The Skull Valley Band of Goshute Indians hoped that investing in private capital could bolster its pursuit of self-determination. But now the federally recognized Native American tribe is calling for a boycott against U.S. Bank, the institution they once entrusted to oversee their investments.
The boycott comes two years after the Utah-based tribe lodged a complaint in the New York Supreme Court alleging that U.S. Bank stole over $50 million by failing to pay the tribe investment profits to which it was entitled. In a June press release announcing the boycott, tribe chairperson Candace Bear called U.S. Bank’s alleged actions “financial genocide.”
“We rely exclusively on investments like the trusts administered by U.S. Bank to ensure the daily needs of our members are provided for,” Bear said. “Anyone doing business with this bank is providing tactical support and encouragement for these devastating actions impacting our Tribe.”
Situated on an arid expanse of land beneath the shadow of Utah’s Stansbury Mountains, the Skull Valley Indian reservation was once home to a bison field and root vegetable crops. Today, the reservation is surrounded by waste facilities, dealing with the impacts of the pandemic and an ongoing opioid crisis, and home to a sparse population of 25 tribal residents, a quarter of whom live below the poverty line, according to census data.
With a determined vision of economic sovereignty in mind, tribal leaders in the 1990s invested in REMIC pooled mortgage trusts managed by U.S. Bank, according to the complaint. The tribe was a residual interest holder in the trusts; unlike regular holders, they were not guaranteed payments. Instead, they were only entitled to profits arising from any assets that remain after regular holders and other stakeholders had been paid.
This was a precarious position to be in. Residual interests lack the safety net of Ginnie Mae and thus are generally considered unattractive to investors. But desperate for an entry into economic development, the tribe pursued the deal.
In January 2020, the tribe and 16 affiliated LLCs sued U.S. Bank for breach of contract, demanding $50 million in damages. After terminating the trust, the 2020 complaint alleges, U.S. Bank first purchased the remaining trust assets at a price less than the fair market value, sold them at a far higher rate, and ultimately kept the profits for itself instead of disseminating them to the tribe. According to their agreement, U.S. Bank should have sold the remaining trust assets and paid the tribe the profits it was owed for its investment. U.S. Bank had a right to terminate the trust, but not to withhold profits from residual holders, the tribe said.
U.S. Bank has not issued a statement in response to the tribe’s boycott nor responded to requests for comment.
This wasn’t the first time the banking behemoth has faced complaints from tribes. In 2014, U.S. Bank paid a settlement to a couple on the Turtle Mountain Reservation who said their loan application was denied because their property was within a Native American reservation. In 2019, the Narragansett Indian Tribe unsuccessfully sued the bank on the validity of a foreclosure on a property it was gifted.
Other banks have also faced allegations of financial malpractice from tribes, including the Navajo Nation’s 2017 settlement with Wells Fargo for “predatory and unlawful practices.”
Financial barriers
Although tribes are supposed to be guaranteed sovereignty, systemic legal and financial barriers have complicated tribal rights to self-determination.
“Tribes are desperate for economic activity,” said Robert Miller, a professor focusing on Indigenous law issues at Arizona State University’s Sandra Day O’Connor College of Law. “Indian people as an ethnic racial group are the poorest people in the United States … This is one problem all tribal governments face. They need revenue to run programs to build housing to do health care, education, you name it. How do governments do what they do? Well, they do it based on tax base, and most reservations have no tax base.”
Because of the disincentivizing factor of dual taxation, which imposes federal and tribal taxes on non-tribe members doing business on the reservation, tribes are often unable to build a tax base, leaving them with no option but to pursue private investments as a revenue vehicle to fund their governments.
As a result, tribes have turned to eclectic routes, from payday lending to gaming to leasing land to outside businesses. But experts say tribes often have trouble accessing private capital because of strict requirements, prohibiting some lenders from entering business deals with tribes. Deals that do go through often favor the interests of powerful outside players over the material needs of tribes.
Jurisdictional uncertainty and tribal sovereign immunity make many businesses reluctant to engage with tribal governments, said Adam Crepelle, the director of the tribal law program at George Mason University, and banks that do enter deals routinely challenge tribal court jurisdiction.
“Let’s say if a tribe or even an individual Indian does a contract with a bank, and let’s say something goes south, where do you find the breach of contract claim? Do you file it in state court or tribal board? Just dealing with this could take a couple years just to figure out where to litigate,” Crepelle said. “So that increases the transaction cost, and nobody wants to deal with that.”
Miller said some businesses will ask tribes to waive their immunity before entering deals. In many cases, local laws further inhibit economic growth. In Utah, where laws prohibit the gambling industry that’s allowed other tribes to flourish, tribes face even bleaker prospects for economic development.
Desperate for financial opportunities while facing a housing shortage and lack of jobs, Skull Valley tribal leaders have pursued a range of bold economic development strategies. In the 1990s and 2000s, tribal leaders pursued a controversial plan to store nuclear waste on the reservation. A deal was nearly reached to lease land to a consortium of utility companies. But concerns about health and ecological hazards sparked a debate upon tribe members at the crossroads of environmental justice and tribal economic development. After internal division and backlash from elected state officials, the project was canceled in 2012.
Impact
Today, tribal leaders continue to pursue economic development initiatives in hopes of revitalizing the reservation. The tribe houses the Tekoi landfill and has signaled to state governments a desire to pursue projects including a health care facility and a solar power site on the reservation. But Skull Valley leaders say the loss of returns on investments impacts tribes already in a precarious position.
Crepelle said the structure of laws and business practices often undercut tribal sovereignty and economic opportunity.
“If you don’t have any businesses, or nowhere for people to work, it’s really hard to sustain your community,” Crepelle said. “And that’s something we continuously see. Tribal citizens, particularly those who get educated, tend to move away because there just aren’t the opportunities on the reservation. And over time, if everybody moves away, you know, that’s fine, in one sense, but it also makes it really hard to maintain your tribal identity.”
The case has now been transferred to the court’s commercial division and is awaiting further proceedings.
