Williams-Willis v. Carmel Financial Corp.

139 F.Supp.2d 773

Martha WILLIAMS-WILLIS, Plaintiff, v. CARMEL FINANCIAL CORPORATION, and Fictitious Defendants "A", "B" and "C"; Whether Singular or Plural, Those Other Persons, Corporations, Firms, or Other Entities Whose Wrongful Conduct Caused or Contributed to Cause the Injuries and Damages to the Plaintiff, All of Whose True and Correct Names are Unknown to Plaintiff at this Time, But Will be Substituted by Amendment When Ascertained, Defendants.

No. CIV. A. 4:00CV171LN.

United States District Court, S.D. Mississippi, Eastern Division.

February 20, 2001.

Carl Bryant Rogers, Roth, Van Amberg, Rogers, Ortiz, Fairbanks & Yepa, LLP, Santa Fe, NM, Brian D. Dover, Jordan & Dover, Philadelphia, MS, for Plaintiff.

Vann Fredric Leonard, Vann F. Leonard, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, Chief Judge.

Plaintiff Martha Williams-Willis has filed a motion to dismiss, or alternatively, to remand this case to the Tribal Court of the Mississippi Band of Choctaw Indians (Choctaw Tribal Court), from which it was removed by defendant Carmel Financial Corporation (Carmel). Carmel has responded in opposition to the motion, and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that plaintiff's motion is well taken and should be granted.

On August 23, 1996, plaintiff, an enrolled member of the Mississippi Band of Choctaw Indians, purchased a satellite dish for her home on the Choctaw Reservation, which she financed through a credit card issued by Dow Financial, a credit service of AMcore Consumer Finance Co., Inc. Subsequently, Carmel entered into an asset purchase agreement with AMcore which covered certain installment contracts for satellite dishes, including plaintiff's. Thereafter, on August 18, 2000 plaintiff filed this lawsuit in the Choctaw Tribal Court seeking damages and injunctive relief based on allegations that the salesman who solicited her purchase of the satellite system concealed and fraudulently failed to disclose material information regarding the credit transaction, including the nature of the credit, the number of payments, the amount of each payment, the amount financed, the total finance charge, the total of payments and the total sales price. On October 11, 2000, Carmel removed the case to this court on the basis of federal question jurisdiction, asserting that plaintiff's allegations stated claims arising under the Truth in Lending Act, 15 U.S.C. § 1601 et seq.

In her motion to remand, plaintiff contends that defendant's removal, purported to have been effected pursuant to 28 U.S.C. § 1441, is improper inasmuch as § 1441 provides only for removal from a "state court" and does not authorize removal from tribal court. Indeed, as plaintiff notes, the courts and commentators that have addressed this issue have concluded that § 1441 does not allow for removal from tribal court. See Weso v. Menominee Indian School Dist., 915 F.Supp. 73, 76 (E.D.Wis.1995) (concluding that "the statutory language of 28 U.S.C. § 1441(a) limiting removal to actions commenced in `State courts' does not extend to an action originally commenced in [tribal court]. When Congress intended to extend § 1441 to an entity other than courts of the fifty states, it has done so expressly."); Gourneau v. Love, 915 F.Supp. 150, 152-53 (D.N.D.1994) ("Congress has never enacted legislation either bringing tribal courts within the meaning of `state court' in § 1441 or separately authorizing the removal of actions brought in tribal courts. To the extent that this is a close question, it must be resolved against removal in light of the United States Supreme Court's ... strong policy that federal courts should, as a matter of comity, permit actions commenced in Tribal court to proceed there."); White Tail v. Prudential Ins. Co. of America, 915 F.Supp. 153-54 (D.N.D.1995) ("[T]here is no ambiguity in the text of 28 U.S.C. § 1441; it refers specifically to state courts and to state courts only. The court must also strictly construe the removal statute ... [W]hen Congress has decided to bring other non-federal courts within the ambit of § 1441, it has enacted legislation expressly doing so... Congress has never enacted legislation ... authorizing the removal of actions brought in Tribal courts."); 29A Fed. Proc., Lawyer's Edition 2d § 69:9 (West 1998) ("Federal courts should, as a matter of comity, permit actions commenced in a Native American tribal court to proceed there. Thus, in the absence of legislation either bringing tribal courts within the meaning of `state court' in 28 USCA § 1441 or separately authorizing the removal of actions brought in tribal courts, a tribal court is not a state court for purposes of § 1441."); Frank Pommersheim, "Our Federalism" in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts' Teaching and Scholarly Community, 71 U. Colo. L.Rev. 123, 160 (Winter 2000) ("The plain language of [§ 1441] makes no reference to tribal courts and would appear to foreclose removal of a federal claim asserted in tribal court to federal court.");¹ Pace, Julie A., Enforcement of Tribal Law in Federal Court: Affirmation of Indian Sovereignty or a Step Backward Towards Assimilation, 24 Ariz. St. L.J. 435, 464 (Spring 1992) ("Tribal courts are neither mentioned in the legislative history nor in the removal statute. When Congress has been faced with the issue of removal of cases from non-state courts, it generally has enacted a statute that expressly provides for removal from those specific jurisdictions. Such express congressional intent to allow cases to be removed from tribal courts to federal courts appears to be lacking."); cf. Becenti v. Vigil, 902 F.2d 777, 780 (10th Cir.1990) (holding that 28 U.S.C. § 1442(a)(1), which includes language limiting removal to actions commenced in "State court," does not extend to an action in the tribal court, reasoning that "where Congress has intended to permit removal from courts other than state courts it has expressly said so.").

In response to plaintiff's motion, Carmel has cited no case in which any court has held or suggested that removal from tribal court is authorized under § 1441 (and the court is aware of none). It does suggest that the Supreme Court in El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999), "opened the door to consideration of removal" of a case from tribal court even in the absence of a statute authorizing such removal; but this court, having carefully reviewed the Neztsosie opinion, perceives no such opening² and is instead of the view that there can be no proper removal from tribal court under § 1441. For that reason, plaintiff's request for remand is well taken.

Her motion is well taken for the further reason that this case, even if properly removed, should be remanded since it is subject to the tribal exhaustion rule. Under the tribal exhaustion rule, as formulated by the Supreme Court in National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), and Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), "when a colorable claim of tribal court jurisdiction has been asserted, a federal court may (and ordinarily should) give the tribal court precedence and afford it a full and fair opportunity to determine the extent of its own jurisdiction over a particular claim or set of claims." Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth., 207 F.3d 21, 31 (1st Cir. 2000); see also Bowen v. Doyle, 230 F.3d 525, 529 (2d Cir.2000) ("when the jurisdiction of the tribal court is challenged, `the Tribal Court itself' must be permitted to determine the issue `in the first instance.'") (quoting National Farmers, 471 U.S. at 856, 105 S.Ct. 2447, 85 L.Ed.2d 818); Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe, 117 F.3d 61, 65 (2d Cir. 1997) (under the doctrine of exhaustion of tribal remedies, "parties who challenge, under federal law, the jurisdiction of a tribal court to entertain a cause of action must first present their claim to the tribal court before seeking to defeat tribal jurisdiction in any collateral or parallel federal court proceeding.").

The tribal exhaustion requirement is not jurisdictional, but rather is a "prudential" rule pursuant to which a federal court, in view of comity considerations, "should to stay its hand `until after the Tribal Court has had a full opportunity to determine its own jurisdiction.'" Strate v. A-1 Contractors, 520 U.S. 438, 449, 117 S.Ct. 1404, 1411, 137 L.Ed.2d 661 (1997) (quoting National Farmers, 471 U.S. at 857, 105 S.Ct. at 2454); Iowa Mutual, 480 U.S. at 16 n. 8, 107 S.Ct. at 976 n. 8 (stating that "[e]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite"). This rule is based on "the Federal Government's longstanding policy of encouraging tribal self-government," Iowa Mutual, 480 U.S. at 14, 107 S.Ct. at 975, and "reflects the fact that Indian tribes retain `attributes of sovereignty over both their members and their territory' to the extent that sovereignty has not been withdrawn by federal statute or treaty," id, at 14, 107 S.Ct. at 975 (quoting United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)); see also National Farmers, 471 U.S. at 856, 105 S.Ct. at 2454 ("Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination."). Thus, while the federal courts ultimately have jurisdiction to determine the limits of a tribal court's jurisdiction, the tribal exhaustion rule holds that tribal courts, which "play a vital role in tribal self-government," must be permitted the first opportunity to resolve challenges to their jurisdiction without federal court interference.³ Iowa Mutual, 480 U.S. at 14, 107 S.Ct. at 976; Str...