Consumer Financial Protection Bureau v. Great Plains Lending, LLC ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSUMER FINANCIAL No. 14-55900
PROTECTION BUREAU,
Petitioner-Appellee, D.C. No.
2:14-cv-02090-MWF-
v. PLA
GREAT PLAINS LENDING,
LLC; MOBILOANS, LLC; OPINION
PLAIN GREEN, LLC,
Respondents-Appellants.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted June 6, 2016
Pasadena, California
Filed January 20, 2017
Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Rawlinson
2 CFPB V. GREAT PLAINS LENDING
SUMMARY*
Tribal Issues / Consumer Financial Protection Bureau
The panel affirmed the district court’s decision
compelling Tribal Lending Entities to comply with civil
investigative demands issued by the Consumer Financial
Protection Bureau.
The Tribal entities are for-profit lending companies
created by the Chippewa Cree, Tunica Biloxi and Otoe
Missouria Tribes (the “Tribes”). The Bureau initiated an
investigation into the Tribal Lending Entities to determine
whether small-dollar lenders violated federal consumer
financial laws. The Tribes directed the Tribal Lending
Entities not to respond to the investigative demands.
The panel held that the Consumer Financial Protection
Act was a law of general applicability, and it applied to tribal
businesses, like the Tribal Lending Entities involved in this
appeal. The panel further held that Congress did not
expressly exclude Tribes from the Bureau’s enforcement
authority. The panel also held that none of the three
exceptions in Donovan v. Coeur d’Alene Tribal Farms, 751
F.2d 1113, 1115 (9th Cir. 1985), to the enforcement of
generally applicable laws against Indian tribes applied to this
case. The panel concluded that the district court properly
held that the Bureau did not plainly lack jurisdiction to issue
investigative demands to the tribal corporate entities under
the Act.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CFPB V. GREAT PLAINS LENDING 3
COUNSEL
Neal Kumar Katyal (argued), Frederick Liu, and Morgan L.
Goodspeed, Hogan Lovells US LLP, Washington, D.C., for
Respondents-Appellants.
Kristin Bateman (argued) and Lawrence DeMille-Wagman,
Attorneys; John R. Coleman, Assistant General Counsel; To-
Quyen Truong, Deputy General Counsel; Meredith Fuchs,
General Counsel; Consumer Financial Protection Bureau,
Washington, D.C.; for Petitioner-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellants Great Plains Lending, LLC, Mobiloans, LLC,
and Plain Green, LLC (collectively, Tribal Lending Entities)
appeal from the district court’s decision compelling the Tribal
Lending Entities to comply with civil investigative demands
(investigative demands) issued by Appellee Consumer
Financial Protection Bureau (Bureau). The Tribal Lending
Entities maintain that they are not subject to the Bureau’s
jurisdiction because the entities were created and operated by
several recognized tribes, and are thereby cloaked in tribal
sovereign immunity. The Tribal Lending Entities assert that,
because the Consumer Financial Protection Act of 2010 (the
Act)1 defines the term “State” as including Native American
tribes, the Tribal Lending Entities, as arms of sovereign
1
The Act is part of the Dodd-Frank Wall Street Reform and
Consumer Protection Act. See Title X, Pub. L. No. 111-203, July 21,
2010, 124 Stat 1376.
4 CFPB V. GREAT PLAINS LENDING
tribes, are not required to comply with the investigative
demands. We disagree with the argument made by the Tribal
Lending Entities that the inclusion of tribes in the Act’s
definition of “State” impliedly excludes the Tribal Lending
Entities from regulation under the Act, and therefore
AFFIRM the decision of the district court enforcing the
investigative demands.
I. BACKGROUND
This appeal stems from the creation of several Tribal
Lending Entities as for-profit lending companies by the
Chippewa Cree, Tunica Biloxi, and Otoe Missouria Tribes
(collectively, Tribes). The Tribes established regulatory
frameworks for consumer lending by these Tribal Lending
Entities.
In addition to regulation by the Tribes, the Tribal Lending
Entities came to the attention of the Bureau, which initiated
an investigation into the Tribal Lending Entities by serving
investigative demands. The Bureau explained that:
The purpose of this investigation is to
determine whether small-dollar online lenders
or other unnamed persons have engaged or are
engaging in unlawful acts or practices relating
to the advertising, marketing, provision, or
collection of small-dollar loan products, in
violation of Section 1036 of the Dodd-Frank
Wall Street Reform and Consumer Protection
Act, 12 U.S.C. § 5536, the Truth in Lending
Act, 15 U.S.C. § 1601, the Electronic Funds
Transfer Act, 15 U.S.C. § 1693, the Gramm-
Leach-Bliley Act, 15 U.S.C. §§ 6802-6809, or
CFPB V. GREAT PLAINS LENDING 5
any other Federal consumer financial law.
The purpose of this investigation is also to
determine whether Bureau action to obtain
legal or equitable relief would be in the public
interest.
The Tribes directed the Tribal Lending Entities not to respond
to the investigative demands, and informed the Bureau that it
lacked jurisdiction to investigate lending entities created and
operated by the Tribes. Rather, the Tribes offered to
cooperate with the Bureau as co-regulators of consumer
lending services.
When the offer of cooperative regulation was rejected by
the Bureau, the Tribes petitioned the Bureau to set aside the
investigative demands. The Bureau denied the Tribes’
petition, and sought enforcement of the investigative demands
in federal court. The district court then issued an order to
show cause as to why the Tribal Lending Entities should not
comply with the investigative demands.
Relying primarily on our ruling in Donovan v. Coeur
d’Alene Tribal Farms, 751 F.2d 1113, 1115 (9th Cir. 1985),
the district court concluded that the Act, as an act of general
applicability, was enforceable against the Tribal Lending
Entities. The district court rejected the Tribal Lending
Entities’ reliance on the holding in Vermont Agency of
Natural Resources v. United States ex rel. Stevens, 529 U.S.
765, 780 (2000) that the statutory definition of the term
“person” typically excludes “the sovereign.” The district
court noted the unlikelihood that Stevens overruled
subsequent Ninth Circuit authority restating the holding in
Coeur d’Alene. Instead, the district court found it persuasive
that “[t]he Stevens and Coeur d’Alene presumptions have . . .
6 CFPB V. GREAT PLAINS LENDING
existed side by side for decades” without so much as a
suggestion of “an inescapable conflict between them.” The
district court reasoned that the cases were indeed reconcilable
because the Supreme Court had not definitively held that the
holding in Stevens applied to actions brought by the federal
government against “the sovereign.”
The district court was also not swayed by the Tribes’
argument that, because the Act treats the states and tribes as
co-regulators, Congress did not intend to vest authority in the
Bureau to regulate tribal entities in the absence of cooperation
with tribal regulators. The district court emphasized that:
textually, the [Act] is not silent with respect to
Indian tribes. . . . The exclusion of statutes
that are not silent with respect to Indian tribes
is intended to avoid undermining the
expressed intent of Congress. Congress does
not express such intent by merely mentioning
Indian tribes as sovereign regulators, while
remaining silent on whether the unrelated
provision at issue is also intended to regulate
Indian tribes.
Put simply, there is no provision of the [Act]
that expressly or impliedly suggests that the
defined terms “persons” and “States” are
mutually exclusive. Accordingly, the
provision creating the Bureau’s authority to
investigate “persons” is silent with respect to
the tribes.
Finally, the district court referenced the lack of any
convincing legislative history bearing on the issue.
CFPB V. GREAT PLAINS LENDING 7
Following the district court’s denying the Tribal Lending
Entities’ petition to set aside the Bureau’s investigative
demands, the Tribal Lending Entities filed a timely notice of
appeal.
II. STANDARD OF REVIEW
We review de novo whether the Bureau plainly lacked
jurisdiction to issue the investigative demands. See Nat’l
Labor Relations Bd. v. Chapa De Indian Health Program
Inc., 316 F.3d 995, 997–98 (9th Cir. 2003).2
III. DISCUSSION
A. The Bureau’s Jurisdiction to Investigate the Tribal
Lending Entities’ Activities
Consistent with their argument before the district court,
the Tribal Lending Entities contend on appeal that the Act
does not confer authority upon the Bureau to investigate tribal
entities. The Tribal Lending Entities repeat their assertion
2
Although the Tribal Lending Entities maintain that the “plainly
lacking” jurisdictional standard is inapplicable, we have consistently
applied this standard in assessing an agency’s jurisdiction at the
investigative stage. See EEOC v. Fed. Express Corp., 558 F.3d 842, 848
(9th Cir. 2009), as amended (“Regarding whether Congress has granted
the authority to investigate, we have emphasized the strictly limited role
of the district court when an agency subpoena is attacked for lack of
jurisdiction. As long as the evidence is relevant, material and there is
some plausible ground for jurisdiction, or, to phrase it another way, unless
jurisdiction is plainly lacking, the court should enforce the subpoena.”)
(citations and internal quotation marks omitted) (emphasis added); see
also Gen. Atomics v. U.S. Nuclear Regulatory Comm’n, 75 F.3d 536, 541
(9th Cir. 1996); Marshall v. Burlington N., Inc., 595 F.2d 511, 513 (9th
Cir. 1979), as amended.
8 CFPB V. GREAT PLAINS LENDING
that the Act limits the Bureau’s authority to “persons,” which
excludes sovereign entities. The Tribal Lending Entities add
that Congress did not intend for the definition of “person” to
encompass tribal entities because the Act explicitly includes
tribes in the definition of “State” in 12 U.S.C. § 5481(27).
Before we address the merits of the Tribal Lending
Entities’ arguments, a delineation of the Act’s statutory
framework is in order. Pursuant to the expressed statutory
purpose of the Act:
The Bureau shall seek to implement and,
where applicable, enforce Federal consumer
financial law consistently for the purpose of
ensuring that all consumers have access to
markets for consumer financial products and
services and that markets for consumer
financial products and services are fair,
transparent, and competitive.
12 U.S.C. § 5511(a). The “primary functions” of the Bureau
include “collecting, investigating, and responding to
consumer complaints,” and, to accomplish its objectives,
“[t]he Bureau is authorized to exercise its authorities under
Federal consumer financial law” to ensure that “consumers
are protected from unfair, deceptive, or abusive acts and
practices and from discrimination.” 12 U.S.C. § 5511(b),
(c)(2). In terms of its enforcement authority,
Whenever the Bureau has reason to believe
that any person may be in possession,
custody, or control of any documentary
material or tangible things, or may have any
information, relevant to a violation, the
CFPB V. GREAT PLAINS LENDING 9
Bureau may, before the institution of any
proceedings under the Federal consumer
financial law, issue in writing, and cause to be
served upon such person, a civil investigative
demand requiring such person to – (A)
produce such documentary material for
inspection and copying or reproduction in the
form or medium requested by the Bureau; (B)
submit such tangible things; (C) file written
reports or answers to questions; (D) give oral
testimony concerning documentary material,
tangible things, or other information; or (E)
furnish any combination of such material,
answers, or testimony.
12 U.S.C. § 5562(c) (emphasis added). The Act defines
“person” as “an individual, partnership, company,
corporation, association (incorporated or unincorporated),
trust, estate, cooperative, organization, or other entity.” 12
U.S.C. § 5481(19).
The Act also addresses the role “States” may play in
supporting the goals of the Act. The Act defines “State” to
include “any State, territory, or possession of the United
States” including “any federally recognized Indian tribe, as
defined by the Secretary of the Interior . . . ,” 12 U.S.C.
§ 5481(27), and compels the Board to “coordinate with . . .
State regulators, as appropriate, to promote consistent
regulatory treatment of consumer financial and investment
products and services.” 12 U.S.C. § 5495. Under the Act,
States are also authorized to “bring a civil action” to enforce
provisions of the Act. The only entities excluded from the
enforcement authority of the state are national banks and
federal savings associations. 12 U.S.C. § 5552(a)(2)(A). No
10 CFPB V. GREAT PLAINS LENDING
entities are expressly excluded from the enforcement
authority of the Bureau. See 12 U.S.C. § 5481(6) (defining
“covered person” without exception).
Because the Act by its terms applies broadly and without
exception, it is properly characterized as a law of general
applicability. See Federal Power Commission v. Tuscarora
Indian Nation, 80 S. Ct. 543, 553 (1960). We have
consistently held that similar laws of general applicability
govern tribal entities unless Congress has explicitly provided
otherwise. Most notably, in Coeur d’Alene, we considered
whether the Occupational Safety and Health Act (OSHA)
applied to tribal entities. See 751 F.2d at 1114–15. We
observed that OSHA’s definition of “employer” as an
“organized group of persons engaged in a business affecting
commerce who has employees” encompassed a tribal farm
operating as a commercial enterprise. Id. at 1115 n.1
(alteration omitted). We recognized that “Congress expressly
excluded only the United States or any State or any political
subdivision of a State from the broad definition of employer
in the Act.” Id. (citation and internal quotation marks
omitted). We explained that:
No one doubts that the Tribe has the inherent
sovereign right to regulate the health and
safety of workers in tribal enterprises. But
neither is there any doubt that Congress has
the power to modify or extinguish that right.
Unlike the states, Indian tribes possess only a
limited sovereignty that is subject to complete
defeasance. . . .
Id. at 1115 (citations omitted). We emphasized that “[m]any
of our decisions have upheld the application of general
CFPB V. GREAT PLAINS LENDING 11
federal laws to Indian tribes; not one has held that an
otherwise applicable statute should be interpreted to exclude
Indians. . . .” Id. (citations omitted). As a result, we
eschewed “the proposition that Indian tribes are subject only
to those laws of the United States expressly made applicable
to them. . . .” Id. at 1116. At the same time, we recognized
the following three exceptions to enforcement of generally
applicable laws against tribes:
A federal statute of general applicability that
is silent on the issue of applicability to Indian
tribes will not apply to them if: (1) the law
touches exclusive rights of self-governance 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 reservations.
Id. (citation, alterations, and internal quotation marks
omitted). “In any of these three situations, Congress must
expressly apply a statute to Indians before we will hold that
it reaches them.” Id. (emphasis in the original).
We have consistently applied Coeur d’Alene and its
progeny to hold that generally applicable laws may be
enforced against tribal enterprises. See Solis v. Matheson,
563 F.3d 425, 432 (9th Cir. 2009) (observing that “[o]ther
cases have similarly affirmed the application of OSHA, the
Employee Retirement Income Security Act (ERISA), and the
Americans with Disabilities Act (ADA) to tribal businesses”)
(citations omitted). In keeping with our precedent, we
similarly conclude that the Consumer Financial Protection
12 CFPB V. GREAT PLAINS LENDING
Act, a law of general applicability, applies to tribal businesses
like the Tribal Lending Entities involved in this appeal. See
Chapa De, 316 F.3d at 1002.
Relying on Vermont Agency of Natural Resources v.
United States ex rel. Stevens, 529 U.S. 765 (2000), the Tribal
Lending Entities contend that our precedent departs from the
United States Supreme Court’s holding that the statutory term
“person” generally excludes sovereign entities, such as states
and Native American tribes. In Stevens, the Supreme Court
considered “whether a private individual may bring suit in
federal court on behalf of the United States against a State (or
state agency) under the False Claims Act.” Id. at 768
(citation omitted). The Supreme Court reasoned that, in
considering application of the False Claims Act to “any
person,” the Court was required to take into account its
“longstanding interpretive presumption that ‘person’ does not
include the sovereign.” Id. at 780 (citations omitted). The
Supreme Court added that “[t]he presumption is particularly
applicable where it is claimed that Congress has subjected the
States to liability to which they had not been subject before.”
Id. at 780–81 (citations and internal quotation marks
omitted). However, “[t]he presumption is, of course, not a
hard and fast rule of exclusion, but . . . may be disregarded
only upon some affirmative showing of statutory intent to the
contrary.” Id. at 781 (citations and internal quotation marks
omitted). The Supreme Court observed that, in “another
section of the [False Claims Act] . . . which enables the
Attorney General to issue civil investigative demands,” the
statute includes a provision “expressly defining ‘person’ for
purposes of this section to include States . . .” Id. at 783–84
(citations and footnote reference omitted). Additionally, the
False Claims Act imposes punitive damages “which would be
inconsistent with state qui tam liability in light of the
CFPB V. GREAT PLAINS LENDING 13
presumption against imposition of punitive damages on
governmental entities. . . .” Id. at 784–85 (citation and
footnote reference omitted); see also Will v. Michigan
Department of State Police, 491 U.S. 58, 67–68 (1989)
(holding that a state is not a “person” under 42 U.S.C. § 1983
because “[i]t is an established principle of jurisprudence that
the sovereign cannot be sued in its own courts without its
consent. . . .”) (citation and internal quotation marks omitted).
At first blush, the Tribal Lending Entities’ reliance on
Stevens, a decision predating our precedent focusing on the
general applicability of the law in question, has surface
appeal. However, the “equivalence” provision in the
Consumer Financial Protection Act only provides definitional
guidance for later references in the statute only to the term
“State.” This “equivalence” provision simply clarifies that
the term “State” includes “any federally recognized Indian
tribe, as defined by the Secretary of the Interior . . .” 12
U.S.C. § 5481(27). It does not expressly provide that tribes
are excluded from the definition of “person” or from the
Bureau’s enforcement authority under the Act. In sum, the
Tribal Lending Entities’ interpretation of the equivalence
provision reads far too much into a simple definition. We are
not persuaded at this stage of the litigation that we should
intervene to nullify the Bureau’s issuance of investigative
demands specifically provided for in the Act on the basis that
jurisdiction is “plainly lacking.” Chapa De, 316 F.3d at
1002.3
3
The Bureau maintains in the alternative that the investigative
demands are enforceable because it is unclear if the Tribal Lending
Entities are actually arms of the tribe. We conclude that, at this
preliminary stage, the record is sufficient to demonstrate that the Tribes
have an interest in challenging the investigative demands based on their
14 CFPB V. GREAT PLAINS LENDING
Furthermore, none of the three Coeur d’Alene exceptions
to the enforcement of generally applicable laws against Indian
tribes apply in this case. See 751 F.2d at 1116. It is
undisputed that the Tribal Lending Entities are engaged in the
business activity of small-dollar lending over the Internet,
reaching customers who are not members of the Tribes, or
indeed, have any relation to the Tribes other than as debtors
to the Tribal Lending Entities. Thus, the first Coeur d’Alene
exception—whether “the law touches exclusive rights of self-
governance in purely intramural matters—does not apply.
Coeur d’Alene, 751 F.2d at 1116 (internal quotation marks
omitted). Unlike the activities of the Housing Authority at
issue in EEOC v. Karuk Tribe Housing Authority, 260 F.3d
1071 (9th Cir. 2001), the small-dollar lending activities in this
case do not touch upon purely intramural matters involving
self-goverance.4 The Tribal Lending Entities do not argue
creation and operation of the Tribal Lending Entities. See Cook v. AVI
Casino, Enter. Inc., 548 F.3d 718, 726 (9th Cir. 2008) (concluding that a
business was an arm of the tribe because it was created “pursuant to a
tribal ordinance . . . and the tribal corporation is wholly owned and
managed by the Tribe”).
4
In Karuk Tribe Housing Authority, 260 F.3d at 1073–74, we
applied the Coeur d’Alene framework to the Karuk Tribe Housing
Authority, a governmental arm of the Karuk Tribe. A member of the
Karuk Tribe filed a complaint with the EEOC, asserting that his
employment with the Housing Authority was terminated in violation of the
Age Discrimination in Employment Act. See id. at 1074. The EEOC
opened an investigation and issued an administrative subpoena seeking
employment records from the Karuk Tribe. The Tribe refused to comply,
disputing the EEOC’s jurisdiction over Indian tribes. See id. at 1074–76.
The EEOC petitioned for enforcement of the subpoena, and the district
court granted the petition. See id. at 1075. On appeal, we applied the
Coeur d’Alene framework, focusing on the first exception in Coeur
d’Alene—whether “the law touches exclusive rights of self-governance in
purely intramural matters.” Id. at 1079 (citation omitted). We noted that
CFPB V. GREAT PLAINS LENDING 15
that the second exception—covering situations in which the
application of a statute would abrogate Indian treaty
rights—applies in this case, so we do not address it here.
With respect to the third exception, the Tribal Lending
Entities’ assertion that the Act’s legislative history supports
a finding of lack of jurisdiction is unpersuasive. In
considering the Coeur d’Alene exception concerning
legislative history, we have explained that for the exception
to apply, “there must be proof that Congress intended the
statute not to apply to Indians on their reservations.” Chapa
De, 316 F.3d at 1000–01 (citation, alteration, and internal
quotation marks omitted). We rejected the tribe’s reliance on
the legislative history of the National Labor Relations Act
(NLRA) because that history failed to reflect that “Congress
intended the NLRA not to apply to Indian tribes” or to the
particular activities of the tribal entity at issue. Id. at 1001.
Ultimately, we determined that despite the existence of one
out-of-circuit case offering some support for the tribe’s
position, the tribe nevertheless failed to demonstrate that
jurisdiction was “plainly lacking.” Id. at 1002 (emphasis in
the original).
the Housing Authority functioned as an arm of the Karuk Tribe and
provided a governmental service—ensuring adequate housing for
members of the Karuk Tribe. See id. at 1080. Moreover, the dispute at
issue was “purely intramural,” because it was between a member of the
Karuk Tribe, and the tribe itself. Id. at 1081. We therefore reversed the
district court’s decision enforcing the subpoena. See id. at 1083. We
considered it relevant that the Housing Authority “is not simply a business
entity that happens to be run by a tribe or its members” and that the
dispute “d[id] not concern non-Karuks or non-Indians as employers,
employees, customers, or anything else.” Id. at 1080–81.
16 CFPB V. GREAT PLAINS LENDING
Here, the Tribal Lending Entities maintain that Congress’
decision to include tribes within the definition of “State” and
not the definition of “person” reflects an intent to exclude
tribes from the Bureau’s enforcement purview. See H.R.
Rep. No. 111-370, 2009 WL 4724255. However, these
attenuated references do not demonstrate that jurisdiction is
“plainly lacking” or that “Congress intended the [Act] not to
apply to Indian tribes, or to [the tribes’] activities.” Chapa
De, 316 F.3d at 1001–02. At best, the referenced report
reflects only the addition of tribes to the definition of “State,”
without any expressed intent to cloak the tribes with
immunity from enforcement of the Act as a generally
applicable congressional enactment. See H.R. Rep. No. 111-
370, 2009 WL 4724255, at *36. In addition, the lack of
immunity is particularly evident in this case because “Indian
tribes do not . . . enjoy sovereign immunity from suits brought
by the federal government.” Karuk Tribe, 260 F.3d at 1075
(citation omitted).
The Tribal Lending Entities also failed to persuasively
establish that Congress intended to exclude tribes from
enforcement of the Act by virtue of the promotion of
cooperation between the States and the federal government.
The statutes relied upon by the Tribal Lending Entities do not
reflect mutual exclusivity of the Bureau’s investigative
authority and the States’ potential co-regulator status. For
example, 12 U.S.C. § 5495 instructs the Bureau to coordinate
with “State regulators, as appropriate . . .” (emphasis added).
Similarly, in support of the Act’s promotion of “consistent
regulatory treatment,” id., 12 U.S.C. § 5512(c)(6)(C)(i)
provides that “a State regulator . . . having jurisdiction over
a covered person . . . shall have access to any report of
examination made by the Bureau with respect to such person
. . .” These coordination provisions of the Act in no way
CFPB V. GREAT PLAINS LENDING 17
restrict the Bureau’s jurisdiction to investigate covered
entities simply because the States have a measure of co-
regulatory status. Indeed, the Act limits the extent of the
States’ co-regulatory authority. By way of example, 12
U.S.C. § 5552(b)(1)(A) forbids a State from initiating
independent court proceedings against a covered entity.
Instead, the State must consult with the Bureau and “timely
provide a copy of the complete complaint to be filed and
written notice describing such action or proceeding to the
Bureau . . .” Upon receiving the requisite notice, the Bureau
may “intervene in the action as a party,” “remove the action
to the appropriate United States district court,” and “be heard
on all matters arising in the action . . .” 12 U.S.C.
§ 5552(b)(2)(B). Moreover, with absolutely no mention of
States or tribes, the Act limits investigative powers, such as
issuance of investigative demands and subpoenas, to the
Bureau. See 12 U.S.C. § 5562(b)–(c).5
The Tribal Lending Entities also argue that limitations
upon the Bureau’s enforcement authority vis-à-vis the States
under 12 U.S.C. § 5517 demonstrate that Congress did not
intend to include States or tribal entities within the definition
of “person.” However, § 5517 does not bolster the Tribal
Lending Entities’ argument, as it merely reflects that when
Congress intended to limit the Bureau’s authority, it did so
explicitly. With great specificity, 12 U.S.C. § 5517 delineates
that the Bureau lacks authority over merchants and retailers
of nonfinancial services and goods, see id., § 5517(a); real
estate brokerage activities, see id., § 5517(b); modular home
5
Nothing we say in this opinion should be construed as a ruling
addressing whatsoever any authority the Bureau may or may not have to
regulate or to direct subpoenas to the State or to State enterprises. That
issue is not before us.
18 CFPB V. GREAT PLAINS LENDING
retailers and manufactured home retailers, see id., § 5517(c);
tax preparers and accountants, see id., § 5517(d); the practice
of law, see id., § 5517(e); and persons regulated by state
insurance and securities commissions. See id., § 5517(f), (h).
Section 5517 also excludes persons regulated by the
Commodities Futures Trading Commission and the Farm
Credit Administration. See id., § 5517(j)–(k). Notably absent
from these extensive exclusions is any mention of tribal
corporate entities. We are persuaded by these provisions that,
had Congress intended to exclude tribal entities from the
Bureau’s enforcement purview, it would have done so
explicitly as it did with other entities.
Davis v. Pringle, 268 U.S. 315 (1925) does not compel a
contrary conclusion. In that case, the Supreme Court rejected
the United States’ priority claim under the Bankruptcy Act
then in effect. See id. at 318–19. The Supreme Court stated
that the United States was not entitled to priority for its
bankruptcy claim because Congress could not have “intended
to smuggle in a general preference by muffled words at the
end” of a statutory provision. Id. at 318. The Supreme Court
noted the “conspicuous mention of the United States . . . at
the beginning of the section and the grant of a limited
priority[.]” Id. The Supreme Court also observed that
“[e]lsewhere in cases of possible doubt when the Act means
the United States it says the United States. . . .” Id. The
Supreme Court did not confront or address the exclusion by
implication argument raised by the Tribal Lending Entities in
this appeal. Rather, in Davis, the Supreme Court construed
a statute that specifically mentioned the United States relative
to the substantive provisions of the bankruptcy priority
framework. See id. That circumstance is vastly different
from relying on the Act’s definitional provisions to cloak
tribal corporate entities with sovereign immunity merely
CFPB V. GREAT PLAINS LENDING 19
because tribes are mentioned in the Act’s definition of
“States.” In any event, the general statutory interpretation
approach expounded in Davis does not in any way undermine
our binding precedent that laws of general applicability may
be enforced against the tribes unless Congress expressly
provides otherwise. See Coeur d’Alene, 751 F.2d at 1115–
16.
Finally, relying on County of Yakima v. Confederated
Tribes and Bands of Yakima Indian Nation, 502 U.S. 251,
269 (1992) and Montana v. Blackfeet Tribe of Indians, 471
U.S. 759, 767–68 (1985), the Tribal Lending Entities assert
that any ambiguity in the Act must be resolved in their favor.
The Supreme Court has recognized that, when confronted
with two plausible statutory constructions, “our choice
between them must be dictated by a principle deeply rooted
in this Court’s Indian jurisprudence: Statutes are to be
construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.” County of Yakima,
502 U.S. at 269 (citation and alteration omitted).
Nevertheless, we have repudiated this presumption in the face
of our governing precedent concluding that to apply the
presumption to laws of general applicability “would be
effectively to overrule, [Coeur d’Alene], which, of course,
this panel cannot do.” Chapa De, 316 F.3d at 999 (citation
omitted).
At this stage of the proceedings, we conclude that the
district court properly held that the Bureau does not plainly
lack jurisdiction to issue investigative demands to the tribal
corporate entities under the Act. See id. at 1002. Although
the Tribal Lending Entities make some appealing arguments,
none of the arguments suffices to breach or evade the barrier
to their success provided by the Coeur d’Alene revetment.
20 CFPB V. GREAT PLAINS LENDING
IV. CONCLUSION
We have consistently held in our post-Stevens precedent
that generally applicable laws apply to Native American
tribes unless Congress expressly provides otherwise. In the
Consumer Financial Protection Act, a generally applicable
law, Congress did not expressly exclude tribes from the
Bureau’s enforcement authority. Although the Act defines
“State” to include Native American tribes, with States
occupying limited co-regulatory roles, this wording falls far
short of demonstrating that the Bureau plainly lacks
jurisdiction to issue the investigative demands challenged in
this case, or that Congress intended to exclude Native
American tribes from the Act’s enforcement provisions.
Neither have the Tribes offered any legislative history
compelling a contrary conclusion regarding congressional
intent. At this stage of the proceedings, we affirm the district
court’s order enforcing the investigative demands against the
Tribal Lending Entities.
AFFIRMED.