Feller et al v. Narragansett Indian Tribal Historic Preservation Office
Filing
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OPINION AND ORDER granting 12 Motion to Remand to State Court. This case is REMANDED to the Vermont Superior Court, Rutland Unit, Civil Division. Signed by Judge Geoffrey W. Crawford on 5/10/2016. (esb)
U.S. DISTRicT tOlJRT
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
GEORGE FELLER and WILLOW FELLER,
Plaintiffs,
v.
NARRAGANSETT INDIAN TRIBAL
HISTORIC PRESERVATION OFFICE,
Defendant.
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DISTRICT OF VERMONT
FILED
2016 HAY 10 PH 2: 06
Case No. 5:16-cv-61
OPINION AND ORDER ON MOTION TO REMAND
(Doc. 12)
On February 18,2016, Plaintiffs George Feller and Willow Feller filed an action in
Vermont Superior Court, Rutland Unit, Civil Division, against Defendant Narragansett Indian
Tribal Historic Preservation Office (NITHPO), alleging that NITHPO had failed to make
payments required by a commercial promissory note, and seeking to foreclose upon a mortgage
securing that note. (Doc. 1-1; Doc. 4.) On March 7, 2016, NITHPO filed a Notice of Removal
in this court, asserting subject-matter jurisdiction on the grounds that "there is a federal question
arising out of a dispute from a private party against a federally recognized tribe, tribal
governmental entity or agent, and under federal common law regarding the jurisdiction ofIndian
Tribal court." (Doc. 1 ~ 4.)1 Plaintiffs have filed a Motion to Remand the case back to state
court under 28 U.S.C. § 1447(c), arguing that NITHPO has presented no federal question and
1 The Notice of Removal was filed by John Brown, Tribal Historic Preservation Officer
for NITHPO "pro se." (Doc. 1 at 2.) Brown has filed a Notice of Appearance for Self
Represented Litigant NITHPO. (Doc. 10.) Although no party has briefed the issue, it appears
that federally-recognized Native American tribal governments and their agencies may enjoy an
exception to the general rule prohibiting organizations from appearing pro se. See Fraass
Survival Sys., Inc. v. Absentee Shawnee Ecan. Dev. Auth., 817 F. Supp. 7,11 (S.D.N.Y. 1993)
("Indian tribal governments and their agencies do not fit well under the general rule against pro
se representation by non-individuals, for several reasons.").
that NITHPO cannot rely on diversity jurisdiction because the maximum amount in controversy
is the amount ofthe underlying note: $30,000. (Doc. 12.) NITHPO opposes remand. (Doc. 13.)
Analvsis
Under 28 U.S.C. § 1447(c), federal district courts must remand a removed case "[i]fat
any time before final judgment it appears that the district court lacks subject matter jurisdiction."
NITHPO argues that the court has federal-question jurisdiction under 28 U.S.C. § 1331, which
grants the district courts with "original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties ofthe United States." According to NITHPO, this case is such a
civil action because:
It is about land now owned by an Indian Tribal Government, the right of an Indian
tribe to be heard by a court of competent jurisdiction, a non-governmental party
attempting to attach the federal contracts and federal contract support dollars of a
tribal government or tribal governmental entity for the purpose of payment, the
failure of the Plaintiff to exhaust tribal remedy and lastly the immunity of
Defendant from suit.
(Doc. 13 at
l.i
"Despite the pervasive influence of federal law in Indian affairs, federal court jurisdiction
over cases involving Indians and Indian affairs is not automatic." Cohen's Handbook ofFederal
Indian Law § 7.04[IJ[a] (Nell Jessup Newton ed., 2012). "[F]ederal court jurisdiction is not
ereated by the mere fact that a case involves an Indian party or contract, or tribal or individual
Indian property, or merely because it arises in Indian country." Id. (footnotes omitted). Federal
2 NITHPO also contends that the court has jurisdiction under 28 U.S.C. § 1362, which
provides: "The district courts shall have original jurisdiction of all civil actions, brought by any
Indian tribe or band with a governing body duly recognized by the Secretary of the Interior,
wherein the matter in controversy arises under the Constitution, laws, or treaties of the United
States." Section 1362 is unlikely to be an independent basis for jurisdiction because by its tenus
it applies to actions brought by tribes, not against them. See Enter. Elec. Co. v. Blaclifeet Tribe
ofIndians, 353 F. Supp. 991, 992-93 (D. Mont. 1973). In any case, § 1362 still requires a
controversy that arises under the Constitution, laws, or treaties of the United States, so the
analysis would be the same as under § 1331.
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question jurisdiction under § 1331 "attaches to a claim only ifthe federal question appears on the
face of plaintiff's 'statement of his own claim in the bill or declaration, unaided by anything
alleged in the anticipation or avoidance of defenses which it is thought the defendant may
interpose.'" /d. (quoting Okla. Tax Comm'n v. Graham, 489 U.S. 838, 841 (1989)). Federalquestion jurisdiction also extends to:
claims based on federal common law, including cases involving property claims
based on aboriginal title, challenges to the exercise of state authority in Indian
country, breach of trust claims against the federal government, and claims that the
exercise of tribal authority impermissibly exceeds the federal common-law limits
imposed by the Supreme Court.
Id. (footnotes omitted). In such cases, "federal common law must actually provide the basis for
the cause of action asserted." Id.
Here, the court can discern nothing from the face of Plaintiffs' Complaint (Doc. 5) that
suggests any federal question. The Complaint seeks foreclosure of real property-an action and
a remedy that is a matter of state law. See Wells Fargo Bank, NA. v. Stephens, No. 3: 14-cv
1982 (VLB), 2015 WL 6551782, at *2 (D. Conn. Oct. 29,2015) (foreclosure complaint raised no
issue of federal law); CountryWide Home Loans, Inc. v. Young, No. 2: 13-cv-50, 2013 WL
1386289, at *1 (D. Vt. Apr. 4,2013) (no basis for federal-question jurisdiction because
foreclosure complaint cited no provision of federal law and suggested no form of federal cause
of action); First Horizon Home Loans v. Ng, No. 09 Civ. 7274(SCR)(PED), 2010 WL 4258752,
at *1 (S.D.N.Y. Apr. 12,2010), adopted 2010 WL 4258523 (S.D.N.Y. Oct. 27, 2010)
(foreclosure action on real property based on breach of a mortgage contract did not appear to
present any federal question). NITHPO's assertions to the contrary are unpersuasive.
NITHPO asserts that there is a federal question because NITHPO is a federallyrecognized tribe, tribal government, entity, or agent. (Doc. 1 ~ 4.) However, as noted above,
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jurisdiction does not attach just because a case involves an Indian party. NITHPO contends that
there is a federal question because this case "is about land now owned by an Indian Tribal
Government." (Doc. 13 at 1.) Again, as noted above, federal court jurisdiction is not created
just because a case involves tribal property. NITHPO further argues that there is federal
jurisdiction because the case involves "a non-governmental party attempting to attach the federal
contracts and federal contract support dollars of a tribal government or tribal governmental entity
for the purpose of payment," because Plaintiffs have failed to exhaust tribal remedies, and
because of immunity from suit. (Id.) All of those arguments concern potential defenses; to the
extent they involve federal questions, those issues do not appear on the face of Plaintiffs'
Complaint.
NITHPO maintains that the court has jurisdiction because there is a dispute "under
federal common law regarding the jurisdiction of the Indian Tribal court." (Id.) According to
NITHPO, this case involves a question about "the right of an Indian tribe to be heard by a court
of competent jurisdiction." (Doc. 13 at 1.) NITHPO relies upon Luckerman v. Narragansett
Indian Tribe, 965 F. Supp. 2d 224 (D.R.I. 2013), reconsideration denied, 965 F. Supp. 2d at 231,
further reconsideration denied, No. CA 13-185-S, 2014 WL 575725 (D.R.I. Feb. 11,2014),
appeal dismissed, 787 F.3d 621 (1st Cir. 2015). In that case, the Tribe's fonner attorney,
Douglas Luckennan, sued the Tribe in state court for breach of contract. The Tribe removed the
case to federal court and filed a motion to dismiss, arguing that the case fell within the
jurisdiction of its tribal court. Luckennan opposed the Tribe's motion, and moved to remand the
case to state court. Luckerman, 965 F. Supp. 2d at 226.
The District Court began its analysis by addressing the Tribe's motion to dismiss. It
reasoned that the question of whether an Indian tribe retains the power to compel a non-Indian to
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submit to the jurisdiction of a tribal court was a question of federal law. Id. The court therefore
concluded that it had federal-question jurisdiction to detennine the extent of the tribal court's
jurisdiction over Luckennan's claims, and also the Tribe's assertion of sovereign immunity. !d.
After analyzing sovereign immunity and tribal exhaustion, the District Court denied the Tribe's
motion to dismiss, denied Luckennan's motion to remand as moot, and stayed the case pending
adjudication in tribal court. Id. at 231.
In this case, NITHPO has not filed a motion to dismiss; the only motion now pending is
Plaintiffs' Motion to Remand. Even ifNITHPO had filed a motion to dismiss on the grounds of
immunity or exhaustion, the court would respectfully decline to follow the order of analysis
perfonned by the District Court in Luckerman. The court cannot adjudicate those potential
defenses if it lacks subject-matter jurisdiction. See Bergman v. Spruce Peak Realty, LLC,
847 F. Supp. 2d 653,662 (D. Vt. 2012) (noting that, "[o]rdinarily, subjeet matter jurisdiction
must 'be established as a threshold matter'" (quoting Steel Co. v. Citizens for a Better Env 't,
523 U.S. 83,94-95 (1998))). No disputes about exhaustion or immunity appear on the face of
Plaintiffs' Complaint. If there is an issue of federal eommon law in this case, it does not provide
a basis for Plaintiffs' foreclosure cause of action. The court therefore concludes that it lacks
subject-matter jurisdiction, and that remand under 28 U.S.C. § 1447(c) is required.
Conclusion
For the above reasons, Plaintiffs' Motion to Remand (Doc. 12) is GRANTED, and this
case is REMANDED to the Vennont Superior Court, Rutland Unit, Civil Division.
Dated at Rutland, in the District ofVennont, this
1 day of May, 2016.
D
Geoffrey W. Crawford, Judge
United States District Court
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