In 2014, Jeremy Meyers used his credit card to make purchases at the Green Bay Oneida Travel Center and Oneida One Stop retail locations, owned and operated by the federally‐recognized Oneida Indian tribe. He received electronically printed receipts that included more than the last five digits of his credit card and the card’s expiration date.
Meyers alleged, in a putative class action filed in April 2014, that the Tribe issued these receipts in violation of the Fair and Accurate Credit Transaction Act, which states that “[n]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction, 15 U.S.C. 1681c(g)(1).” FACTA defines a person as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.”
U.S. District Judge William C. Griesbach granted the tribe’s motion to dismiss the suit in September 2015, finding Congress did not waive Native American tribes’ immunity in the FCRA because the tribes are not mentioned in the statute. The district court also found Meyers failed to state a claim because he did not suffer an injury from the information being printed on the receipts.
Meyers appealed the district court decision, arguing that Native American tribes should be treated as governments under FACTA, claiming the court made previous exceptions to sovereign immunity in similar cases and separately found that immunity is not available to “any government” under the FCRA.
The tribe argued that because the Fair and Accurate Credit Transactions Act does not specifically mention Native Americans, U.S. District Judge William C. Griesbach rightly tossed the suit in September, and courts are prohibited from assuming Congress wanted to undermine sovereign immunity unless that intention is made plain.
“Congress did not clearly, unequivocally and unambiguously reference Indian tribes when it enacted the FCRA and FACTA and, therefore, it has not evinced an intent to waive a tribe’s sovereign immunity,” the tribe said in its brief.
The Oneida tribe also argued that substantial statutory damages from the proposed class action would affect the tribe’s right to self-governance and deprive the tribal treasury of essential funds for member services. The tribe also contended that if Congress intended FACTA to apply to them, it would have explicitly included Native American tribes under the amendment’s definition of “person,” as it did in the Fair Debt Collection Practices Act, but Meyers contends that precedent shows otherwise.
The Seventh Circuit affirmed, noting that whether a tribe is subject to a statute and whether the tribe may be sued for violating the statute are two different questions. Any ambiguity must be resolved in favor of immunity; “government or governmental subdivision or agency” does not unambiguously refer to tribes.
“Meyers argues that the district court dismissed his claim based on its erroneous conclusion that Indian tribes are not governments … [but] misses the point,” the circuit court panel said. “The district court did not dismiss his claim because it concluded that Indian tribes are not governments. It dismissed his claim because it could not find a clear, unequivocal statement in FACTA that Congress meant to abrogate the sovereign immunity of Indian tribes.”