Consumer Financial Protection Bureau v. Great Plains Lending, LLC
2017 U.S. App. LEXIS 1028
| 9th Cir. | 2017Background
- Three tribal-owned for-profit lenders (Great Plains Lending, Mobiloans, Plain Green) were created and operated by the Chippewa Cree, Tunica Biloxi, and Otoe Missouria Tribes to make small-dollar online loans.
- The Consumer Financial Protection Bureau (CFPB) served civil investigative demands on the Tribal Lending Entities to investigate possible violations of federal consumer-financial laws.
- The Tribes directed the entities not to comply, asserting tribal sovereign immunity and arguing the Consumer Financial Protection Act (Dodd-Frank) treats tribes as "States," implying tribes are excluded from the Act’s enforcement reach against "persons."
- The Bureau denied the Tribes’ petition to set aside the demands and sought enforcement; the district court enforced the investigative demands, concluding the Act—being of general applicability—applies to tribal commercial entities unless Congress says otherwise.
- The tribal entities appealed, arguing Stevens and related canons support treating "person" as excluding sovereigns and that inclusion of tribes in the Act’s definition of "State" shows Congress intended exclusion.
- The Ninth Circuit affirmed, applying its Coeur d’Alene framework and concluding jurisdiction was not "plainly lacking," and none of Coeur d’Alene’s three exceptions applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CFPB has jurisdiction to issue investigative demands to tribal corporate lenders under the Consumer Financial Protection Act | Dodd‑Frank’s inclusion of tribes in the definition of "State" and the presumption that "person" excludes sovereigns means tribal entities are not subject to CFPB investigative authority | The Act is a generally applicable federal law; it defines "person" broadly and contains no express exclusion for tribal commercial entities, so CFPB may investigate | CFPB has jurisdiction; the court affirmed enforcement because jurisdiction is not "plainly lacking" |
| Whether Stevens requires reading "person" to exclude tribes absent explicit congressional intent | Stevens presumption that "person" excludes sovereigns favors tribes | Coeur d’Alene precedent treats generally applicable laws as applying to tribes unless Congress expressly excludes them; Stevens does not overrule that approach here | Stevens does not defeat Coeur d’Alene; the presumption against sovereign inclusion does not show CFPB plainly lacks jurisdiction |
| Whether the Act’s coordination/co‑regulation provisions (treating tribes like "States") show Congress intended to bar CFPB enforcement against tribal entities | Inclusion of tribes as "States" and the Act’s emphasis on coordination implies exclusivity and limits CFPB enforcement against tribal regulators/entities | Coordination provisions do not create exclusivity; when Congress intends limits it does so expressly elsewhere in the Act, and there is no explicit exemption for tribal commercial entities | Coordination language insufficient to demonstrate congressional intent to exclude tribes from enforcement; no express exclusion found |
| Whether any Coeur d’Alene exceptions (intramural governance, treaty abrogation, legislative-history proof) apply to bar enforcement | Tribal lending is connected to tribal sovereignty and legislative history supports exclusion | Lending here is commercial, reaches non-tribal customers, and there is no persuasive legislative history showing intent to exempt tribes | None of the Coeur d’Alene exceptions apply; activity is commercial and reaches non-members, so CFPB may investigate |
Key Cases Cited
- Donovan v. Coeur d'Alene Tribal Farms, 751 F.2d 1113 (9th Cir. 1985) (generally applicable federal laws apply to tribes unless Congress expressly provides otherwise; three exceptions articulated)
- Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) (presumption that the term "person" excludes the sovereign; can be overcome by clear congressional intent)
- Nat'l Labor Relations Bd. v. Chapa De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003) (standard for evaluating agency jurisdiction at investigative stage; "plainly lacking" test)
- EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001) (application of Coeur d'Alene exceptions where tribal entity performed traditional governmental functions)
- Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (sovereign immunity and the principle that a state is not a "person" under certain federal statutes)