Genuine tribal businesses are entitled to ‘tribal immunity,’ meaning they can’t be sued,” Bailey wrote in a blog post. “If a payday lender can shield itself with tribal immunity, it can keep making loans with illegally-high interest rates without being held accountable for breaking state usury laws.”
Bailey said in one common type of arrangement, the lender provides the necessary capital, expertise, staff, technology, and corporate structure to run the lending business and keeps most of the profits. In exchange for a small percent of the revenue (usually 1-2%), the tribe agrees to help draw up paperwork designating the tribe as the owner and operator of the lending business.
“Then, if the lender is sued in court by a state agency or a group of cheated borrowers, the lender relies on this paperwork to claim it is entitled to immunity as if it were itself a tribe,” Bailey wrote. “This type of arrangement — sometimes called ‘rent-a-tribe’ — worked well for lenders for a while, because many courts took the corporate documents at face value rather than peering behind the curtain at who’s really getting the money and how the business is actually run.