GM 15-070

Court Upholds Tribal Sovereign Immunity in Fair Credit Reporting Act Case

On September 4, 2015, a federal district court ruled that tribal sovereign immunity barred a class action lawsuit against the Oneida Tribe of Wisconsin under the Fair Credit Reporting Act (the “Act”) and the Fair and Accurate Credit Transactions Act (which is an amendment to the Act). In Meyers v. Oneida Tribe of Indians of Wisconsin, 1:15-cv-00445 (E.D. Wis., 2015), the plaintiff said he had bought items at the Tribe’s retail stores and that the stores had printed receipts displaying more than the last five digits of the plaintiff’s credit card number and the expiration date, which would constitute a violation of the Act.

The Act authorizes damages when a “person” violates the Act. Under the Act, a “person” is defined as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” The definition does not include Indian tribes. The plaintiff contended that the Act’s definition of person is broad enough to include Indian tribes.

The court rejected that argument on three grounds.

First, the court found that the Seventh Circuit Court of Appeals’ decision in Bormes v. United States, 759 F.3d 793 (7th Cir. 2014) is not applicable to Indian tribes. In Bormes, the Seventh Circuit ruled that the Act’s definition of “person” was broad enough to include the United States, even though the United States is not specifically mentioned. The court concluded that even though “any … government” includes the U.S., it does not include an Indian tribe because of the canon of construction that requires that ambiguities in statutes are to be read in favor of Indian tribes and also because Congress did not unequivocally state that it was waiving tribal sovereign immunity.

Second, the court considered two cases construing the term “governmental unit” under the U.S. Bankruptcy Code. The definition of governmental unit in the Code includes “other foreign or domestic government.” In Kryztal Energy Co. v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), the Ninth Circuit Court of Appeals held that when Congress used the phrase “other foreign or domestic government” that it meant to include Indian tribes and thus waived their sovereign immunity. That decision conflicts with the Eighth Circuit Court of Appeals’ decision in In re Whittaker, 474 B.R. 687 (8th Cir. BAP 2003) in which the court held that Congress did not unequivocally express Congress’s intent to waive tribal sovereign immunity. The court weighed the two cases and found that the Eighth Circuit’s analysis of congressional intent was more persuasive.
Third, the court rejected the argument that the Act is a law of general applicability and thus incudes Indian tribes. The court distinguished Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989) on the grounds that Smart dealt with the applicability of the Employee Retirement Income Security Act (ERISA), a law of general applicability to an Indian tribe, but did not involve the question at hand which is whether a tribe may be sued under the law.

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