By Gary Davis
For the last half century, the remains of two-time Olympic gold medal winner Jim Thorpe have rested in a small town in Pennsylvania that now bears his name. Prior to the relocation of his body, Thorpe, a Sac and Fox citizen, had never visited the Pennsylvania town originally called Mauch Chunk, a name derived from the Delaware people that previously inhabited the area. However, a shady business deal between Thorpe’s third wife and an enterprising municipality saw his body taken away in the middle of a traditional Sac and Fox burial ceremony in Oklahoma, and, subsequently, transformed into a tourist attraction for a dying coal town in Pennsylvania.
In 1990, Congress passed the Native American Graves Protection and Repatriation Act to help tribes recover cultural artifacts and ancestral human remains from museums and other collections. The law is incredibly important to tribes’ sovereign, cultural and spiritual rights to govern the relationship between living tribal members and their ancestors.
Thousands of Native American remains and tribal funerary artifacts have returned to their ancestral homes over the last 30 years as a result of the legislation. However, despite repeated requests and litigation, Jim Thorpe’s body remains in Pennsylvania and far away from his family and fellow tribal citizens back in Pottawatomie County, Oklahoma.
The federal government has been slow to act on the Thorpe family’s demand, creating an arbitrary distinction between Native Americans that died in modern times and those that perished centuries ago. There is no telling when this small Pennsylvania town will stop using Thorpe’s legacy as a tourist trap and permit him to rejoin his brothers and sisters.
The inconsistent application of federal law is nothing new in Indian Country. Broken treaties, bureaucratic stall tactics and mismanagement of trust obligations are far too common themes in tribal histories. Since the 1970s, tribes have been given expanded freedom to organize more complete governments, operate businesses and develop tribal courts through the federal policy of self-determination. Economic development opportunities, especially in the areas of gaming and contracting, have provided some tribes with a new way to ensure tribal citizens have the infrastructure, jobs and social programs necessary to escape poverty and rebuild once mighty nations. However, the inconsistent application and enforcement of federal laws now threaten the emerging multi-billion dollar tribal lending industry.
After the mortgage crisis and Great Recession, a bipartisan Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 to create a number of safeguards against the future possibility of failing banks and tighten oversight over financial institutions in general. Under the Act, federally-recognized tribes were included in the definition of “state” and with that memorialized into the co-regulatory atmosphere alongside the federal government intended by Congress.
Dodd-Frank also established the Consumer Financial Protection Bureau (CFPB), an independent agency with rulemaking, supervisory, and enforcement authority over federal consumer finance laws. In multiple instances, the Act encourages and requires the CFPB to coordinate with state and tribal regulators and include states in any “report of examination made by the Bureau with respect to [a] person” over which the State has jurisdiction.
Further reinforcing tribal jurisdiction to regulate the commercial affairs happening on tribal lands, the Department of the Treasury published an initiative wherein “Tribal governments will be permitted to enforce the CFPB’s rules in areas under their jurisdiction… In addition, tribal consumer financial codes will be protected.”
With this mind, tribes across the nation set out to create tribal regulatory frameworks that included licensing provisions, lending codes and independent regulatory commissions to oversee consumer complaints and maintain responsible rules for lenders. These tribal regulations extend beyond those required by federal law, both as a protection to the consumer and to ensure the sustainability of the lending operations.
In many ways, the CFPB upholds its co-regulation mandate with states. Recently, the agency worked closely with officials in California to end Wells Fargo’s practice of creating millions of fake bank and credit card accounts to charge their customers extra fees and boost sales. At a hearing in April before the House Financial Services Committee, CFPB Director Richard Cordray highlighted the cooperative effort as an example of the work his agency can achieve with the help of states.
However, as current litigation in the Ninth Circuit Court between a few tribal lending entities (TLEs) and the CFPB demonstrates, the agency has no intention of cooperating with tribal regulators, instead choosing to infringe upon tribal sovereignty and ignore Congressional intent. Such antithetical and despotic behavior is not just harmful to the tribes that rely on these lending operations to provide revenues for vital services in their communities, but also could present an unprecedented chilling effect on economic development throughout Indian Country.
When the federal government takes adverse action against a TLE, it is not just affecting a tribal business and its employees, it also affects tribal infrastructure and programs like cultural preservation efforts, broadband internet build out, elder care, after school programs and hospital improvements. Indian Country must continue to pressure federal officials and hold them accountable to the laws and policies that will preserve a more sustainable, culturally-strong Indian Country.
Much like the arbitrary interpretation of the law that has kept Jim Thorpe far removed from his family for decades, the ongoing arbitrary interpretation of the Dodd-Frank Act by the CFPB is working to undermine sovereignty and keep tribal economic ingenuity, innovation and prosperity far removed from tribal nations. ♦