In re Mayes

Decision Date11 June 2003
Docket NumberBankruptcy No. 02-70643.,BAP No. EO-02-067.
Citation294 B.R. 145
PartiesIn re Robin Carter MAYES, also known as Robin C. Mayes, Debtor. Robin Carter Mayes, Appellant, v. Cherokee Nation, Appellee. Eastern Shoshone Tribe of the Wind River Reservation, Amicus Curiae.
CourtU.S. Bankruptcy Appellate Panel, Tenth Circuit

Terry D. Bigby, Tahlequah, Oklahoma, for Appellant.

Julian K. Fite and Richard D. Osburn, Tahlequah, Oklahoma, for Appellee.

Jerome L. Levine, Maita Deal Prout, and James K. Kawahara of Holland and Knight LLP, Los Angeles, California, filed an amicus curiae brief for Eastern Shoshone Tribe of the Wind River Reservation.

Before McFEELEY, Chief Judge, BOULDEN, and NUGENT, Bankruptcy Judges.


NUGENT, Bankruptcy Judge.

This appeal presents a question of tribal sovereign immunity to certain proceedings in bankruptcy. The debtor Robin Carter Mayes ("Appellant") appeals from the bankruptcy court's Order denying his Motion to Avoid Judicial Lien and granting the Cherokee Nation's ("Appellee") Motion to Dismiss Debtor's Motion to Avoid Judicial Lien on the ground that Appellee was immune from suit. The issue presented is whether a motion to avoid an Indian nation's judicial lien pursuant to 11 U.S.C. § 522(f)(1)(A)1 constitutes a "suit," and is thereby subject to the common law doctrine of tribal sovereign immunity. We conclude that in bankruptcy, a motion to avoid a lien is a "suit," and that in the absence of an "unequivocal waiver" of immunity, an Indian nation is immune from suit under common law tribal immunity. We AFFIRM the bankruptcy court.

Appellate Jurisdiction

The Bankruptcy Appellate Panel has jurisdiction over this appeal. The Appellant timely filed his notice of appeal, and the parties have consented to this Court's jurisdiction by failing to elect to have the appeal heard by the United States District Court for the Eastern District of Oklahoma.2

The Order is a final, appealable order under 28 U.S.C. § 158(a)(1) because it conclusively determines and disposes of Appellant's Motion to Avoid Judicial Lien and Appellee's Motion to Dismiss.3

Standard of Review

The application of tribal sovereign immunity is a question of law subject to de novo review by this Court.4

Factual Background

The facts in this appeal are undisputed. In October 2001, the Appellee obtained a judgment against Appellant in the amount of $4,417.82.5 Thereafter, Appellee recorded its judgment, and in accordance with Oklahoma law, the judgment became a lien upon Appellant's real property — his homestead.

In February 2002, the Appellant filed his Chapter 7 bankruptcy petition. Appellant claimed the real property exempt as his homestead.6 On March 28, 2002, Appellant filed a Motion to Avoid Judicial Lien ("Avoidance Motion"), seeking to avoid the Appellee's judgment lien on his exempt homestead.7 Appellant served his Avoidance Motion on Appellee by regular mail, addressed to Cherokee Nation at a post office box.8 Nothing in the record suggests that prior to receiving the Avoidance Motion, Appellee had filed a proof of claim or otherwise participated in the Appellant's bankruptcy case in any way. In response to the Avoidance Motion, the Appellee filed a Special Entry of Appearance and Motion to Dismiss Debtor's Motion to Avoid Judicial Lien ("Dismissal Motion"), asserting sovereign immunity.

The bankruptcy court set a briefing schedule on the Appellee's Dismissal Motion, and the parties thereafter submitted briefs. The Appellant asserted two objections to the Dismissal Motion: (1) his Avoidance Motion was not a "suit" against Appellee and therefore sovereign immunity was inapplicable; and (2) even if the Avoidance Motion was a "suit," Congress abrogated the Appellee's sovereign immunity by its enactment of § 106(a).

After taking the matter under advisement, the bankruptcy court entered its Order on August 21, 2002, granting the Dismissal Motion and denying the Appellant's Avoidance Motion. The bankruptcy court concluded that the Avoidance Motion was a suit for purposes of sovereign immunity9 and, relying on our prior decision in Straight v. Wyoming Department of Transportation (In re Straight), that Section 106(a) is an unconstitutional abrogation of sovereign immunity.

This appeal followed. On appeal, Appellant asserts as the sole error the bankruptcy court's conclusion that his Avoidance Motion was a "suit" for purposes of sovereign immunity. Because Appellant does not challenge the bankruptcy court's conclusion that § 106(a) is an unconstitutional abrogation of sovereign immunity, the Appellant is deemed to have abandoned this argument.10

While this appeal was pending, this Court issued an order requesting supplemental briefing on the question of whether the Appellee had waived sovereign immunity by initiating the state court lawsuit that gave rise to its judgment and judgment lien. Both Appellant and Appellee submitted supplemental memoranda on this point.


The bankruptcy court held that the Avoidance Motion was a "suit" barred under sovereign immunity arising under the Eleventh Amendment. While, for the reasons stated herein, we agree with this conclusion, we think it is necessary to first clarify that Appellee's immunity arises not under the Eleventh Amendment, but rather under federal common law. Common law tribal immunity, however, applies the same requirement of the existence of a "suit," and for the reasons discussed, we agree with the bankruptcy court that Appellant's Avoidance Motion is a "suit" from which Appellee is immune. These issues are discussed below.

Tribal Sovereign Immunity

The doctrine of tribal immunity developed under federal common law and is similar, but not identical, to the sovereign immunity of States as preserved by the Eleventh Amendment. Tribal immunity is described in Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering:11

The common law sovereign immunity possessed by the Tribe is a necessary corollary to Indian sovereignty and self-governance. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Of course, because of the peculiar "quasi-sovereign" status of the Indian tribes, the Tribe's immunity is not congruent with that which the Federal Government, or the States, enjoy. And this aspect of tribal sovereignty, like all others, is subject to plenary federal control and definition. See Santa Clara Pueblo v. Martinez, supra, 436 U.S., at 58, 98 S.Ct., at 1677. Nonetheless, in the absence of federal authorization, tribal immunity, like all aspects of tribal sovereignty, is privileged from diminution by the States.12

The Supreme Court drew a further distinction between state sovereign immunity and tribal sovereign immunity in Kiowa Tribe v. Manufacturing Technologies, Inc.:13

We have often noted, however, that the immunity possessed by Indian tribes is not coextensive with that of the States.... [W]e distinguished state sovereign immunity from tribal sovereign immunity, as tribes were not at the Constitutional Convention. They were thus not parties to the "mutuality of ... concession" that "makes the States' surrender of immunity from suit by sister States plausible." So tribal immunity is a matter of federal law....14

Although the Supreme Court has distinguished between tribal and state sovereign immunity, it has long recognized that Indian tribal immunity is similar in scope to that enjoyed by the states.15 For this reason, we find the case law defining and interpreting "suit" as contained in the Eleventh Amendment16 instructive and persuasive in the context of matters against Indian tribes in bankruptcy.17

The Avoidance Motion is a "Suit" Barred by Tribal Sovereign Immunity

Before deciding whether a lien avoidance application is a "suit" for immunity purposes, we consider the nature of a lien avoidance action in bankruptcy. Ordinarily, prepetition liens pass through a bankruptcy case unaffected.18 In the absence of a lien avoidance action, a secured creditor may look to the property securing the claim for satisfaction of its prepetition lien, but may not look to the debtor personally for payment.19 Moreover, liens that are not avoided may be enforced against exempt property.20 Thus, absent lien avoidance, a judgment lien creditor may look to exempt property to satisfy its judgment lien. A successful lien avoidance action effectively divests a creditor of its lien to the extent that it impairs an exemption.

Here, the Appellant's Avoidance Motion is brought pursuant to § 522(f)(1), which provides in pertinent part:

Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is — (A) a judicial lien....21

Under the Bankruptcy Code, a lien avoidance application brought pursuant to § 522(f) is a "contested matter" and not an adversary proceeding.22 Unlike an adversary proceeding, a contested matter is initiated by filing a motion rather than a complaint.23 While no summons is issued and served upon the "defendant" in a contested matter, service of a pleading initiating a contested matter is made in the same manner as service of a summons and complaint in an adversary proceeding.24

The different procedural treatment of § 522(f) lien avoidance actions (contested matters) from all other lien avoidance actions (adversary proceedings) is explained by one bankruptcy commentator as follows:

Rule 4003(d) is a recognition that in the vast majority of cases brought under section 522(f) the proceeding is not contested, and that even if there is a contest, the issue usually a relatively simple question of valuation. The rule thus distinguishes these proceedings from the exercise of the avoiding powers under...

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    ...Indian tribes, with respect to application of the enumerated sections of the Bankruptcy Code”). See also, In re Mayes, 294 B.R. 145, 157–60 (10th Cir.2003) (McFeeley, J., dissenting) (arguing that 11 U.S.C. § 106(a) abrogates tribal sovereign immunity, reasoning, in part, that “if the phras......
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    ...seems to this court that ‘other domestic government’ is broad enough to encompass Indian tribes.”); In re Mayes, 294 B.R. 145, 157–60 (10th Cir. [BAP] 2003) (McFeeley, J., dissenting) (arguing that § 106(a) does abrogate tribal sovereign immunity); In re Vianese, 195 B.R. 572, 575 (Bankr.N.......
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