeals colorfully observed in a far different context, a “list of factors without a rule of
decision is just a chopped salad.” (In re Synthroid Marketing Litigation (7th Cir. 2001)
264 F.3d 712, 719.)
20
corporation inure to the tribe’s benefit because “all capital surplus from the casino shall
be deposited in the Tribe’s treasury and because the Tribe, as the sole shareholder, enjoys
all of the benefits of an increase in the casino’s value”]; Memphis Biofuels v. Chickasaw
Nation Industries Inc. (6th Cir. 2009) 585 F.3d 917, 920-921 [section 17 of the Indian
Reorganization Act of 1934, 25 U.S.C. § 477, authorizing incorporation of a federally
chartered tribe’s business activities, “creates ‘arms of the tribe’ that do not automatically
forfeit tribal-sovereign immunity”]; but see American Property, supra, 206 Cal.App.4th
at p. 506 [“due to U.S. Grant, LLC’s status as a California limited liability company, the
Sycuan tribe’s assets would not be exposed by any judgment against U.S. Grant, LLC”].)
In sum, the Miami Tribe of Oklahoma and MNE are closely linked through method of
creation, ownership, structure, control and other salient characteristics; and, although the
operations of MNE are commercial rather than governmental—itself an essentially
neutral consideration after Kiowa—extension of immunity to it plainly furthers federal
policies intended to promote tribal autonomy. (See Ameriloan, supra, 169 Cal.App.4th at
p. 98; Trudgeon v. Fantasy Springs Casino, supra, 71 Cal.App.4th at p. 638.)
As with MNE, and again unlike the California limited liability company evaluated
in American Property, SFS is a wholly owned corporation organized under tribal law and
expressly protected from suit by the tribe’s immunity. Pursuant to SFS’s articles of
incorporation, its board of directors consists of the members of the Tribal Council, who
manage SFS; and the Tribal Council appointed the tribe’s business manager as the chief
executive officer of SFS. All profits earned by SFS are used by the Santee Sioux to help
fund its government operations and social welfare programs, furthering the tribe’s
sovereign interest in economic development. Indeed, the evidence before the trial court
was, because the reservation is in a severely depressed region, those profits are essential
to maintaining a functioning tribal government able to provide necessary services to the
tribe’s members. Thus, the Santee Sioux and SFS are also closely linked by virtue of
SFS’s method of creation, ownership, structure and control, and extension of immunity to
it substantially promotes tribal autonomy.
21
Although the tribes own and control MNE and SFS, their relationship to the cash
advance and short-term loan businesses operated by those tribal entities under various
trade names—Ameriloan, US Fast Cash, United Cash Loans, One Click Cash and
Preferred Cash Loans—is slightly more complicated. According to the Commissioner’s
evidence at the hearing on the motion to quash, those names had been registered and used
to market payday lending services by Scott Tucker and/or his company NMS (or its
predecessors) for several years prior to the entry of MNE and SFS into the short-term
loan business in July 2008. More significantly, day-to-day operations of these fast-cash
businesses—what the trial court referred to as “business minutiae”—have been
effectively delegated pursuant to management agreements to NMS, a third-party,
nontribal entity. Additionally, MNE and SFS do not participate in the net income from
the businesses, receiving instead only a modest percentage of the gross revenues,
characterized by the Commissioner as similar to a royalty. Thus, the Commissioner
asserts in the opening brief, “The management agreements and bank records demonstrate
that SFS and MNE, doing business as the Payday Lenders, are simply revenue-producing
businesses created to facilitate Tucker’s ordinary for-profit payday lending business for a
set fee”—disparagingly denominated as a “sham,” “rent-a-tribe” scheme by the
Commissioner.
Yet the Commissioner necessarily concedes, as the evidence demonstrated, under
the management agreements MNE and SFS have final decisionmaking authority to
approve or disapprove any loans; advance instructions or approval parameters are
established by them to allow the third-party managers to function on a quick-turnaround
basis. Indeed, the agreements expressly provide that the tribal entities have “the sole
proprietary interest in and responsibility for the conduct of the business” and that NMS’s
day-to-day management of the operations is “subject to the oversight and control of”
MNE and SFS, respectively.
In other words, MNE and SFS are not merely passive bystanders to the challenged
lending activities. A tribal entity engaged in a commercial enterprise that is otherwise
22
entitled to be protected by tribal immunity does not lose that immunity simply by
contracting with non-tribal members to operate the business. (See, e.g., Native American
Distrib. v. Seneca-Cayuga Tobacco (10th Cir. 2008) 546 F.3d 1288, 1294 [recognizing
tribal immunity protected tobacco business of Seneca-Cayuga Tribe of Oklahoma from
suit by third-party distributor notwithstanding limited waiver of that immunity in separate
agreement with management company engaged to operate tribal business]; Cabazon
Band of Mission Indians v. County of Riverside (9th Cir. 1986) 783 F.2d 900, 901, affd.
sub nom. California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202 [107 S.Ct.
1083, 94 L.Ed.2d 244] [noting with approval the tribal business was “operated by non-
Indian professional operators, who receive a percentage of the profits”]; but cf. American
Property, supra, 206 Cal.App.4th at p. 505 [designation of a nontribal entity to manage
business created under state law, rather than tribal law, is a further indication that the
business should not be considered an arm of the tribe for the purpose of sovereign
immunity].)13 Similarly, whether or not the Miami Tribe and the Santee Sioux negotiated
good or poor management agreements for themselves—whether a share of net profits
would be more beneficial under the circumstances than a percentage of gross revenues
and whether they could have insisted on a higher percentage than they actually
received—even if not minutiae, cannot serve as the basis to determine the tribal entities
are not functioning as arms of their respective tribes.
The recurring theme of the Commissioner’s briefing and oral argument is that
online payday lenders engage in egregious, deceptive and exploitive practices prohibited
by California law. That leitmotif is reinforced by the assertion MNE and SFS’s business
activities also violate tribal laws and their own organizational documents with respect to
13
In part in response to California v Cabazon Band of Mission Indians, supra,
480 U.S. 202, which held California lacked authority to regulate bingo gambling
conducted by Indian tribes on Indian land within the state, Congress enacted the Indian
Gaming Act of 1988 (IGRA) “to provide a statutory basis for the operation and regulation
of gaming by Indian tribes.” (Seminole Tribe of Florida v. Florida (1996) 517 U.S. 44,
48 [116 S.Ct. 1114, 134 L.Ed.2d 252].) IGRA creates a cooperative federal-state-tribal
scheme for regulation of gaming by federally recognized Indian tribes on Indian land.
23
interest rates as well as control of bank accounts and commingling of funds. Repeated
commercial conduct the tribal entities concede violates tribal law or that is shown by
uncontroverted evidence to be prohibited by the tribes as a matter of law may well be a
factor properly considered in determining whether the entities are functioning as arms of
the tribe. (Cf. Flatley v. Mauro (2006) 39 Cal.4th 299, 316.) But the record here is far
from undisputed, and it would offend all notions of tribal sovereignty for a state court to
adjudicate whether MNE or SFS is violating tribal law. Moreover, as we explained in
Ameriloan, supra, 169 Cal.App.4th at page 93, although we recognize the public policy
considerations supporting the Commissioner’s efforts to protect poor and poorly educated
consumers, “‘“sovereign immunity is not a discretionary doctrine that may be applied as
a remedy depending on the equities of a given situation . . . .” Rather it presents a pure
14
jurisdictional question.’”
In the end, tribal immunity does not depend on our evaluation of the respectability
or ethics of the business in which a tribe or tribal entity elects to engage. Absent an
extraordinary set of circumstances not present here, a tribal entity functions as an arm of
the tribe if it has been formed by tribal resolution and according to tribal law, for the
stated purpose of tribal economic development and with the clearly expressed intent by
the sovereign tribe to convey its immunity to that entity, and has a governing structure
both appointed by and ultimately overseen by the tribe. Such a tribal entity is immune
from suit absent express waiver or congressional authorization. Neither third-party
management of day-to-day operations nor retention of only a minimal percentage of the
14
Recognizing that online payday lending businesses owned and operated by tribal
entities are likely to be found immune to enforcement actions by state authorities, several
commentators have proposed federal legislation to regulate the industry. (See, e.g., Note,
Usury on the Reservation: Regulation of Tribal-affiliated Payday Lenders (2011-2012)
31 Banking & Fin. L.Rev. 1053, 1071-1077; Martin & Schwartz, The Alliance Between
Payday Lenders and Tribes, supra, 69 Wash. & Lee L.Rev. at pp. 790-791; Comment,
Circumventing State Consumer Protection Laws: Tribal Immunity and Internet Payday
Lending (2012) 91 N.C. L.Rev. 326, 342.)
24
profits from the enterprise (however that may be defined) justifies judicial negation of
that inherent element of tribal sovereignty.
DISPOSITION
The judgment is affirmed. MNE and SFS are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
25