FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 25, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
LYNN D. BECKER,
Plaintiff Counterclaim Defendant -
Appellee,
v.
UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION, a No. 16-4175
federally chartered corporation; UINTAH
AND OURAY TRIBAL BUSINESS
COMMITTEE; UTE ENERGY
HOLDINGS, LLC, a Delaware LLC,
Defendant Counterclaimants Third-
Party Plaintiffs - Appellants,
v.
JUDGE BARRY G. LAWRENCE,
Third-Party Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:16-CV-00958-CW)
_________________________________
Jeffrey S. Rasmussen (Frances C. Bassett, Thomas W. Fredericks, Jeffrey J. Patterson,
and Thomasina Real Bird, with him on the briefs), Fredericks Peebles & Morgan LLP,
Louisville, Colorado, for Ute Indian Tribe of the Uintah and Ouray Reservation, Uintah
and Ouray Tribal Business Committee, Ute Energy Holdings, LLC, Defendant
Counterclaimants Third-Party Plaintiffs-Appellants.
David K. Isom, Isom Law Firm, PLLC, Salt Lake City, Utah, for Plaintiff, Counterclaim
Defendant-Appellee, Lynn D. Becker.
Brent M. Johnson and Keisa L. Williams, Utah Administrative Office of the Courts, Salt
Lake City, Utah, for Third-Party Defendant-Appellee, Judge Barry G. Lawrence.
_________________________________
Before HARTZ and EBEL, Circuit Judges.*
_________________________________
HARTZ, Circuit Judge.
_________________________________
The Ute Indian Tribe of the Uintah and Ouray Reservation1 appeals a preliminary
injunction ordering it not to proceed with litigation in tribal court against a nonmember
former contractor, Lynn Becker. The district court ruled that although the parties’
dispute would ordinarily come within the tribal court’s jurisdiction, their Independent
Contractor Agreement (the Contract) waived the Tribe’s right to litigate in that forum.
The Tribe mounts two challenges to the preliminary injunction. First, it contends
that the tribal-exhaustion rule, which ordinarily requires a federal court to abstain from
determining the jurisdiction of a tribal court until the tribal court has ruled on its own
jurisdiction, deprived the district court of jurisdiction to determine the tribal court’s
*
The Honorable Neil Gorsuch considered this appeal originally but did not participate in
this Opinion. The practice of this court permits the remaining two panel judges, if in
agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also
United States v. Wiles, 106 F.3d 1516, 1516, n* (10th Cir. 1997) (this court allows
remaining panel judges to act as a quorum to resolve an appeal).
1
The other two appellants are the Uintah and Ouray Tribal Business Committee (the
Tribe’s elected governing body) and Ute Energy Holdings, LLC (whose 100% owner and
sole member is the Tribe). Because the arguments of the three appellants are identical in
almost every respect, we will generally refer to them all as the Tribe.
2
jurisdiction. We do not agree that the rule is jurisdictional but agree that the district court
should have abstained on the issue. Although the Contract contains a waiver of the tribal-
exhaustion rule, Mr. Becker, on the record and arguments before us on this appeal, has
not shown a likelihood of success based on the validity of the waiver. He has failed to
adequately counter the Tribe’s contention that the entire Contract, including the waiver, is
void because it did not receive federal-government approval, as is required for contracts
transferring property held in trust for the Tribe by the federal government. Second, the
Tribe contends that even if exhaustion is not required, the preliminary injunction was
improper because the Contract did not waive the Tribe’s right to litigate this dispute in
tribal court. Although the author, in a separate concurrence, believes the contention has
substantial merit, the panel relies only on the first issue as ground for reversal.
In addition, the Tribe challenges the district court’s dismissal of its claims under
the federal civil-rights act, 42 U.S.C. § 1983, seeking to halt state-court litigation between
it and Mr. Becker. We reject the challenge. The Tribe has not stated a claim under §
1983 because it is not a “person” entitled to relief under that statute when it is seeking, as
here, to vindicate only a sovereign interest.
To resolve the remaining issues raised in this case, we adopt our decision in the
companion case of Ute Indian Tribe v. Lawrence, No. 16-4154 (August 25, 2017).
3
I. BACKGROUND
In 2005 Mr. Becker and the Tribe executed the Contract, which made Mr. Becker
a manager in the Tribe’s Energy and Minerals Department. He was to receive a salary of
$200,000 and 2% of “net revenue distributed to Ute Energy Holding, LLC from Ute
Energy, LLC.” Becker Compl. at Ex. 1 (the Contract), Aplt. App., Vol. I at 46. The two
LLCs are tribal entities “capitalized with . . . oil and gas interest[s] . . . held in trust for
the Tribe by the United States.” Id. at Ex. 3 (Tribal Court Complaint), Aplt. App., Vol. I
at 56. Mr. Becker resigned in 2007. He claims that the Tribe breached its compensation
promises while the Tribe maintains that he was part of a scheme to defraud it out of
valuable interests in oil and gas.
The parties’ litigation began when Mr. Becker filed suit in the United States
District Court for the District of Utah seeking damages. The court dismissed the suit for
lack of subject-matter jurisdiction because the claim did not arise under federal law. We
affirmed in Becker v. Ute Indian Tribe, 770 F.3d 944 (10th Cir. 2014). Mr. Becker then
filed suit in Utah state court in December 2014. In July 2015 the state court rejected the
Tribe’s attempt to have the action dismissed on the grounds that the state court lacks
jurisdiction and that the Tribe is protected by tribal sovereign immunity. The Tribe sued
in federal court the following June to enjoin the state proceeding on the ground that the
state court lacks jurisdiction to hear the parties’ dispute. But the district court dismissed
the Tribe’s federal suit for lack of federal-court subject-matter jurisdiction. That
4
dismissal is the subject of a separate appeal in this court. See Ute Indian Tribe v.
Lawrence, No. 16-4154.
Having been unsuccessful in state and federal court, the Tribe turned to tribal
court, seeking, among other things, declarations (1) that the Contract is void because it
grants Mr. Becker a tribal trust asset without federal-government approval, in violation of
both federal and tribal law, and (2) that its purported waiver of sovereign immunity in the
Contract was executed in violation of tribal law. Mr. Becker responded on September 14,
2016, by filing this action against the Tribe and affiliated entities. The district court
promptly granted Mr. Becker’s request for a temporary restraining order against the
tribal-court proceeding. While awaiting a hearing on Mr. Becker’s request for a
preliminary injunction, the Tribe filed counterclaims against Mr. Becker and third-party
claims against the judge presiding over Mr. Becker’s state action, including claims under
§ 1983 seeking an injunction against the state-court proceedings on the ground that they
violate the Tribe’s due-process rights. The district court later granted Mr. Becker a
preliminary injunction. It also dismissed the Tribe’s § 1983 claims without prejudice.
And, adopting the decision by the district court in the related case of Ute Indian Tribe v.
Lawrence, Case No. 2:16-CV-00579-RJS (Aug. 16, 2016), the court in this case
dismissed the Tribe’s remaining counterclaims and third-party claims for lack of
jurisdiction. (We reverse the Lawrence dismissal today in a separate decision.)
5
II. THE PRELIMINARY INJUNCTION
We have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the grant of a
preliminary injunction by a district court. “We review the . . . grant of a preliminary
injunction for abuse of discretion. A district court abuses its discretion when it commits
an error of law or makes clearly erroneous factual findings.” Planned Parenthood of
Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014) (internal quotation marks
omitted). A party must establish four elements to obtain a preliminary injunction: “(1)
[that it has] a substantial likelihood of prevailing on the merits; (2) [that it will suffer]
irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs
the harm that the preliminary injunction may cause the opposing party; and (4) that the
injunction, if issued, will not adversely affect the public interest.” Diné Citizens Against
Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (internal quotation
marks omitted). “[E]ach of these elements is a prerequisite for obtaining a preliminary
injunction . . . .” Id. We agree with the Tribe that Mr. Becker has failed to establish the
first element because he has not shown a substantial likelihood that he can escape the
tribal-exhaustion rule, which usually requires that the issue of tribal jurisdiction be
decided by the tribal court in the first instance.
The tribal-exhaustion rule states that “absent exceptional circumstances, federal
courts typically should abstain from hearing cases that challenge tribal court jurisdiction
until tribal court remedies, including tribal appellate review, are exhausted.” Crowe &
Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011) (internal quotation marks
6
omitted). The rule follows from the Supreme Court’s recognition “that Congress is
committed to a policy of supporting tribal self-government and self-determination.”
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985). It
ensures that “the forum whose jurisdiction is being challenged [is provided] the first
opportunity to evaluate the factual and legal bases for the challenge.” Id.
The parties do not dispute these general propositions. The only matters in dispute
are the Tribe’s contention that exhaustion is a matter of federal subject-matter jurisdiction
and Mr. Becker’s contention that exhaustion is not required because the Tribe waived
exhaustion in the Contract. We reject both contentions, holding that exhaustion is not a
jurisdictional matter and that Mr. Becker has not satisfied his burden of showing waiver
because he has failed to establish the validity of the Contract. 2
A. Is the Exhaustion Rule Jurisdictional?
2
Mr. Becker has also argued that the exhaustion rule does not apply because it is clear
that the tribal court would lack jurisdiction to hear the dispute. See Thlopthlocco Tribal
Town v. Stidham, 762 F.3d 1226, 1238 (10th Cir. 2014). But in the context of this case
that argument does not present any additional issues. Mr. Becker has not disputed that if
the Contract is void, then the tribal court has jurisdiction and the exhaustion rule applies.
And the Tribe has not disputed that if the Contract is valid, then it waived the exhaustion
rule. Thus, at least as the matter appears before us on appeal, the applicability of the
exhaustion rule turns solely on the validity of the Contract.
In addition, Mr. Becker asserts in a single sentence in his brief that exhaustion
should not be required because the Tribe’s invocation of tribal jurisdiction is in bad faith.
But we have recently held that the bad-faith exception to the tribal-exhaustion rule refers
only to bad faith by the tribal court. See Norton v. Ute Indian Tribe of Unitah and Ouray
Reservation, 862 F.3d 1236, 1249 (10th Cir. 2017). And Mr. Becker has not alleged such
bad faith.
7
First, we address jurisdiction. To invoke federal jurisdiction under 28 U.S.C. §
1331, a plaintiff must “assert a claim arising under federal law.” Nat’l Farmers, 471 U.S.
at 850 (internal quotation marks omitted). The allocation of sovereign authority among
the federal government, the states, and tribes is ordinarily a matter of federal law. See,
e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324
(2008) (“[W]hether a tribal court has adjudicative authority over nonmembers is a federal
question.”); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987) (“If state-court
jurisdiction over Indians or activities on Indian lands would interfere with tribal
sovereignty and self-government, the state courts are generally divested of jurisdiction as
a matter of federal law.”). Hence, the federal district court had jurisdiction to hear the
present dispute. See Plains, 554 U.S. at 324. Although it may appear that the exhaustion
rule could then deprive the district court of that jurisdiction (because the result of
exhaustion could be that the court never decides the issues brought before it), the
Supreme Court has definitively declared that “[e]xhaustion is required as a matter of
comity, not as a jurisdictional prerequisite.” Iowa, 480 U.S. at 16 n.8. The Tribe’s claim
that exhaustion is required is not a matter of jurisdiction.
B. Did the Tribe Waive the Exhaustion Rule?
Mr. Becker argues that the Tribe waived the exhaustion rule. He points to the
Contract language stating, “[T]he Tribe . . . waives any requirement . . . that Tribal
remedies be exhausted.” Contract Art. 23, Aplt. App., Vol. I at 42. The Tribe responds,
however, that any waiver is ineffective because the Contract is void for lack of approval
8
by federal authorities. It contends that the contractual transfer to Mr. Becker of “two
percent (2%) of net revenue distributed to Ute Energy Holding, LLC from Ute Energy,
LLC,” Becker Compl. at Ex. 1 (the Contract), Aplt. App., Vol. I at 46, is a transfer of
property held in trust by the United States for the Tribe and that any contract effecting
such a transfer must be approved by the United States. The Tribe invokes several statutes
requiring federal approval for such contracts,3 but we need not parse those statutes
because Mr. Becker does not contest that the oil and gas interests themselves are tribal
trust property or that transfers of tribal trust property require federal approval. Rather,
the issue is whether the payments to Mr. Becker constitute transfers of trust property. In
support of its position the Tribe argues that the payments to Mr. Becker are akin to
royalties, which, according to the Supreme Court, maintain the same trust status as the oil
and gas assets themselves. See United States v. Noble, 237 U.S. 74 (1915). In Noble the
Court held that the assignment of a royalty equal to a specified percentage of minerals
mined or removed from the land of an Indian allottee violated a prohibition on alienation
of the allotment. It wrote:
It is said that the [agreements] contemplated the payment of sums of
money, equal to the agreed percentage of the market value of the minerals,
and thus that the assignment was of these moneys; but the fact that rent is to
be paid in money does not make it any the less a profit issuing out of the
land.
Id. at 80–81.
3
The Tribe cites 25 U.S.C. §§ 81, 85, 177, 464, and 2102(a).
9
Mr. Becker’s counterarguments are not persuasive. He provides a copy of a letter
from the Bureau of Indian Affairs (BIA) stating that the Amended and Restated Ute
Energy LLC Operating Agreement did not require federal approval. But the amended
agreement itself is not in the record; and without examining it, it is impossible to
determine whether it contains provisions similar to the 2% grant to Mr. Becker.
Consequently, we cannot tell whether the BIA letter is relevant to the issue before us. If
there is law exempting the Contract from the requirement of federal approval, Mr. Becker
has not provided it to this court.
Second, Mr. Becker argues that even if the Contract required federal approval, the
waiver provision is severable under the Contract’s severability clause and therefore
enforceable. He relies on Stifel, Nicolaus & Co. v. Lac du Flambeau Band of Lake
Superior Chippewa Indians, 807 F.3d 184 (7th Cir. 2015), which held that “the fact that a
contract may have been procured by fraud does not negate the validity of a forum
selection clause; instead, we look to whether a forum selection clause itself was procured
by fraud,” id. at 199 (ellipses and internal quotation marks omitted). In this case,
however, the issue is not fraud but invalidity for lack of a statutorily mandated federal
approval. See Oneida Cty. v. Oneida Indian Nation, 470 U.S. 226, 245 (1985)
(“conveyance without the sovereign’s consent was void ab initio”); Quantum Expl., Inc.
v. Clark, 780 F.2d 1457, 1459 (9th Cir. 1986). This court has said, in the context of an
unapproved contract governed by the Indian Gaming Regulatory Act (IGRA), that “[i]t
may be questioned whether any part of a contract determined to be void ab initio,
10
including the severability provisions, may be enforced.” First Am. Kickapoo Operations,
L.L.C. v. Multimedia Games, Inc., 412 F.3d 1166, 1177 n.5 (10th Cir. 2005). And Stifel
itself did not question that circuit’s decision four years earlier that a contract not
approved as required by IGRA was void ab initio and not severable despite a severability
clause in the contract. See Wells Fargo Bank, Nat’l Ass’n v. Lake of the Torches Econ.
Dev. Corp., 658 F.3d 684, 699–700 (7th Cir. 2011) (contractual waiver of sovereign
immunity held invalid). We agree with Wells Fargo.
Based on the record and arguments before us, the exhaustion rule applies, and the
tribal court should consider in the first instance whether it has jurisdiction. For purposes
of obtaining a preliminary injunction, Mr. Becker has not shown a substantial likelihood
of success on the exhaustion issue.
III. THE TRIBE’S § 1983 CLAIMS
The Tribe also appeals the dismissal of its counterclaim and third-party claim
brought under § 1983. We have jurisdiction to review the dismissal because the district
court certified it as a final judgment under Federal Rule of Civil Procedure 54(b) shortly
after the filing of the notice of appeal. See Fed. R. Civ. P. 54(b) (“When an action
presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or
third-party claim— . . . the court may direct entry of a final judgment as to one or more,
but fewer than all, claims . . . .”); Ruiz v. McDonnell, 299 F.3d 1173, 1179 (10th Cir.
2002) (“[A] notice of appeal filed before the district court disposes of all claims is . . .
11
effective if the appellant obtains . . . certification pursuant to Fed.R.Civ.P. 54(b) . . .
before the court of appeals considers the case on its merits.”).
The Tribe’s § 1983 claims seek to enjoin Mr. Becker’s state-court suit against it.
The claims assert that Mr. Becker (in bringing his state action) and Utah District Judge
Barry Lawrence (in presiding over it) are violating the Tribe’s due-process rights “to not
be subjected to unlawful claims of State authority and to not be deprived of liberty or
property without due process of law and to pursue its property rights in a court of
competent jurisdiction of its own choosing (the tribal forum).” Aplt. Br. at 21.
A claim under § 1983 can be brought only by a “citizen” or “person.” 42 U.S.C.
§ 1983.4 A tribe may or may not qualify as a person, “depend[ing] on whether the tribe’s
asserted right [is] of a sovereign nature.” Muscogee (Creek) Nation v. Okla. Tax
4
That statute provides in full:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983 (emphasis added).
12
Comm’n, 611 F.3d 1222, 1234 (10th Cir. 2010). We therefore must examine the nature
of the claims brought by the Tribe.
The Tribe’s complaint and appellate briefs could be clearer in stating the basis of
its § 1983 claims. Although the Tribe invokes the Due Process Clause of the Fourteenth
Amendment, it clearly is not arguing that it is being denied its procedural-due-process
rights to notice and a hearing in the state-court proceedings. And although it cites and
discusses J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), which held that
the Due Process Clause forbids a state court from exercising jurisdiction over a person
that has insufficient contacts with the state, we do not understand it to be alleging an
insufficient-contacts claim. Rather, as best we can understand the Tribe’s position, its
complaint is simply that the state court lacks jurisdiction to hear the dispute brought
before it. But the interest protected by legislation and case law limiting state-court
jurisdiction over certain Indian matters is tribal sovereignty. See Williams v. Lee,
358 U.S. 217, 223 (1959) (“There can be no doubt that to allow the exercise of state
jurisdiction here would undermine the authority of the tribal courts over Reservation
affairs and hence would infringe on the right of the Indians to govern themselves.”). In
our view, the right being asserted here is, at its core, the right of tribal sovereignty. And
in seeking to protect that right, the Tribe is proceeding in its sovereign capacity, not as a
13
“person” within the meaning of § 1983. Therefore, we affirm the district court’s
dismissal without prejudice of the Tribe’s § 1983 claims.5
IV. TRIBE’S REMAINING CLAIMS
Finally, the Tribe filed non-§1983 counterclaims and third-party claims that the
district court dismissed for lack of jurisdiction. The Tribe’s briefs in this court merely
adopted the arguments it raised on those issues in the companion case of Ute Indian Tribe
v. Lawrence. On that appeal we are reversing the district court’s ruling that it lacked
jurisdiction to consider the claims and are remanding for the court to decide the
remaining issues in the first instance. See Lawrence, No. 16-4154. We adopt the same
course here.
V. CONCLUSION
We REVERSE the district court’s preliminary injunction and REMAND to the
district court to proceed consistently with this opinion. We AFFIRM the dismissal of the
Tribe’s § 1983 counterclaim and third-party claim. And we REVERSE the district
court’s dismissal for lack of jurisdiction of the Tribe’s remaining counterclaims and third-
party claims and REMAND to the district court for further proceedings.
5
We recognize that Ute Energy Holdings, LLC, is also a plaintiff. But we said in
Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006), that unincorporated associations are not
persons entitled to sue under § 1983, and Ute Energy has presented no argument why an
LLC should be distinguished from other unincorporated associations in this respect.
14
16-4175, Becker v. Ute Indian Tribe
HARTZ, Circuit Judge, concurring:
Shortly before oral argument the three-judge panel assigned to this case issued an
order staying the district court’s preliminary injunction preventing the Tribe from
pursuing a lawsuit against Mr. Becker in tribal court arising out of the Agreement. See
Order of Dec. 30, 2016. We gave two reasons why we thought the Tribe had shown a
likelihood of success on the merits of its appeal. One was the ground relied upon by the
panel opinion issued today: the likelihood that the Agreement is void for lack of federal
approval. The other was our doubt that the Agreement waived tribal jurisdiction. I add
the following remarks to expand upon the reason for that doubt. I hope the remarks will
serve two purposes. First, it is possible that on further proceedings in the district court it
will become apparent that federal approval of the Contract was unnecessary (or, perhaps,
granted). In that event, it will be necessary to determine whether the Contract in fact
waived tribal jurisdiction. A discussion of the reasons for questioning whether there was
a waiver may help counsel for both parties in the presentation of evidence and argument
on that question. Second, and more importantly, the discussion may encourage greater
clarity in the language of future contracts.
The district court held that the following language in the Contract waived the
jurisdiction of the tribal court:
The Parties hereto unequivocally submit to the jurisdiction of the following
courts: (i) U.S. District Court for the District of Utah, and appellate courts
therefrom, and (ii) if, and only if, such courts also lack jurisdiction over
such case, to any court of competent jurisdiction and associated appellate
courts or courts with jurisdiction to review actions of such courts. The
court or courts so designated shall have, to the extent the Parties can so
provide, original and exclusive jurisdiction, concerning all such Legal
Proceedings, and the Tribe waives any requirement of Tribal law stating
that Tribal courts have exclusive original jurisdiction over all matters
involving the Tribe and waives any requirement that such Legal
Proceedings be brought in Tribal Court or that Tribal remedies be
exhausted.
Contract Art. 23, Aplt. App., Vol. I at 42. I have doubts about that ruling.
To begin with, clause (ii) of the waiver governs because this court has already
resolved that the Utah federal district court (the preferred forum under clause (i)) lacked
jurisdiction to hear Mr. Becker’s contract claim. See Becker, 770 F.3d at 949. Under
clause (ii) the parties submit to the jurisdiction of “any court of competent jurisdiction.”
“A court of competent jurisdiction is a court with the power to adjudicate the case before
it.” Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 560 (2017). Mr. Becker
acknowledges that “the tribal court is, in general, a ‘court of competent jurisdiction.’”
Becker’s Mot. for Recons. of Stay of Prelim. Inj. at 4.
Further, the language in the waiver provision makes little sense unless it permits
tribal courts to hear the parties’ disputes. In particular, the provision refers to “any court
of competent jurisdiction and associated appellate courts or courts with jurisdiction to
review actions of such courts.” Contract Art. 23, Aplt. App., Vol. I at 42 (emphasis
added). The emphasized language serves no purpose if only state or federal courts are
considered courts of competent jurisdiction because any state or federal court “with
jurisdiction to review actions of [federal or state] courts” is already adequately described
as an “associated appellate court[].” Mr. Becker suggests that the purpose of the
emphasized language is to include certiorari review by a state high court of state-court
2
decisions or certiorari review by the United States Supreme Court. But the standard
definition of appellate court—“A court with jurisdiction to review decisions of lower
courts or administrative agencies,” Black’s Law Dictionary 430 (10th ed. 2014)—
encompasses courts with certiorari review. 1 In contrast, the language does make sense
when applied to tribal courts. It would encompass organizations (such as those
associated with law schools) that handle appeals from tribal courts. See Samantha A.
Moppett, Acknowledging America’s First Sovereign: Incorporating Tribal Justice
Systems into the Legal Research and Writing Curriculum, 35 Okla. City U. L. Rev. 267,
302 (2010) (“Many of the tribes that do not have their own appellate courts are members
of, or will contract with, a regional inter-tribal court system that hears appeals of tribal
trial court decisions.”). Courts try to construe contract language to give effect to every
word. See WebBank v. Am. Gen. Annuity Serv. Corp., 54 P.3d 1139, 1144 (Utah 2002)
(“[W]e consider each contract provision . . . in relation to all of the others, with a view
toward giving effect to all and ignoring none.” (internal quotation marks omitted));
Restatement (Second) of Contracts § 203 (Am. Law Inst. 1981) (“In the interpretation of
a promise or agreement or a term thereof, the following standards of preference are
generally applicable: (a) an interpretation which gives a reasonable, lawful, and effective
meaning to all the terms is preferred to an interpretation which leaves a part
unreasonable, unlawful, or of no effect.”). I would construe “court[s] of competent
1
Also, if the sole purpose of the emphasized language is to include review by the United
States Supreme Court of state-court decisions, surely the drafters would have chosen to
write “United States Supreme Court” rather than “courts with jurisdiction to review
actions of such courts.”
3
jurisdiction” to include tribal courts, which gives effect to the language “courts with
jurisdiction to review actions of such courts.”
Mr. Becker relies on language later in the waiver provision. But that language
cannot overcome the clear import that tribal courts can hear the parties’ disputes.
Although the last sentence of the waiver does waive any requirement that the tribal court
have exclusive jurisdiction or that tribal remedies be exhausted, it does not say that the
tribal court lacks any jurisdiction. To say that a court does not have “exclusive”
jurisdiction is not to say that it has no jurisdiction. The sentence just permits another
court also to have jurisdiction. All the waiver-of-exclusive-jurisdiction language does is
make clear that federal courts under clause (i) and state courts that may be competent
under clause (ii) are not excluded from jurisdiction simply because the tribal court may
have jurisdiction. In other words, to say that one is not required to proceed in tribal court
is not to say that one is prohibited from doing so. The Tribe does not relinquish tribal-
court jurisdiction altogether just by relinquishing exclusive jurisdiction.2
2
Mr. Becker relies on Stifel, 807 F.3d 184, to support his contention that the waiver
provision excludes tribal-court jurisdiction. But rather than helping him, that decision
emphatically illustrates that when parties wish to exclude tribal-court jurisdiction, they
can express that wish in straightforward language quite unlike the provision in the
Contract. The Stifel provision stated:
The [tribal] Corporation expressly submits to and consents to the
jurisdiction of the United States District Court for the Western District of
Wisconsin (including all federal courts to which decisions of the Federal
District Court for the Western District of Wisconsin may be appealed), and,
in the event (but only in the event) the said federal court fails to exercise
jurisdiction, the courts of the State of Wisconsin wherein jurisdiction and
venue are otherwise proper, for the adjudication of any dispute or
controversy arising out of this Bond, the Indenture, or the Bond Resolution
4
There is language in the waiver provision that does give me pause: “The court or
courts so designated shall have, to the extent the Parties can so provide, original and
exclusive jurisdiction . . . .” Contract Art. 23, Aplt. App., Vol. I at 42. It is not clear to
me what it means to say that “courts,” in the plural, have exclusive jurisdiction, since
“exclusive” generally refers to a single entity. Perhaps it means that either the court
designated in clause (i) shall have exclusive jurisdiction or the courts designated in clause
(ii) shall, as a class, have exclusive jurisdiction; but it would seem that all other courts are
already excluded because they are not courts of competent jurisdiction. Or perhaps the
excluded tribunals are not courts but government agencies. It is also unclear what it
means to say that the jurisdiction of the designated courts is exclusive “to the extent the
Parties can so provide.” At oral argument Mr. Becker suggested for the first time that
this language means that once one party has filed suit in a proper court, all parties would
do their best to keep the issues from being litigated in a different court. But surely that
would not preclude party A from seeking to litigate in its chosen forum even though party
B had previously initiated suit in a forum that party A does not believe to be a “court of
competent jurisdiction.” (Recall that the Tribe contends that the state court lacks
jurisdiction over this dispute.)
In any event, the puzzling language does not distinguish tribal courts from state
courts. Mr. Becker appears to argue that because the waiver strips the tribal court of
and including any amendment or supplement which may be made thereto,
or to any transaction in connection therewith, to the exclusion of the
jurisdiction of any court of the Corporation.
Id. at 197 (emphasis added).
5
exclusive jurisdiction, it could not be a court provided “exclusive” jurisdiction in the
waiver. But state courts also do not have exclusive jurisdiction. If the “shall have
. . . original and exclusive jurisdiction” language excludes tribal-court jurisdiction, it
would likewise exclude state-court jurisdiction, an absurd result.
I hope this is the last time courts have to construe a waiver clause with such
obscure language.
6
Becker v. Ute Indian Tribe, No. 16-4175
EBEL, Circuit Judge, concurring.
In this appeal resolved by a two-judge panel, we have reached a unanimous panel
decision as to the disposition of the appeal. Judge Hartz, however, has added a
concurrence to express his further views on an issue that is neither dispositive or relevant
to our panel decision. His concurrence would be dicta, even if its discussion were
included in the panel’s opinion. Our panel decision expressly does not address the
meaning of the language used by the parties in their Contract generally and, in particular,
the language the parties included in the Contract’s provision addressing in what court the
parties’ disputes should be resolved. Before that question ever comes before this Court,
the meaning of the Contract’s language would have to be raised to and addressed first by
a trial court with appropriate jurisdiction and then appealed. Assuming that the rules of
evidence would allow it, an interpretation of the Contract might profit from parol
evidence addressing what the parties intended by their ambiguous language regarding in
what court the parties’ disputes should be resolved.
All this is simply to say that, although I join our two-judge panel opinion, I do not
join Judge Hartz’s concurrence and I believe that there is currently an insufficient record
before us to address the issues Judge Hartz discusses in his concurrence.