Tempest Recovery Services, Inc. v. Belone

• Decision Date: 10 June 2003
• Docket Number: No. 27,749.,27,749.
• Citation: 2003 NMSC 19,134 N.M. 133,74 P.3d 67
• Parties: TEMPEST RECOVERY SERVICES, INC., Plaintiff-Appellee, v. Leonard BELONE, Defendant-Appellant.
• Court: New Mexico Supreme Court

74 P.3d 67

134 N.M. 133

2003 NMSC 19

TEMPEST RECOVERY SERVICES, INC., Plaintiff-Appellee, v. Leonard BELONE, Defendant-Appellant.

No. 27,749.

Supreme Court of New Mexico.

June 10, 2003.

Louis J. Vener, Albuquerque, NM, for Appellee.

Joel R. Jasperse, Gallup, NM, for Appellant.

OPINION

EDWARD L. CHÁVEZ, Justice.

{1} Plaintiff-Appellee Tempest Recovery Services, Inc. (Tempest) repossessed Defendant-Appellant Leonard Belone's (Belone) vehicle from his residence outside the Navajo Nation reservation boundaries on allotted Indian land in McKinley County, New Mexico. The principal question presented to this Court is whether the tribal court civil jurisdiction of the Navajo Nation extends beyond reservation boundaries to allotted Indian lands. In General Motors Acceptance Corp. v. Chischilly, 96 N.M. 113, 115, 628 P.2d 683, 685 (1981), this Court held that the territorial jurisdiction of the Navajo Nation did not extend to allotted Indian lands for purposes of civil jurisdiction and, therefore, Navajo law did not apply to repossessions occurring outside of Indian reservations. However, because United States Supreme Court precedent since Chischilly applies the definition of "Indian Country" in 18 U.S.C. § 1151 (2000) to civil matters, we now overrule Chischilly and hold that tribal court civil jurisdiction extends to allotted land within Indian Country. Accordingly, we reverse and remand this case to state district court to determine whether Navajo law applies to Belone's wrongful repossession counterclaim.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Belone is an enrolled member of the Navajo Nation who resides outside Navajo Nation reservation boundaries on allotted Indian lands in McKinley County. More specifically, Belone resides on Allotment No. 01058, allotted Indian land that is held in trust by the United States Department of Interior Bureau of Indian Affairs. Belone's allotment is considered part of the Rock Springs Navajo community, over which the Navajo Nation asserts jurisdiction, provides services, and organizes local government subdivisions.

{3} Mr. Belone purchased a car in Chambers, Arizona from Midway Resale Outlet (Midway). Midway financed Belone's purchase and acquired a security interest in Belone's car. Midway subsequently assigned Belone's retail installment contract to Tempest, a New Mexico corporation licensed to do business as a collection agency. Thereafter, Belone defaulted by failing to make payments as required under the contract. Tempest's agents entered Belone's allotment and, without Belone's written consent or a Navajo tribal court order, repossessed Belone's car.

{4} Tempest filed suit in state district court, alleging a breach of contract claim against Belone for the deficiency. Belone counterclaimed alleging that Tempest breached the peace by repossessing his vehicle without his written consent or a tribal court order, and that he was entitled to damages under Navajo law. Tempest argued that its repossession of Belone's car is governed by New Mexico law and was not a breach of the peace because NMSA 1978, § 55-9-503 (repealed 2001) of the Uniform Commercial Code gave Tempest the right to self-help repossession. Both parties sought summary judgment.

{5} Under New Mexico law, repossession of goods upon default is permissible without the consent of the debtor. Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without a breach of the peace.¹ Section 55-9-503. The Navajo law on repossession, which is provided for in the Navajo Nation Code, requires creditors, absent the written consent of the consumer, to seek judicial process for the return of secured collateral as follows:

The personal property of Navajo Indians shall not be taken from the territorial jurisdiction of the Navajo Nation under the procedures of repossession except in strict compliance with the following:

A. Written consent to remove the property from the territorial jurisdiction of the Navajo Nation shall be secured from the Navajo purchaser at the time repossession is sought. The written consent shall be retained by the creditor and exhibited to the Navajo Nation police officer or official upon proper demand.

B. Where the Navajo purchaser refuses to sign said written consent to permit removal of the property from the jurisdiction of the Navajo Nation, the property shall be removed only by order of a District Court of the Navajo Nation in an appropriate legal proceeding.

Nation Code tit. 7, § 607 (1995). In the event of unlawful repossession, Nation Code tit. 7, § 609 (1995) provides that the wronged purchaser may recover damages as follows:

A. Any person who violated 7 NNC § 607 and any business whose employee violates such section is deemed to have breached the peace of the Navajo Nation, and shall be civilly liable to the purchaser for any loss caused by the failure to comply with 7 NNC §§ 607-609.

B. If the personal property repossessed is consumer goods ..., the purchaser has the right to recover in any event an amount not less than the credit service charge plus 10% of the principal amount of the debt or the time price differential plus 10% of the cash price.

{6} The retail installment contract provides that the contract shall be governed by the laws of the State of Arizona. However, the contract goes on to read that "if Property is repossessed, then the law of the state where the property is repossessed will govern the repossession." Therefore, whether the civil jurisdiction of the tribal court extends beyond the Navajo Nation reservation boundaries into Indian allotment lands will be analyzed under New Mexico law, the state where the repossession took place. See NMSA 1978, § 55-1-105 (2001) ("[E]xcept as provided in this section, when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or such other state or nation shall govern their rights and duties."). We note that the Navajo Nation has a similar choice-of-law provision. See Nation Code tit. 5A, § 1-105 (1995). The McKinley County district court applied our holding in Chischilly, and granted Tempest's motion for summary judgment against Belone for $18,212.41 and denied Belone's motion for summary judgment. Belone appealed to the Court of Appeals, which certified the case to us to determine whether Chischilly is still good law. We overrule Chischilly because the Supreme Court has unequivocally applied § 1151's definition of Indian Country to civil as well as criminal matters since Chischilly was decided. We hold that the allotted land from which Belone's vehicle was repossessed is Indian Country which would confer concurrent jurisdiction in the Navajo Nation to Belone's wrongful repossession counterclaim.

DISCUSSION

I. Standard of Review

{7} At issue is whether the district court erred by granting Tempest's motion for summary judgment and denying Belone's motion for summary judgment under Rule 1-056 NMRA 2003. We review the district court ruling de novo because summary judgment involves a question of law. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003, ¶ 7, 130 N.M. 25, 16 P.3d 1084. "Summary judgment under Rule 1-056 `is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.'" Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, ¶ 9, 124 N.M. 633, 954 P.2d 65 (quoting Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992)). "On appeal, a reviewing court will consider the whole record for evidence that places a material fact at issue." Id. Here, the facts are undisputed. The parties stipulate that Tempest repossessed Belone's car from allotted Indian lands without a Navajo tribal court order and without Belone's written consent.

II. We overrule General Motors Acceptance Corp. v. Chischilly

{8} Indian Country is defined at 18 U.S.C. § 1151, which provides:

[T]he term `Indian country'... means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

(emphasis added). This section of the United States Code at Title 18 addresses federal crimes and criminal procedure. In Chischilly, we chose not to extend the § 1151(c) "pattern of jurisdiction into the civil area." 96 N.M. at 115, 628 P.2d at 685.

{9} Chischilly, which is factually similar to the present case, also concerned the repossession of a vehicle on land included in the § 1151 definition of Indian Country. In finding that § 1151 defined Indian Country for criminal jurisdiction purposes only, we were unpersuaded by Chischilly's argument that the Supreme Court's footnote in DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975), provided authority to extend the § 1151 definition to civil jurisdiction matters. Chischilly, 96 N.M. at 115, 628 P.2d at 685. The relevant part of this footnote reads: "While § 1151 is concerned, on its face, only with criminal jurisdiction, the [Supreme] Court has recognized that it generally applies as well to questions of civil jurisdiction." DeCoteau, 420 U.S. at 427 n. 2, 95 S.Ct. 1082. This Court held that the DeCoteau footnote was ambiguous and the cases cited as authority for it did not refer to any civil application of § 1151. Chischilly, 96 N.M. at 115, 628 P.2d at 685. We were concerned...