tribal court exhaustion doctrine – Page 13

Federal Court Interprets New Western Sky/CashCall Arbitration Language to Allow for Outside Arbitrator

March 18, 2015Matthew L.M. Fletcher

Here are the materials in Williams v. CashCall (E.D. Wis.):

4 CashCall Motion to Dismiss or Compel Arbitration

An excerpt:

So why didn’t the court appoint an arbitrator in Jackson? The court there held that the arbitration provision (like the one signed by Ms. Walker) was void “because it provides that a decision is to be made under a process that is a sham from stem to stern.” 764 F.3d at 779. Not only was there no authorized representative of the Tribe to preside over the proceeding, “the Tribe has no rules for the conduct of the procedure.” Id. (emphasis in original). By providing the option of using the consumer dispute rules of the AAA or JAMS, Mr. Williams’s contract solves that problem. And by allowing the parties to use an arbitrator from either the AAA or JAMS systems, the bias concerns that the Jackson court had about using a Tribal member as the arbitrator, id. at 779-80, are eliminated.

Mr. Williams’s only argument as to why the arbitration provision is unenforceable is that it calls for the arbitrator to apply Tribal law, which he contends is law that does not exist. (ECF No. 16 at 9.) But that is not true, as evidenced by substantive Tribal law on contract disputes, including contract cases in the Tribe’s courts, and the Tribe’s Commercial Code, Rules of Civil Procedure, Constitution and By-Laws, and Law & Code. (ECF Nos. 12-4, 12-5, 12-6, 12-7, 12-8, 21.) Mr. Williams does not raise any of the procedural or substantive unconscionability concerns expressed by the court in Jackson.

The most reasonable reading of Mr. Williams’s loan agreement is that he has the option of choosing to arbitrate any claims that he has relating to his agreement before the AAA, JAMS, or another mutually acceptable organization, applying the consumer dispute rules of the selected administering organization and conducted by an arbitrator from the selected organization’s system. Therefore, unlike Ms. Walker, Mr. Williams is required to pursue his claims against CashCall in arbitration. His complaint shall be dismissed.

Federal Court Holds Tribal Exhaustion Doctrine Does Not Apply to ERISA Claims

March 18, 2015March 17, 2015Matthew L.M. Fletcher

Here are the materials in Coppe v. Sac & Fox Casino Healthcare Plan (D. Kan.):

9 Sac and Fox Motion to Dismiss

13 Response

14 Reply

15 DCT Order

An excerpt:

This case is now before the court upon a motion to dismiss or stay for failure to exhaust tribal remedies. The motion is brought by defendant Sac & Fox Casino Healthcare Plan. This motion asks the court to rule as a matter of comity that before bringing a claim in this court, plaintiff must bring an ERISA action for recovery of insurance benefits under the casino’s nongovernmental plan in tribal court. We assume for purposes of this order that plaintiff is not a member of the Sac & Fox Tribe and that the Plan is not a “governmental plan” as defined in ERISA. We hold that Congress has preempted the tribe’s adjudicatory authority over ERISA claims and, therefore, exhaustion of tribal remedies is not required.

Employee Case Dismissed for Failure to Exhaust Tribal Remedies

February 16, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Resources for Indian Student Education Inc. v. Cedarville Rancheria of Northern Pauite Indians (E.D. Cal.):

14-1 Cedarville Motion to Dismiss

15-2 Cedarville Motion for Sanctions

18 Cedarville Tribal Court Motion to Dismiss

24 RISE Opposition to Rancheria Motion to Dismiss

25 RISE Opposition to Motion for Sanctions

26 RISE Opposition to Tribal Court Motion to Dismiss

29 Rancheria Reply

30 Tribal Court Reply

33 DCT Order

Western Sky-Related Debt Collector Successfully Compels Arbitration in Virginia Case

January 22, 2015January 22, 2015Matthew L.M. Fletcher2 Comments

Here are the materials in Hayes v. Delbert Services Corp. (E.D. Va.):

An excerpt:

This matter cornes before the Court on the defendant’s motion [2] to dismiss the amended complaint or, alternatively, to compel arbitration. (Dk. No. 30.) The plaintiffs, borrowers from internet payday lender Western Sky Financial, LLC, brought this action on behalf of themselves and others similarly situated against Delbert Services Corporation, a third-party debt collecter. The plaintiffs allege Delbert violated the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer Protection Act (“TCPA”) in the course of its collection efforts. Delbert moves to dismiss based on the Loan Agreements’ forum-selection clause or on the basis of the tribal exhaustion doctrine. Alternatively, Delbert moves to compel arbitration.

The forum-selection clause does not reach third-party debt collectors such as Delbert, and the doctrine of tribal exhaustion does not apply under the facts of this case. The language of the arbitration agreement, however, covers disputes with third-party debt collectors.

Accordingly, the Court GRANTS the motion to compel arbitration under the terms of the Loan Agreement and DISMISSES the claim without prejudice.

Who Won American Indian Law and Policy, 2014, Second Round, Bracket 2 of 4

January 8, 2015January 7, 2015Matthew L.M. Fletcher

Now we move on to the Category 2 quarterfinals.

#1 Indian Child Welfare Act v. #9 Indian country voting rights

The litigation and public policy juggernaut that is ICWA defeated federal Indian preemption(the previous generation’s juggernaut) with 64 percent of the vote. Indian country voting rights prevailed over Rule 19 with 62 percent of the vote. Where my Rule 19 peeps?

This one is an old-fashioned clash of civil rights.

#4 Indian gaming v. #5 Intra-tribal disputes

Indian gaming beat out internet gaming, barely, with only 90 percent of the vote. In a battle of bad news, intra-tribal disputes knocked out human trafficking with 2/3 of the vote.

Great match-up here. Can we have one without the other? Well, looking back at the ICRA cases of the 1970s, I’d say we don’t need much to generate intra-tribal disputes, heh heh.

#2 Tribal sovereign immunity v. #7 American Indian education

Sovereign immunity beat out alternative energy with 92 percent of the vote. Did it use a sword or a shield? Education, we all need, won with 63 percent; climate change, we don’t need it, was a no-show.

Which came first, immunity or the knowledge that sovereigns are immune? Bill Wood knows, I bet.

#3 VAWA v. #6 Tribal court exhaustion

VAWA took three-quarters of the vote from criminal sentencing. Can’t sentence without convicting first, right?Tribal court exhaustion won almost as easily, with 72 percent of the vote over the new general welfare legislation. Ironically, tribal court exhaustion is all about adjudicating even without jurisdiction. Now I’m confused.

Suit against Western Sky/Butch Webb to Proceed

January 7, 2015Matthew L.M. Fletcher

Here are the materials in Scherr v. Western Sky Financial (N.D. Ill.):

40-1 Western Sky Motion to Dismiss

47 Response

48 Western Sky Reply

51 DCT Order

Who Won Indian Law and Policy in 2014? First Round Bracket — 4 of 8

January 6, 2015January 7, 2015Matthew L.M. Fletcher3 Comments

Whew, losing steam. Maybe finish round 1 tomorrow.

Here’s the second half of the Category 2 bracket.

# 2 Tribal sovereign immunity

Big winner in the Supreme Court.And perhaps SCOTUS has had its fill by denying some petitions, here, here (filed out of time), and here, and here.

Some other good cases for tribes: no waiver in gaming compact (California), and Minnesota, immunity from state tax foreclosures, immunity from third party subpoenas in federal court litigation, immunity of tribally owned payday lenders, and immunity from simple contract claims.

Some where tribal interests lost: waiver through removal to federal court, waiver by virtue of not being sufficiently governmental, waiver by Congress in Bankruptcy Act, waiver by purchase of insurance, no immunity of tribal governmental organizations, and no immunity from tribal court exhaustion.

And no, Western Sky is not immune from suit.

v.

# 15 Alternative energy

Solar power is controversial at Colorado River Indian Tribes, and wind energy at Osage. So quit messing with mineral estates and sacred sites, please!

# 7 American Indian education

2014 was the 60th year since Brown v. Board, and so Indian law programs are hosting conferences on Indian education (MSU, Kansas, and now Arizona State but that’s 2015). Dept. of Education did a listening tour. Cobell money. BIE reorganizing.

# 10 Climate Change

Seems odd to seed this so low, but there’s no significant litigation out there pending (unless the Court grants cert in this), no administrative or legislative action. Depressing. There’s this:

Guidelines for Considering Traditional Knowledges in Climate Change Initiatives

UPDATE: Also, there’s this:

2014-12-24 FR CEQ NEPA draft climate effects guidance

# 3 Violence against Women Act

Good news in Alaska. Pascua going ahead full steam. Even Harvard paid attention. 2015 is when others can move ahead.

# 14 Indian criminal sentencing

Sentencing disparities are prevalent. USSG is paying attention. CA8 Judge Bright believes this issue to be the biggest issue he faces.

# 6 Tribal court exhaustion

A solid year for tribal court exhaustion. Penobscot. Thlopthlocco Tribal Town. Caddo. Rosebud Sioux, twice.

# 11 Tribal General Welfare Exclusion Act

Here.

Eighth Circuit Rules Omaha Indian Reservation Not Diminished

December 19, 2014Matthew L.M. Fletcher3 Comments

Here is the opinion. An excerpt:

Based upon the record evidence, the district court in this matter has done just that–accurately discerned the contemporaneous intent and understanding of the 1882 Act. The court carefully reviewed the relevant legislative history, contemporary historical context, subsequent congressional and administrative references to the reservation, and demographic trends, and did so in such a fashion that any additional analysis would only be unnecessary surplus. Ever mindful to “resolve any ambiguities in favor of the Indians,” there is nothing in this case to overcome the “presumption in favor of the continued existence” of the Omaha Indian Reservation. Yankton Sioux Tribe, 522 U.S. at 344 (quotation omitted); Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985, 991 (8th Cir. 2010) (quotation omitted).

Briefs here.

Lower court materials here.

Split Ninth Circuit Panel Dismisses Uncounseled ICRA Habeas Claim for Failure to Exhaust Tribal Remedies

December 8, 2014December 8, 2014Matthew L.M. Fletcher2 Comments

Here are the materials in Alvarez v. Tracy:

Alvarez v. Tracy (9th 2014)

Appellant brief

Answer brief

Reply Brief

From the court’s syllabus:

The panel affirmed the district court’s denial of a habeas corpus petition brought pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303 (ICRA), and 28 U.S.C. § 2241, in which Fortino Alvarez challenged convictions and sentences imposed by the Gila River Indian Community tribal court.
The panel declined to exercise jurisdiction over Alvarez’s claims and affirmed the denial of the habeas petition because Alvarez failed to exhaust his claims by bringing them first to the tribal courts, and did not demonstrate that unavailability or futility of direct appeal excuses the exhaustion requirement or that the Community’s appeals process did not comply with the ICRA.

Although the Community failed to raise Alvarez’s lack of direct appeal in its motion to dismiss, the panel considered the defense under Wood v. Milyard, 132 S. Ct. 1826 (2012), and Granberry v. Greer, 481 U.S. 129 (1987), and concluded that the strong comity and judicial efficiency interests at stake warrant federal abstention.

Dissenting, Judge Kozinski wrote that the majority does not live up to its solemn responsibility to appear impartial, when it forgives the Community, which was represented by counsel, for failing to raise an exhaustion defense in district court or on appeal, but holds Alvarez to his single oversight of failing, while unrepresented before the Community court, to raise his jury trial and confrontation claims by way of a direct appeal. On the merits, Judge Kozinski would find that the Community violated Alvarez’s right to a jury trial under ICRA by failing to inform him that he needed to request a jury, a structural error fatally undermining the conviction.

Judge Kozinski added:

I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly believe is right. But we see the world very differently.

Federal Court Orders Exhaustion of Tribal Remedies in Suit against Penobscot Corporation

December 1, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Rassi v. Federal Program Intergrators LLC (D. Me.):

An excerpt:

I conclude that the sovereign immunity of the Penobscot Indian Nation does extend to FPI, but that FPI waived its immunity by adopting the “sue and be sued clause” in § 12.07 of its Operating Agreement, as required by 13 C.F.R. § 124.109(c)(1) in order for FPI to participate I the § 8(a) program. Nevertheless, I conclude that the tribal exhaustion doctrine applies to this case. The case is ORDERED STAYED with regard to FPI pending a determination by the tribal court as to its jurisdiction, and if necessary, an adjudication of the case on its merits. After the tribal court has ruled on the issue of its jurisdiction, and, if necessary, adjudicated the case on the merits, either party may return to this court and request that the stay be lifted. It is further ORDERED that all claims against PINE are DISMISSED, without prejudice.