The Court at this juncture simply must determine whether Blackfeet Tribal Court “plainly” lacks jurisdiction. The IHS facility sits on leased Indian land. This fact, by itself, amounts to a colorable claim of jurisdiction. The Blackfeet Tribal Court maintains a colorable claim of jurisdiction based on the alleged conduct on tribal trust land. This determination precludes analysis at this point as to whether either Montana exception provides a colorable basis for Blackfeet Tribal Court jurisdiction. Admiral Ins. Co. v. Blue Lake Rancheria Tribal Ct., 2012 WL 1144331 (N.D. Cal. 2012).
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 adecision 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 reasonablereading 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.
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.
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.
#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.
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:
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).
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