* C ircuit Judge, U.S. Court of Appeals for the Eighth Circuit,

sitting by designation.

1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

Consolidated Cases Nos. 01-60228, 01-60229, 01-60230,

01-60231, 01-60232, 01-60233, 01-60234,01-60235,

01-60236, 01-60237, 01-60238

___________________________

BANK ONE, N.A.,

Plaintiff-Appellant,

VERSUS

MYRA MAE SHUMAKE, DARLENE VAUGHN, ANDIA WILLIAMSON, KARREN SAM,

VIRGINI A WILLIS, WILLIE WILLIS, LAVERN WILLIS, BRAINARD LEWIS,

a/ k/a Brianard Lewis, ROBIN WILLIS, DANITA WILLIS; KIRBY WILLIS,

DINA THOMAS AND ROSE WILLIS,

Defendants-Appellees.

___________________________________________________

Appeals from the United States District Court

for the Southern District of Mississippi

____________________________________________________ February 15, 2002

Before KING, Chief Judge, and DAVIS and MAGILL, * Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Bank One challenges the district court’s dismissal of its suit

to compel arbitration. Bank One contends that the reasoning of the

U.S. Supreme Court’s decision in El Paso Natural Gas Co. v.1 526 U.S. 473, 119 S.Ct. 1430 (1999).

2 9 U.S.C. §§ 1-16

.

2 Neztsosie 1 requires us to con clude that the tribal exhaustion

doctrine should not apply to suits to compel arbitration under the

Federal Arbitration Act. 2 For the reasons that follow, we

disagree. We therefore affirm the district court’s order

dismissing Bank One ’s action for failure to exhaust tribal

remedies.

I.

In March 1995, a door-to-door salesman sold hom e satellite

systems to several members of the Choctaw Indian tribe at their

homes on the Choctaw Indian Reser vation in Mississippi. The

salesmen arranged to allow the purchaser to use credit provided by

Bank One. Bank One required prospective purchasers (“Cardmembers”)

to complete and execute a Credit Application, accompanied by a

R evolving Credit Card Plan and Disclosure Statement (the

“Cardmember Agreement”), and a Security Agreement. The application

provided that extensions of credit would be deemed to occur in

Ohio.

In March 1998, Bank One contends it notified its Cardmembers

of a modification to the Cardmember Agreement that inserted an

arbitration clause requiring that all disputes be resolved by

arbitra tion pursuant to the Federal Arbitration Act (FAA). Some

members of the Tribe contend that they did not receive the3

modification.

In the summer of 2000, several members of the Mississippi Band

of Choctaw Indians, including Myra Rae Shumake, sued Bank One in

the Tribal Court of the Mississippi Band of Choctaw Indians

(“Tribal Court”) seeking damages and injunc tive relief. The

complaints alleged that Bank One financed the transaction through

“bogus” credit cards, and that it concealed and failed to disclose

material information regarding the credit transaction.

Upon receipt of notice of the Tribal Court actions, Bank One

promptly filed suits in the federal district court under § 4 of the

FAA against each Cardholder seeking to compel arbitration of their

Tribal Court claims, asserting that those claims are subject to a

valid and binding arbitration agreement. The Cardholders

immediately moved for dismissal of Bank One’s district court action

or remand to the Tribal Court, arguing that the tribal exhaustion

doctrine requires federal courts to allow tribal courts to have the

first opportunity to rule on the question of its jurisdiction. The

district court found that the tribal exhaustion doctrine applied to

these cases and dismissed Bank One’s suits so that the Tribal Court

could first address the question of its jurisdiction.

Bank One appeals the dismissals, contending that the district

court inappropriately applied the tribal exhaustion doctrine to

these FAA cases and that the arbitration clause in the contract

waived any right to tribal exhaustion. The cases have been3 See, e.g., Safety National Casualty Corp. v. Bristol-Myers

Squibb Co.

, 214 F.3d 562, 564 (5th Cir. 2000); citing Black Sea

Inv. Ltd. v. United Heritage Corp , 204 F.3d 647, 649-50 (5th Cir.

2000); M urphy v. Uncle Ben's, Inc.

, 168 F.3d 734, 737 (5th Cir

. 1999); Sutter Corp. v. P & P Indus., Inc. , 125 F.3d 914, 917 (5th

Cir. 1997).

4 471 U.S. 845, 105 S.Ct. 2447 (1985).

4 consolidated on appeal.

II.

The standard of review of district court decisions to stay or

dismiss proceedings on abstention grounds is abuse of discretion,

but to the extent that such a decision rests on an interpretation

of law, our review is de novo. 3

III.

A.

We turn first to Bank One’s arg ument that the tribal

exhaustion doctrin e should be inapplicable to actions to compel

arbitration under the FAA. In considering this issue, we first

review the Supreme Court cases on the tribal exhaustion doctrine.

The Supreme Court established the doctrine in National Farmers

Union Insurance Co. v. Crow Tribe

. 4 In that case, a Crow Indian

minor was struck by a motorcycle in the parking lot of a school

owned by the state, but located on the Crow Indian Reservation.

The minor’s parents sued the school district in tribal court and

obtained a default judgment. The school district and its insurer

then filed suit in federal court seeking an injunction against5 See id. at 852-53.

6 Id. at 857 n.21. The other two exceptions--bad faith or lack

of opportunity to challenge the tribal court’s jurisdiction--do not

apply here.

5 execution of the judgment and further proceedings in tribal court

on t he theory that the tribal court lacked subject matter

jurisdiction in civ il actions against non-tribe members under 28

U.S.C. § 1331. The district court granted the injunction, but a

divided panel of the Ninth Circuit reversed.

The Supre me Court held that as a threshold matter, federal

courts may determine whether a tribal court has exceeded its lawful

jurisdiction because the extent of tribal sovereignty is a matter

of federal law for the purposes of § 1331. 5 The Supreme Court

held, however, that so long as “the action is not patently

violative of express jurisdictional prohibitions,” 6 the first

examination of tribal court jurisdiction should take place in the

tribal court rather than in federal court.

We believe that exa mination should be conducted in the

first instance in the Tribal Court itself. Our cases have

often recognized that Congress is committed to a policy

of supporting tribal self-government and selfdetermination. That policy fa vors a rule that will

provide the forum whose jurisdiction is being challenged

the first opportunity to evaluate the factual and legal

bases for the challenge. Moreover the orderly

administration of justice in the federal court will be

served by allowing a full record to be developed in the

Tribal Court before either the merits or any qu estion

concerning appropriate relief is addressed. The risks of

... [a] “procedural nightmare" ... will be minimized if

the federal court stays its hand until after the Tribal

C ourt has had a full opportunity to determine i ts own7 Id. at 856-57.

8 480 U.S. 9, 107 S.Ct. 981 (1987).

6 jurisdiction and to rectify any errors it may have made. 7

The next important Supreme Cou rt decision on the tribal

exhaustion doctrine is Iowa Mutual Insurance Co. v LaPlante

, 8 in

which the Court extended the doctrine to diversity cases. In that

case, LaPlante, a member of the Blackfeet Indian Tribe filed suit

for personal injuries in tribal court against his employer, a ranch

located on the Reservation. He also sued the ranch’s insurer for

bad faith refusal to settle. The tribal court ruled that once

LaPlante amended his complaint to allege facts on which to base

jurisdiction, it would entertain jurisdicti on over the action.

Iowa Mutual then sued the LaPlantes, the ranch, and its owners, in

federal district court alleging diversity of citizenship under 28

U.S.C. § 1332 as the basis of jurisdiction, and seeking a

declaration that it had no duty to defend or indemnify the ranch or

its owners because the injuries fell outside the policy. The

district court dismissed the action, holding t hat it lacked

jurisdiction beca use the tribal court must be given the first

opportunity to determine its own jurisdiction. The Ninth Circuit

affirmed.

The Supreme Court concluded that the district court did not

lack subject matter jurisdiction but that “the federal policy

supporting tribal self-government directs a federal court to stay9 Id. at 16, quoting National Farmers at 857.

10 Id. at 14, 107 S.Ct. at 975 (citations omitted).

11 Id. at 15

.

12 I d. at 18, q uoting Merrion v. Ticarilla Apache Tribe

, 455

U.S. 130, 149 n.14 (1982).

7 its hand in order to give the tribal court a ‘full opportunity to

d etermine its own jurisdiction.’” 9 The Court noted that it had

“repeatedly recognized the Federal Government’s longstanding policy

of encouragi ng tribal self-government.... Tribal courts play a

vital role in tribal self-government, a nd the Federal Government

has consistently encouraged t heir development.” 1 0 The Court

extended the doctrine to diversity cases because when “state-court

jurisdiction over Indians or activities on Indian lands would

interfere with tribal sovereignty and self-government, state courts

are gen erally divested of jurisdiction as a matter of federal

law.” 11

The Court held that the sovereignty of tribal courts can only

be impaired by an express indication of Congressional intent.

“Because the Tribe retains all inherent attributes of sovereignty

that have not been divested by the Federal government, the proper

inference from silence

... is that the sovereign power

... remains

intact.” 12 In response to the argument that the tribe lacked

authority over non-members on the reservation, the Court responded

that “[t]ribal authority over the activities of non-Indians on13 Id.

, citing Montana v. U.S.

, 450 U.S. 544, 565-66 (1981).

Although tribes usually do not have jurisdiction over non-Indians

for activities off the reservation or Indian-fee land, M ontana

noted several exceptions. As a threshold inquiry under the tribal

exhaustion doctrine, we must determine whether the tribal court’s

jurisdiction is explicitly limited. M ontana limits it in many

situations. One of its exceptions, however, applies here: “A tribe

may regulate, thr ough taxation, licensing, or other means, the

activities of nonmembers who enter into consensu al relationships

with the tribe or its members, through commercial dealing,

contracts, leases, or other arrangements.” M ontana at 565; see

also TTEA v. Ysleta del Sur Pueblo

, 181 F.3d 676, 684 (5th Cir.

1999).

14 526 U.S. 473 (1999)

.

15 42 U.S.C. § 2210

.

8 reservation lands is an important part of tribal sovereignty.” 13

B.

This brings us to the most recent Supreme Court case, the

primary basis of Bank One’s argument. In E l Paso Natural Gas v.

Neztsosie

, 14 two members of the Navajo Nation sued El Paso in tribal

court for compensatory and punitive damages under Navajo tort law

for injuries arising from exposure t o radioactive and other

hazardous materials. El Paso sued in the district court to enjoin

the Neztsosies from pursuing their claims in tribal court. The

district court denied the injunctions under the tribal exhaustion

doctrine except to the extent that the claims fell under the PriceAnderson Act, 15 but allowed the tribal court to determine in the

first instance whether the claims fell under Price-Anderson. The

Ninth Circuit modified the order to permit the Tribal Court to

resolve all issues.16 Id. at 484 (internal citations omitted).

17 Id. at 485-86.

18 Neztsosie , 526 U.S. at 487.

9The Supreme Court reversed as to the claims under the PriceAnderson Act and concluded that petitione rs were not entitled to

pursue their Price-Anderson Act claims in Tribal Court. The Court

found that the case differed from National Farmers and Iowa Mutual

because “[b]y its unusual preemption provision,

the Price-Anderson Act transforms into a federal action

"any public liability action arising out of or resulting

from a nuclear incident[.]" The Act not only gives a

district court origi nal jurisdiction over such a claim

but provides for removal to a federal court as of right

if a putative Price-Anderson action is brought in a state

court. Congress thus expressed an unmistakable preference

for a f ederal forum, at the behest of the defending

party, both for litigating a Price-Anderson claim on the

merits and for determining whether a claim falls under

Price-Anderson when removal is contested. 16

Given the preemptive scope of the Price-A nderson Act, the Court

held that “[a]ny generalized sense of comity toward nonfederal

courts is obviously displaced by the provisions for preemption and

removal from state courts, which are thus accorded neither jot nor

tittle of deference.” 17 Accordingly, the Court found that “the

comity rationale for tribal exh austion normally appropriate to a

tribal court’s determination of its jurisdiction stops short of the

Price-Anderson Act.” 18

Bank One contends that this decision significantly altered the

legal landscap e by severely restricting the tribal exhaustion19 Id. at 485 n.7 (internal citation omitted).

20 See, e.g., Grigson v. Creative Artists Agency

, 210 F.3d 524,

526 (5th Cir. 2000) (“Arbitration is favored in the law.”), citing

Moses H. Cone Memorial Hospital v. Mercury Construction , 460 U.S.

1, 24-25 (1983).

10 doctrine. We disagree. The Supreme Court noted in N eztsosie that

its ruling does not say

that the existence of a federal preemption defense in the

more usual sense would affect t he logic of tribal

exhaustion. Under normal circumstances, tribal courts,

like state courts, can and do decide questions of federal

law, and there is no reason to think that questions of

federal preemption are any different. The situation here

is the rare one in which statutory provisions for

conversion of state claims to federal ones and removal to

federal courts express congressional preference for a

federal forum. 19

Neztsosie therefore teaches that a federal court need not stay

its hand pending tribal court adjudication under the Price-Anderson

Act. This brings us to the question we must decide: Does the FAA

have the pre-emptive force of the Price-Anderson Act, thereby

displacing comity considerations underlying the tribal exhaustion

doctrine?

Although the FAA reflect s a strong policy favoring the

enforcement of arbitration clauses, 20 unlike the Price-Anderson Act,

the FAA does not provide an independent ground of federal

jurisdiction. To sue in federal court to enforce an arbitration

claim, a petitioner must demonstrate the existence of federal21 “A party agg rieved ... may petition any United States

district court which, save for such agreement, would have

jurisdiction under Title 28

, in a civil action or in admiralty of

the subject matter of a suit arising out of the controversy between

the parties, for an order directing that such arbitration proceed

in the manner provided for in such agreement.” 9 U.S.C. § 4.

22 Diversity of citizenship is the most common basis of

jurisdiction. S ee Wright & Miller, 13B F E DERAL P RACTICE AND P ROCEDURE

172 (1984).

23 9 U.S.C. § 2.

24 See Doctor’s Associates, Inc. v. Casarotto , 517 U.S. 681

(1996) (state contract law and defenses); Volt Information

Sciences, Inc. v. Board of Trustees of Lel and Stanford Junior

University

, 489 U.S. 468 (1989) (state procedural rules)

. I n the

application of state law, however, “due regard must be given to the

federal policy favoring arbitration, an d ambiguities as to the

scope of the arbitration clause itself must be resolved in favor of

arbitration.” W ebb v. Investacorp, Inc

., 89 F.3d 252, 258 (5th

Cir. 1996), quoting Volt , 489 U.S. at 488.

11 subject matter jurisdiction on the underlying contract claim. 21 As

a result, suits to compel arbitration may only be brought in

federal court if diversity of citizens hip or a federal question

exists. 22

Also, f ederal substantive law under the FAA only applies to

contracts involving three types of transactions: (1) transactions

i n interstate commerce, (2) transactions in foreign commerce, or

(3) maritime transactions. Otherwise state substantive law

applies. 23 Even if FAA substantive law applies, federal courts must

still use state contract law to fill th e gaps not covered by

federal law. 24 If a plaintiff can find no subject matter

jurisdiction in federal court to enforce his ri ght to arbitrate25 Commercial Metals Co. v. Balfour, Guthrie, & Co.

, 577 F.2d

264, 269 (5th Cir. 1978) ( “It is clear that the stat e courts are

entirely able, as well as required, to apply the United States

Arbitration Act and compel arbitration pursuant to the Act if the

statutory requisites are present.”)

26 460 U.S. 1, 26 n. 32, 103 S.Ct. 927, 94 2 n. 32 (1983)

(internal citations omitted)

.

27 See Volt , 489 U.S. 468.

12 under the FAA, he must rely on the state court to enforce these

rights. 25 The Supreme Court commented on this arrangement in M oses

H. Cone Memorial Hosp. v. Mercury Const. Corp. :

The Arbitration Act is something of an anomaly in the

field of federal-court jurisdiction. It creates a body of

federal substantive law establishing and regulating the

duty to honor an agreement to arbitrate, yet it does not

create any independent federal-question jurisdiction....

Section 4 provides for an order compelling arbitration

only when the f ederal district court would have

jurisdiction over a suit on the underlying dispute....

[A]lthough enforcement of the Act is left in large part

to the state courts, it nevertheless represents federal

policy to be vindicated by the federal courts where

otherwise appropriate. 26

The FAA may be further distinguished from Price-Anderson

because, as Neztsosie observes, Price-Anders o n provides for a

federal forum to decide the merits of a controversy, whereas under

the FAA, the merits will be decided by arbitration.

In sum, while the FAA does reflect a policy strongly favoring

the enforcement of arbitration clauses, i t does not reflect a

congressional intent for federal courts to occupy the entire field

of arbitration law. 27

After examining the two statutes, we agree with the district28 Colorado River Water Conservation District v. U.S.

, 424 U.S.

800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)

.

29 See Iowa Mutual , 480 U.S. at 16 n .8.

13 court that

Congress has not expressed an intent to provide a federal

f orum for a ll suits to compel arbitration, but has

instead extended a federal forum only to those suits for

which there is otherwise an independent basis for federal

jurisdiction; the FAA itself confers no jurisdiction on

the federal courts.... In this case, then, in contrast

to the “rare” situation presented in Neztsosie

, Bank One

would have no “right” to a federal forum in the absence

of diversity jurisdiction.... Here the jurisdictional

basis for Bank One’s complaint is not the FAA at all, but

diversity of citizenship jurisdiction, which alone is not

a sufficient basis to overri de the federal policy of

deference to tribal courts.

C.

Bank One also argues that courts must apply the abstention

principles included in Colorado River 28 when considering tribal

exhaustion. We disagree. The tribal exhaustion doctrine is in no

way based on Colorado River

. Iowa Mutual ’s reference to the

Colorado River doctrine as another comity-based abstention doctrine

does not suggest that the Colorado River principles apply to a

tribal exhaustion case. 29 The district court correctly

distinguished the two abstention doctrines, on the ground that the

Colorado River doctrine “proceeds from the prem ise that ‘the

federal courts have a “virtually unflagging obligation

... to

exercise the jurisdiction given them”’ and that therefo re, the

pendency of litigation in state court is not a bar to proceedings30 Bank One , 144 F.Supp.2d at 649.

31 Id.

32 532 U.S. 411, 121 S.Ct. 1589 (2001).

14 in federal court involving the same subject matter in the absence

of "exceptional circumstances." 30 The policy which animates the

tribal exhaustion doctrine, however, “subordinates the federal

court's obligation to exerc ise its jurisdiction to the greater

policy of promoting tribal self-government.” 3 1 C olorado River

abstention is thus the except ion to the rule, whereas tribal

exhaustion is the rule rather than the exception. The latter is

the appropriate doctrine to apply here.

IV.

A.

Relying on C&L Enterprises, Inc. v. Citizen Ban d Potawatomi

Indian Tribe of Oklahoma

, 32 Bank On e also contends that the

arbitration clause waives tribal exhaustion. I n C&L

, the

Potawatomi Indian Tribe contracted with C&L to install a roof on a

building owned by the Tribe off the reservation. The contract at

issue in the case included an arbitration clause and a choice of

law clause. When the Tribe decided to change the roofing material

and sought new bids, C&L submitted an arbitration demand claiming

that the Tribe had breached the contract. The Tribe asserted

sovereign immunity and refused to participate in the arbitration.

The arbitrator awarded damages to C&L, which then sought33 Id. at 1594-95

.

34 See, e.g., Altheimer & Gray v. Sioux Mfg. Corp

., 983 F.2d 803

(7th Cir. 1993); F.G.S. Constructors, Inc. v. Carlow

, 64 F.3d 1230

(8th Cir. 1995). For the opposite approach, s ee, e.g., Ninigret

Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth

., 207 F.3d

21, 33 (1st Cir.2000); Basil Cook Enterprises, Inc. v. St. Regis

15 enforcement in state court. The tribe asserted its immunity again.

The state court denied the motion and confirmed the award and the

state appellate court affirmed.

The Supreme Court vacated and remanded the case to the state

court. The Court held that when a tribe consents to dispute

resolution by arbitration, it waives its sovereign immunity. 33

Bank One argues that if a tribe, by agreeing to an arbitration

clause waives sovereign immunity, such an agreement must also waive

tribal exhausti on. We need not decide this issue because in the

instant case the Tribe was not a party to the contract. The

litigation in C&L involved a contract between a bank and a tribe

,

rather than a contract between a bank and individual members of a

tribe. We decline to extend C &L to contracts between commercial

entities and individual tribe members which would have the effect

of allowing individu al members of a tribe to waive tribal

exhaustion.

B

.

Bank One further argues that decisions by other circuits that

find forum select ion clauses to waive tribal exhaustion should

extend to arbitration clauses. 3 4 The arbitration clause at issueMohawk Tribe

, 117 F.3d 61 (2nd Cir. 1997). A ltheimer & Gray may be

distinguishable fromthe instant case at least insofar as its

decision that tribal exhaustion was not necessary was based on the

lack of a pendin g tribal action or a challenge to tribal court

jurisdiction. See

, Altheimer & Gray , 983 F.2d at 814.

16 in this c ase does not select a judicial forum for resolution of

disputes. An arbitration clause that attempts to foreclose any and

all access to courts bears little resemblance to a forum selection

clause, and the cases appellant relies upon have no application to

this case.

V.

For the reasons stated above, the district court’s order

dismissing Bank One’s suit to compel arbitration for failure to

exhaust tribal remedies is

AFFIRMED.