Breakthrough Management Group, v. Chukchansi Gold Casino and Res, et al

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[9826986] Reversed and Remanded; We dismiss the cross-appeal of BMG for lack of jurisdiction.Terminated on the merits after oral hearing; Written, signed, published; Judges Murphy, Holmes, authoring judge and Armijo. Mandate to issue. [08-1298, 08-1305]

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Breakthrough Management Group, v. Chukchansi Gold Casino and Res, et al U n i t e d States Court of Appeals Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010h Circuit T e n t Page: 1 FILED Doc. 0 D e c e m b e r 27, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court B R E A K T H R O U G H MANAGEMENT G R O U P , INC., Plaintiff-Appellee-CrossAppellant, v. C H U K C H A N S I GOLD CASINO AND R E S O R T ; CHUKCHANSI E C O N O M I C DEVELOPMENT AUTHORITY, Defendants-AppellantsCross-Appellees, and R Y A N STANLEY, Defendant-Appellant-CrossAppellee. N o s . 08-1298, 08-1305, 08-1317 A p p e a l from the United States District Court for the District of Colorado ( D . C . No. 1:06-CV-01596-MSK-KLM) M a r c F. Pappalardo of Breakthrough Management Group, Inc., Longmont, C o l o r a d o , for Plaintiff-Appellee-Cross-Appellant. M i c h a e l A. Robinson of Fredericks Peebles & Morgan LLP, Sacramento, C a l i f o r n i a , for Defendants-Appellants-Cross-Appellees Chukchansi Gold Casino Dockets.Justia.com Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 2 a n d Resort and Chukchansi Economic Development Authority. L e n d e n F. Webb of Law Offices of Lenden F. Webb, Fresno, California, for D e f e n d a n t - A p p e l l a n t - C r o s s - A p p e l l e e Ryan Stanley. Before MURPHY, HOLMES, Circuit Judges, and ARMIJO, District Judge. * H O L M E S , Circuit Judge. T h i s appeal asks us to explore the relationship between an Indian tribe and t h e economic entities created by the tribe, and to determine how close that r e l a t i o n s h i p must be in order for those entities to share in the tribe's sovereign i mmu n i t y . Plaintiff Breakthrough Management Group, Inc. ("BMG"), a provider of b u s i n e s s management training and consulting services, filed suit in the United S t a t e s District Court for the District of Colorado in August 2006. BMG alleged t h a t the Chukchansi Gold Resort & Casino ("the Casino") had paid for a singlep e r s o n license for one of BMG's online training programs and then recorded and u s e d portions of that program without permission to train more than one employee. Because the Casino is operated for the benefit of a federally recognized Indian t r i b e , the Picayune Rancheria of the Chukchansi Indians ("the Tribe"), BMG b r o u g h t federal and state-law claims against the Tribe, the Chukchansi Economic T h e Honorable M. Christina Armijo, District Judge, United States D i s t r i c t Court for the District of New Mexico, sitting by designation. 2 * Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 3 D e v e l o p me n t Authority ("the Authority), which owns and operates the Casino, the C a s i n o , and several individual defendants. The defendants filed various motions to d i s mi s s , arguing that they were protected from BMG's suit by the doctrine of tribal s o v e r e i g n immunity and that the district court should dismiss the complaint for lack o f subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). T h e district court granted the Tribe's motion to dismiss, holding that the T r i b e was entitled to sovereign immunity and had not clearly waived that immunity b y entering into licensing agreements with BMG that contained forum-selection c l a u s e s . The court denied Defendant Ryan Stanley's motion to dismiss, concluding t h a t sovereign immunity did not extend to him because he had been sued in an i n d i v i d u a l rather than an official capacity. After an evidentiary hearing, the court a l s o denied the Authority and the Casino's motion to dismiss, concluding that they w e r e not entitled to share in the Tribe's sovereign immunity because any judgment i mp o s e d against them would not imperil the Tribe's monetary assets. This appeal followed. The Authority and the Casino have appealed the d i s t r i c t court's denial of their motion to dismiss for lack of subject matter j u r i s d i c t i o n (Appeal No. 08-1298), and Mr. Stanley has done likewise (Appeal No. 0 8 - 1 3 0 5 ) . BMG has filed a cross-appeal that raises an alternative ground for a f f i r ma n c e of the district court's order--viz., that the Authority and the Casino, and b y extension Mr. Stanley, have waived any immunity that they may otherwise enjoy b y entering into BMG's licensing agreements (Appeal No. 08-1317). We have 3 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 4 j u r i s d i c t i o n over Defendants' interlocutory appeals under 28 U.S.C. 1291 and the c o l l a t e r a l order doctrine, 1 but we DISMISS BMG's cross-appeal for lack of j u r i s d i c t i o n . For the reasons discussed below, we REVERSE the district court's o r d e r s denying the Authority and the Casino's motion to dismiss and the motion to d i s mi s s of Mr. Stanley and REMAND for further proceedings consistent with this opinion. BACKGROUND B M G is a Colorado Corporation that provides online business management t r a i n i n g and consulting services. BMG alleges that employees at the Casino copied a n d distributed materials from one of BMG's training programs without a u t h o r i z a t i o n . The Casino, which operates for the financial benefit of the Tribe, h a d paid for a single-person license, but allegedly had recorded and used portions o f the program without permission to train a large group of employees. Based on t h e s e allegations, BMG brought suit against the Tribe, 2 the Authority, the Casino, t h e former general manager of the Casino, Mr. Stanley, and two other Casino e mp l o y e e s . BMG asserted claims for federal copyright infringement, trademark A district court's order denying a motion to dismiss involving a c l a i m of tribal sovereign immunity is an immediately appealable collateral order. Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep't of Labor, 187 F . 3 d 1174, 117980 (10th Cir. 1999). T h e Picayune Rancheria of the Chukchansi Indians of California is a f e d e r a l l y recognized Indian tribe. See Indian Entities Recognized & Eligible To R e c e i v e Services From the United States Bureau of Indian Affairs, 67 Fed. Reg. 4 6 , 3 2 8 , 46,330 (July 12, 2002). The parties also have stipulated to that fact. 4 2 1 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 5 i n f r i n g e me n t , and violation of the Racketeer Influenced Corrupt Organizations Act ( " R I C O " ) , 18 U.S.C. 1962, as well as state common law claims for conversion, mi s a p p r o p r i a t i o n , breach of contract, breach of the implied covenant of good faith a n d fair dealing, fraud, unfair competition, and violation of the Colorado Consumer P r o t e c t i o n Act, Colo. Rev. Stat. Ann. 6-1-101 to -115 (West 2010). A l l of the defendants filed motions to dismiss, arguing in relevant part that d i s mi s s a l was warranted under Federal Rule of Civil Procedure 12(b)(1) for lack of s u b j e c t matter jurisdiction under the doctrine of tribal sovereign immunity. BMG o p p o s e d the motions. BMG also moved to convert the motions into Rule 56 mo t i o n s for summary judgment and, in the alternative, for leave to conduct limited d i s c o v e r y on the issue of tribal sovereign immunity. In a September 12, 2007, Opinion and Order, the district court granted the T r i b e ' s motion to dismiss. The court determined that the Tribe "indisputably e n j o y s sovereign immunity," Aplts. App. at 21, and rejected BMG's argument that t h e Tribe had waived its immunity by entering into two licensing agreements with B M G that contained forum-selection clauses. 3 The court held that a contractual p r o v i s i o n agreeing to arbitrate disputes could constitute a waiver of sovereign i mmu n i t y when (1) there is an agreement to submit disputes to a body for T h e court assumed without deciding that the Tribe could be held to t h e terms of the licensing agreement, which was entered into by BMG and an a g e n t of the Casino. 5 3 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 6 a d j u d i c a t i o n , as well as (2) an agreement as to what particular body will hear such d i s p u t e s . But the court found that those requirements were not satisfied in this case. The court reasoned that the Tribe did not expressly agree to submit any d i s p u t e for adjudication, it merely agreed where such adjudication would take place i f it were to occur. 4 The court explained that the parties' agreement here speaks only to where a suit ma y be brought, but it does not expressly or impliedly a d d r e s s whether a suit may be brought. . . . At first blush, it seems awkward to read a contract t o specify where disputes may be resolved, but not to read i t as providing whether disputes may be resolved. H o w e v e r , any awkwardness in this interpretation vanishes w h e n one recognizes the peculiar circumstances of this c a s e . Here, unlike the ordinary citizen that [BMG] t y p i c a l l y enters into contracts with, the Tribe possesses a s p e c i a l cloak of immunity from suit. Thus, language in [ B M G ' s ] standard contract that would be sufficient to bind o r d i n a r y citizens to a particular dispute-resolution me c h a n i s m is not necessarily sufficient to bind the Tribe. I d . at 20. The court concluded that, because BMG did not negotiate the terms of t h e contract with the Tribe, "it should not be surprising that the standard terms of [ t h e licensing agreement] yield seemingly awkward results in this peculiar factual c i r c u ms t a n c e . " Id. at 21. A s the district court recounted, the forum-selection provision stated t h a t "the sole and exclusive venue for any and all disputes involving . . . this A g r e e me n t shall be the state and federal courts located within the state of C o l o r a d o . " Aplts. App. at 20 (internal quotation marks omitted). 6 4 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 7 T h e court did not rule on the Authority and the Casino's motion to dismiss i n the September 12, 2007, Opinion and Order because it could not determine f r o m the pleadings whether the Authority and the Casino "enjoy[ed] a connection t o the Tribe close enough to enjoy the Tribe's own immunity." Id. at 23. The c o u r t therefore scheduled an evidentiary hearing on that motion and denied as mo o t BMG's motion to convert the motions to dismiss into Rule 56 motions for s u mma r y judgment. The court also denied BMG's request "to specifically a u t h o r i z e discovery in advance of this hearing," holding that, if the Authority and t h e Casino were entitled to immunity, such discovery would "chip away at the b e n e f i t s of . . . immunity." Id. at 23 n.8. But "[t]o ensure that both sides have a f u l l and fair opportunity to examine the relevant documents and prepare their c a s e , " the district court ordered them to exchange copies of all exhibits ten days b e f o r e the evidentiary hearing and held that the parties could subpoena any other d o c u me n t s up to three days prior to the hearing. 5 Id. I n that same order, the district court denied Mr. Stanley's motion to d i s mi s s , finding that, because BMG was asserting claims against Mr. Stanley in h i s individual rather than official capacity, he was not entitled to tribal sovereign i mmu n i t y . The court also granted the motion to dismiss for lack of personal A l t h o u g h the district court referred only to the parties' ability to s u b p o e n a documents, it indicated at the evidentiary hearing that the parties also c o u l d subpoena witnesses pursuant to Federal Rule of Civil Procedure 45. 7 5 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 8 j u r i s d i c t i o n brought by two employees of the Casino, Jeff Livingston and Vernon D ' M e l l o . They are not parties to this appeal. T h e district court held an evidentiary hearing on the Authority and Casino's mo t i o n to dismiss on October 23, 2007. At the hearing, the parties stipulated to t h e admission of approximately seventy-one exhibits "for the sole purpose of w h e t h e r the Johnson . . . test is met and not for any other issues, such as whether t h e r e has been a waiver of immunity." Aplee. Supp. App. at 99100 (Tr., E v i d e n t i a r y Hr'g, dated Oct. 23, 2007). The court also heard testimony from D u s t i n Graham, the chairperson of the Tribal Council. After the hearing, the p a r t i e s filed a stipulation detailing the agreed-upon facts. In an August 5, 2008, Opinion & Order, the district court evaluated the r e l a t i o n s h i p between the Tribe and the Authority and the Casino under a tenf a c t o r test articulated in an unpublished district court opinion, Johnson v. H a r r a h ' s Kansas Casino Corp., No. 04-4142-JAR, 2006 WL 463138 (D. Kan. F e b . 23, 2006). Under Johnson, there is a threshold financial-liability inquiry that mu s t be satisfied before a court will consider other factors measuring the c l o s e n e s s of the relationship between a tribe and its economic entities. As a p p l i e d here, the inquiry is "whether the Tribe will be financially liable for legal o b l i g a t i o n s incurred by the Casino and the Authority." Aplts. App. at 45. Based o n that threshold inquiry, the district court in this case denied the motion to d i s mi s s . 8 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 9 S p e c i f i c a l l y , the court found that the Authority was governed by a board w i t h identical membership to the Tribe's governing Council. The court further f o u n d that the Authority owns and operates the Casino. But the court n e v e r t h e l e s s concluded that the Authority and the Casino were "non-Indian e n t i t i e s " that were not entitled to invoke the Tribe's sovereign immunity because a judgment against them "w[ould] not result in direct financial liability for the T r i b e or otherwise imperil the Tribe's assets." Id. at 47. Even though the court f o u n d that the Casino's revenues go solely to the Authority and that the Authority t h e n gives that money to the Tribe, the court found that the Tribe's right to r e c e i v e profits would not be threatened by a judgment, only the amount of profits w o u l d be adversely affected. The court reached that conclusion based on "evidence indicat[ing] that the A u t h o r i t y is obligated to pay over to the Tribe at least $1 million per month, r e g a r d l e s s of its actual revenues." Id. at 46. Therefore, "should the actual profits f a l l short, the Authority will borrow or run a deficit to ensure that the Tribe r e c e i v e s that which it is entitled to." Id. at 47. Thus, the court concluded, "the j u d g me n t would neither deprive the Tribe of its asset--the right to receive p r o f i t s -- n o r its guaranteed minimum payment." Id. at 48. The court also found t h a t the Authority was created to serve as a non-immune entity for creditors so t h a t they would be more willing to lend money to the Tribe. The district court a c c o r d i n g l y denied the Authority and the Casino's motion to dismiss. These 9 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 10 i n t e r l o c u t o r y appeals timely followed. DISCUSSION T h e Authority and the Casino 6 argue that the district court erred in denying t h e i r motion to dismiss. They urge us to find that they qualify as subordinate e c o n o mi c entities entitled to tribal sovereign immunity because [ a ]n unincorporated entity created by and wholly owned by a federally recognized Indian tribe for the sole purpose of p r o mo t i n g tribal interests through the ownership and o p e r a t i o n of a Class III Indian gaming facility on behalf of t h e . . . Indian tribe is . . . an Indian entity. [T]o protect c r i t i c a l tribal and federal interests such an entity, [the A u t h o r i t y , ] as well as the Class III Indian gaming facility[, t h e Casino], must be allowed to invoke tribal sovereign i mmu n i t y from suit. A p l t s . Opening Br. at 9. They ask us to reject the Johnson test employed by the M r . Stanley is also a party to this appeal. Although the district court r e j e c t e d Mr. Stanley's motion to dismiss based on its conclusion that he had been s u e d in his individual capacity rather than in an official capacity, that distinction i s not at issue on appeal. The parties now agree that Mr. Stanley was acting in t h e course and scope of his employment at the Casino and, consequently, w h a t e v e r immunity is enjoyed by the Authority and the Casino is shared by Mr. S t a n l e y . See Burrell v. Armijo, 603 F.3d 825, 832 (10th Cir. 2010) ("Tribal s o v e r e i g n immunity generally extends to tribal officials acting within the scope of t h e i r official authority. On the other hand, a tribe's sovereign immunity does not e x t e n d to an official when the official is acting as an individual or outside the s c o p e of those powers that have been delegated to him." (citation omitted) ( i n t e r n a l quotation marks omitted)); Dry v. United States, 235 F.3d 1249, 1253 ( 1 0 t h Cir. 2000) ("Due to their sovereign status, suits against . . . tribal officials i n their official capacity `are barred in the absence of an unequivocally expressed w a i v e r by the tribe or abrogation by Congress.'" (quoting Fletcher v. United S t a t e s , 116 F.3d 1315, 1324 (10th Cir. 1997))). Because the parties agree that M r . Stanley's entitlement to immunity is derivative of any immunity enjoyed by t h e Authority and the Casino, for ease of reference we will discuss only the A u t h o r i t y and the Casino. 10 6 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 11 d i s t r i c t court and instead urge us to consider the factors we recently applied in N a t i v e American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 ( 1 0 t h Cir. 2008)--that is, in particular, the manner in which the entity was c r e a t e d , the purposes the entity was intended to fulfill, and whether the tribe i n t e n d e d for the entity to have immunity. The Authority and the Casino argue t h a t the evidence clearly demonstrates that they were created to serve the Tribe's i n t e r e s t s in economic development, self-sufficiency, and self-governance, and that t h e Tribe intended for them to share in its immunity from suit. The Authority and t h e Casino maintain that, because all revenues generated by the Casino go to the T r i b e through the Authority, and are used exclusively for tribal purposes, any " r e d u c t i o n in revenues [that would be caused by a judgment against the Casino or t h e Authority would] ha[ve] a direct [adverse] impact on the Tribe and its ability t o provide for its economic development, self-sufficiency and welfare of its g o v e r n me n t and members." Aplts. Opening Br. at 23. And, finally, they argue t h a t the Authority and the Casino did not waive their immunity by entering into t h e relevant contracts with BMG. BMG argues that the Authority and the Casino cannot share in the Tribe's s o v e r e i g n immunity because those entities are too far removed from the Tribe. BMG bases its argument on the following contentions: the Tribe is not liable for a j u d g me n t against those entities; the Authority's corporate charter provides that t h e Authority is a separate entity from the Tribe; the Casino's charter provides 11 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 12 t h a t the Tribe is not liable for its actions and that it is owned by the Authority, not t h e Tribe; and the Authority and the Casino's liability insurance will cover any j u d g me n t against them, thereby protecting the Tribe's assets. BMG argues that w e should apply the Johnson factors used by the district court to determine w h e t h e r the Authority and the Casino may share in the Tribe's sovereign i mmu n i t y and disputes the applicability of Native American Distributing. BMG also argues that, if we determine that the Authority and the Casino a r e entitled to tribal sovereign immunity, we should nevertheless hold that they w a i v e d such immunity by agreeing to litigate any disputes in Colorado courts as p a r t of BMG's licensing agreements. Finally, BMG maintains that if we do not a f f i r m the district court's denial of the motions to dismiss, we should direct the d i s t r i c t court on remand to allow BMG to conduct jurisdictional discovery and c a l l witnesses on the issue of tribal sovereign immunity. For the reasons discussed below, we conclude that the district court applied t h e incorrect legal standard--the district court erroneously treated the financial i mp a c t on a tribe of a judgment against its economic entities as a threshold i n q u i r y . Our precedent demonstrates that there is no threshold determination to b e made in deciding whether economic entities qualify as subordinate economic e n t i t i e s entitled to share in a tribe's immunity. Rather, we should look to a v a r i e t y of factors when examining the relationship between the economic entities a n d the tribe, including but not limited to: (1) their method of creation; (2) their 12 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 13 p u r p o s e ; (3) their structure, ownership, and management, including the amount of c o n t r o l the tribe has over the entities; (4) whether the tribe intended for the e n t i t i e s to have tribal sovereign immunity; (5) the financial relationship between t h e tribe and the entities; and (6) whether the purposes of tribal sovereign i mmu n i t y are served by granting immunity to the entities. We conclude that, under these factors, the Authority and the Casino have a s u f f i c i e n t l y close relationship to the Tribe to share in its immunity. Because the d i s t r i c t court wrongly concluded that the Authority and the Casino were not s u b o r d i n a t e economic entities entitled to tribal sovereign immunity, and c o n s e q u e n t l y did not reach the issue of whether the Authority and the Casino w a i v e d their immunity from suit through licensing agreements with BMG, we r e ma n d for the district court to address that question in the first instance. However, for reasons that we discuss below, we do not direct or require the d i s t r i c t court to permit jurisdictional discovery in connection with such further proceedings. I. The Authority and the Casino's Appeal A . Standard of Review O u r inquiry into whether the Authority and the Casino are subordinate e c o n o mi c entities that share in the Tribe's immunity from suit involves a mixed q u e s t i o n of law and fact. This case presents a legal issue--the appropriate test to d e t e r mi n e whether economic entities associated with a tribe may share in the 13 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 14 t r i b e ' s immunity. It also presents a factual issue--involving the application of t h a t test to the relationship between the Tribe and the Authority and the Casino. Ordinarily, "[w]e review de novo a district court's denial of a motion to d i s mi s s based on tribal sovereign immunity." Miner Elec., Inc. v. Muscogee ( C r e e k ) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007). But "[w]here, as here, s u b j e c t - ma t t e r jurisdiction turns on a question of fact, we review the district c o u r t ' s factual findings for clear error and review its legal conclusions de novo." Native Am. Distrib., 546 F.3d at 1293 (emphasis omitted); accord United States e x rel. Ondis v. City of Woonsocket, 587 F.3d 49, 54 (1st Cir. 2009) ("When the d i s t r i c t court does not rule on the pleadings alone but, rather, takes evidence in c o n n e c t i o n with a motion to dismiss for want of subject matter jurisdiction, the c o u r t ' s factual findings are reviewed for clear error."). In this case, the district c o u r t "ha[d] wide discretion to allow affidavits, other documents, and a limited e v i d e n t i a r y hearing," Dry, 235 F.3d at 1253 (quoting Holt v. United States, 46 F . 3 d 1000, 1003 (10th Cir. 1995)) (internal quotation marks omitted), and its " r e f e r e n c e to evidence outside the pleadings d[id] not convert the motion to a R u l e 56 motion [for summary judgment]." Holt, 46 F.3d at 1003. B . Analysis W e would be remiss if we did not begin our discussion of the issues by a c k n o w l e d g i n g the relevant Indian-law context that shapes our analysis. Three ma j o r interrelated concepts play a role in this case: (1) tribal sovereignty, (2) 14 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 15 t r i b a l sovereign immunity, and (3) tribal economic development. As the Supreme C o u r t has recognized, "Indian tribes are distinct, independent political c o mmu n i t i e s , retaining their original natural rights in matters of local s e l f - g o v e r n me n t . Although no longer possessed of the full attributes of s o v e r e i g n t y , they remain a separate people, with the power of regulating their i n t e r n a l and social relations." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 ( 1 9 7 8 ) (citations omitted) (internal quotation marks omitted); accord NLRB v. P u e b l o of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002) ("Indian tribes are n e i t h e r states, nor part of the federal government, nor subdivisions of either. R a t h e r , they are sovereign political entities possessed of sovereign authority not d e r i v e d from the United States, which they predate." (footnote omitted)); Native A m . Church of N. Am. v. Navajo Tribal Council, 272 F.2d 131, 134 (10th Cir. 1 9 5 9 ) ("Indian tribes are not states. They have a status higher than that of states. They are subordinate and dependent nations possessed of all powers [except] to t h e extent that they have expressly been required to surrender them by the s u p e r i o r sovereign, the United States."). Because Indian tribes are sovereign powers, they possess immunity from s u i t to the extent that Congress has not abrogated that immunity and the tribe has n o t clearly waived its immunity. Santa Clara Pueblo, 436 U.S. at 58; Native Am. D i s t r i b . , 546 F.3d at 1293; Berrey v. Asarco Inc., 439 F.3d 636, 643 (10th Cir. 2 0 0 6 ) . Not only is sovereign immunity an inherent part of the concept of 15 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 16 s o v e r e i g n t y and what it means to be a sovereign, but "immunity [also] is thought [ t o be] necessary to promote the federal policies of tribal self[-]determination, e c o n o mi c development, and cultural autonomy." Am. Indian Agric. Credit C o n s o r t i u m , Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1 9 8 5 ) ; accord Patrice H. Kunesh, Tribal Self-Determination in the Age of S c a r c i t y , 54 S.D. L. Rev. 398, 398 (2009) ("Tribal sovereignty and the j u r i s d i c t i o n a l counterpart of tribal sovereign immunity from suit are the bedrock p r i n c i p l e s of tribal self-determination."); see also Felix S. Cohen, Cohen's H a n d b o o k of Federal Indian Law 7.05, 21.02[2] (Nell Jessup Newton et al., e d s . , 2005 ed.). Tribal sovereign immunity may extend to subdivisions of a tribe, including t h o s e engaged in economic activities, provided that the relationship between the t r i b e and the entity is sufficiently close to properly permit the entity to share in t h e tribe's immunity. 7 See Native Am. Distrib., 546 F.3d at 1292; see also, e.g., A l l e n v. Gold Country Casino, 464 F.3d 1044, 104647 (9th Cir. 2006); Ninigret W e recognize that the Supreme Court has expressed reservations a b o u t the extension of tribal immunity to economic activities, but we note that the C o u r t has deferred to Congress in this area. See Kiowa Tribe of Okla. v. Mfg. T e c h s . , Inc., 523 U.S. 751, 75760 (1998); see also Native Am. Distrib., 546 F.3d a t 1293 (in discussing Kiowa Tribe, stating that "[w]hile the Supreme Court has e x p r e s s e d misgivings about recognizing tribal immunity in the commercial c o n t e x t , the Court has also held that the doctrine `is settled law' and that it is not t h e judiciary's place to restrict its application"). And "Congress has consistently r e i t e r a t e d its approval of the immunity doctrine." Okla. Tax Comm'n v. Citizen B a n d Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 510 (1991). 16 7 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 17 D e v . Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st C i r . 2000); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th C i r . 2000). The broad interpretation of tribal sovereign immunity can trace its o r i g i n s to "Congress' desire to promote the `goal of Indian self-government, i n c l u d i n g its "overriding goal" of encouraging tribal self-sufficiency and e c o n o mi c development,'" Citizen Band Potawatomi Indian Tribe, 498 U.S. at 510 ( q u o t i n g California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 ( 1 9 8 7 ) ) , as well as to "Executive Branch policies, and judicial opinions," Prairie B a n d Potawatomi Nation v. Wagnon, 476 F.3d 818, 824 n.9 (10th Cir. 2007). As t h e Ninth Circuit has noted, immunity for subordinate economic entities "directly p r o t e c t s the sovereign Tribe's treasury, which is one of the historic purposes of s o v e r e i g n immunity in general." Allen, 464 F.3d at 1047 (citing Alden v. Maine, 5 2 7 U.S. 706, 750 (1999)). One of the ways that Congress has promoted tribal sovereignty through e c o n o mi c development is particularly relevant to this case--the authorization of I n d i a n gaming. See 25 U.S.C. 2702(1) (stating that the purpose behind the I n d i a n Gaming Regulatory Act is "to provide a statutory basis for the operation of g a mi n g by Indian tribes as a means of promoting tribal economic development, s e l f - s u f f i c i e n c y , and strong tribal governments"); Cabazon Band of Mission I n d i a n s , 480 U.S. at 21819 ("The Cabazon and Morongo Reservations contain no n a t u r a l resources which can be exploited. The tribal games at present provide the 17 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 18 s o l e source of revenues for the operation of the tribal governments and the p r o v i s i o n of tribal services. They are also the major sources of employment on t h e reservations. Self-determination and economic development are not within r e a c h if the Tribes cannot raise revenues and provide employment for their me mb e r s . " ) ; see also generally Indian Gaming Regulatory Act, 25 U.S.C. 27012721 ("IGRA"); Cohen, supra, 12.0102, 21.01. A commentator has observed that "[t]ribal governments directly control or p a r t i c i p a t e in commercial activities more frequently than other [types of] g o v e r n me n t s . . . . [T]he tribal organization may be part of the tribal government a n d protected by tribal immunity, even though it may have a separate corporate s t r u c t u r e . " William V. Vetter, Doing Business with Indians and the Three "S"es: S e c r e t a r i a l Approval, Sovereign Immunity, and Subject Matter Jurisdiction, 36 A r i z . L. Rev. 169, 174 (1994). That leads to the question presented here: "Does t h e resulting entity have a distinct, nongovernmental character and therefore is n o t immune, or is it merely an administrative convenience, i.e., a `subordinate [ t r i b a l ] economic organization,' and therefore immune?" Id. at 176 (alteration in o r i g i n a l ) . Put differently, we must determine whether the Authority and the C a s i n o are "the kind[s] of tribal entit[ies], analogous to a governmental agency, w h i c h should benefit from the defense of sovereign immunity, or whether [they] [ a r e ] more like . . . commercial business enterprise[s], instituted solely for the p u r p o s e of generating profits for [their] private owners." Gavle v. Little Six, 18 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 19 I n c . , 555 N.W.2d 284, 293 (Minn. 1996). BMG does not dispute the general principle that subordinate economic e n t i t i e s may share in a tribe's sovereign immunity; rather, BMG contends that, u n d e r Johnson, the entities in this case may not do so. 8 It argues that the H o w e v e r , BMG plainly is not entirely comfortable with the notion t h a t subordinate economic entities may share in a tribe's sovereign immunity. Its r e l u c t a n c e to endorse that principle is demonstrated by its remark that "the S u p r e me Court has not ruled upon the issue of whether a separate business entity t h a t is directly or indirectly owned by a tribe is subject to tribal immunity." Aplee. Answer Br. & Opening Br. at 19. But BMG's briefing nevertheless f o c u s e s on whether the Authority and the Casino can satisfy the Johnson test. BMG does not ask us to hold that economic entities can never share in a tribe's i mmu n i t y from suit. It is just as well; that ship plainly sailed in Native American D i s t r i b u t i n g . We are bound by that precedent. I n advocating against the application of Native American Distributing at o r a l argument, BMG attempted to distinguish between the types of entities created b y tribes--on the one hand, those created under tribal law, and, on the other hand, t h o s e created under Section 17 of the Indian Reorganization Act, 25 U.S.C. 477, w h i c h authorizes the Secretary of Interior "upon petition by any tribe" to "issue a c h a r t e r of incorporation to such tribe." Id. According to BMG, the Tribe did not a v a i l itself of 477 here, but rather created the Authority and the Casino under t r i b a l law. On the other hand, it argues that in Native American Distributing, w h e r e we concluded that the tribe-related entity was immune from suit, the a n a l y s i s turned on whether the tribe had created a 477 entity. We are inclined, h o w e v e r , to believe that BMG's argument reflects a misreading of that case, w h i c h contains no mention of 477. We also note that Section 17 is not the exclusive means for tribes to i n c o r p o r a t e for business or other purposes--i.e., tribes can c r e a t e corporate entities under their own laws or those of o t h e r sovereigns. The principal legal difference is that, w h i l e section 17 corporations retain their tribal s t a t u s -- a n d , accordingly, sovereign immunity in the a b s e n c e of a "sue and be sued" waiver--the other species o f corporations are not imbued automatically with such (continued...) 19 8 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 20 A u t h o r i t y and the Casino are independent from the Tribe to such a degree that t h e y cannot share in the Tribe's sovereign immunity. Accordingly, we must first d e t e r mi n e the appropriate test to measure the relationship between an Indian tribe a n d its economic entities, and then decide whether the Authority and the Casino a r e subordinate economic entities that share in the Tribe's immunity. 9 8 (...continued) s t a t u s . Courts nonetheless have resorted generally to a mu l t i - f a c t o r inquiry, comparable to that employed in s e c t i o n 17 controversies, to decide whether the corporation c o n s t i t u t e s an "arm of the tribe" and shares in the tribe's i mmu n i t y from suit. Clay Smith, Tribal Sovereign Immunity: A Primer, 50 Advoc. 19, 2021 (May 2 0 0 7 ) (footnotes omitted). However, we need not opine definitely on this p u r p o r t e d distinguishing factor because BMG has waived this argument by not i n c l u d i n g it in its opening brief. We do not consider issues raised for the first t i me at oral argument. See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1 2 1 9 , 1235 n.8 (10th Cir.), cert. denied, 130 S. Ct. 742 (2009). W e note that the courts that have addressed this issue have utilized d i f f e r e n t turns of phrase to describe a tribe's economic entities. If the economic e n t i t i e s are held to be sufficiently close to a tribe so as to share in its sovereign i mmu n i t y , courts have deemed those entities to be, inter alia, "an arm of the t r i b e , " Allen, 464 F.3d at 1046; "a division of the Tribe," Native Am. Distrib., 546 F . 3 d at 1293; "a tribal agency," Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F . 3 d 581, 583 (8th Cir. 1998); and "a sub-entity of the Tribe," Ramey Constr. Co., I n c . v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 320 (10th Cir. 1 9 8 2 ) . Moreover, the doctrine has its roots in the Arizona state courts, which r e f e r to it as "the subordinate economic organization doctrine." See, e.g., Dixon v. P i c o p a Constr. Co., 772 P.2d 1104, 110812 (Ariz. 1989); see also Vetter, supra, 3 6 Ariz. L. Rev. at 177 (referring to "a subordinate tribal organization."). For the s a k e of consistency, we will refer to an economic entity entitled to tribal s o v e r e i g n immunity as a "subordinate economic entity." 20 9 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 21 1 . The appropriate test to determine whether an economic entity i s entitled to tribal sovereign immunity. A s we have stated, to measure the closeness of the relationship between the T r i b e and the Authority and the Casino, the district court applied a test adopted f r o m an unpublished decision from the United States District Court for the D i s t r i c t of Kansas, Johnson v. Harrah's Kansas Casino Corp. To understand that s t a n d a r d , we find it necessary to explain the holding in Johnson in some detail. In that case, Harrah's Kansas Casino Corporation ("Harrah's") had urged the d i s t r i c t court to hold that the plaintiff's claims against it were barred by the d o c t r i n e of tribal sovereign immunity. Harrah's operated Harrah's Prairie Band C a s i n o , pursuant to a Management Agreement between Harrah's and the tribe, on p r o p e r t y held in trust by the United States for the Prairie Band Potawatomi N a t i o n . Johnson, 2006 WL 463138, at *2. Under that agreement, Harrah's c o n d u c t e d the casino's daily operations and the tribe received the total net r e v e n u e from the casino; in return, the tribe paid Harrah's a management fee. Id. The Johnson court concluded that Harrah's was not a tribal housing authority or a t r i b a l agency and that it therefore needed to determine whether Harrah's "[wa]s a ` s u b o r d i n a t e economic organization' of the Tribe." Id. at *4. The court then e x p l a i n e d that [ m]o s t courts addressing the issue have considered some o r all of the following factors: (1) the announced purpose f o r which the entity was formed; (2) whether the entity w a s formed to manage or exploit specific tribal resources; 21 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 22 ( 3 ) whether federal policy designed to protect Indian assets a n d tribal cultural autonomy is furthered by the extension o f sovereign immunity to the entity; (4) whether the entity i s organized under the tribe's laws or constitution rather t h a n federal law; (5) whether the entity's purposes are s i mi l a r to or serve those of the tribal government; (6) w h e t h e r the entity's governing body is comprised mainly o f tribal officials; (7) whether the tribe has legal title or o w n e r s h i p of property used by the entity; (8) whether t r i b a l officials exercise control over the administration or a c c o u n t i n g activities of the organization; (9) whether the t r i b e ' s governing body has power to dismiss members of t h e organization's governing body, and (10) whether the e n t i t y generates its own revenue, whether a suit against the e n t i t y would impact the tribe's fiscal resources, and w h e t h e r it may bind or obligate tribal funds. I d . The Johnson court decided to apply those factors to determine whether the economic entity at issue was entitled to tribal immunity. Significantly, however, i t decided to treat the tenth factor, the financial relationship between the entity a n d the tribe and whether a judgment against the entity would affect tribal assets, a s a threshold determination, just as the Supreme Court of Alaska did in Runyon e x . rel. B.R. v. Association of Village Council Presidents, 84 P.3d 437 (Alaska 2 0 0 4 ) . The Johnson court agreed with Runyon's determination that [ w ]h e n considering whether an entity is an arm of the tribe f o r purposes of tribal sovereign immunity, . . . "the e n t i t y ' s financial relationship with the tribe is . . . of p a r a mo u n t importance--if a judgment against it will not r e a c h the tribe's assets or if it lacks the `power to bind or o b l i g a t e the funds of the [tribe],' it is unlikely that the t r i b e is the real party in interest." On the other hand, . . . t h e entity may be an arm of the tribe if it would be legally r e s p o n s i b l e for the entity's obligations. 22 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 23 J o h n s o n , 2006 WL 463138, at *5 (quoting Runyon, 84 P.3d at 44041). The district court in Johnson therefore first examined "the financial r e l a t i o n s h i p between the Tribe and Harrah's" to determine if Harrah's was e n t i t l e d to share in the tribe's sovereign immunity. Id. "If the Tribe may be f i n a n c i a l l y liable for Harrah's legal obligations, the Court w[ould then] proceed to d i s c u s s [the] other factors pertaining to the purpose and control of Harrah's." Id. The court concluded that it was not clear whether a judgment against Harrah's w o u l d reach the tribe's assets and so proceeded to analyze the remaining factors, u l t i ma t e l y concluding that the balance of the factors "militate[d] against e x t e n d i n g tribal sovereign immunity to . . . Harrah's." Id. at *6, *8. I n applying Johnson, the district court in this case concluded that the A u t h o r i t y and the Casino could not satisfy the threshold inquiry; it determined as a dispositive matter that a judgment against the Authority or the Casino would not e n d a n g e r the Tribe's right to receive profits. On that basis, the court held that t h o s e entities were not entitled to tribal sovereign immunity and declined to reach t h e remaining Johnson factors. We conclude that the district court applied the w r o n g legal standard to determine whether the Authority and the Casino are e n t i t l e d to tribal sovereign immunity. Our recent decision in Native American Distributing reveals the district c o u r t ' s error. In that case, we were asked to decide whether the Seneca-Cayuga T o b a c c o Company, or "SCTC," an enterprise of the Seneca-Cayuga Indian Tribe, 23 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 24 w a s entitled to sovereign immunity. That question in turn depended upon whether S C T C was a division of the tribal corporation, which had waived its immunity f r o m suit, or of the tribe, which had waived its immunity only as to actions of the t r i b a l corporation. Native Am. Distrib., 546 F.3d at 1293. To answer that q u e s t i o n , we examined the tribe's business committee resolution that created SCTC. We determined that "SCTC was a division of the Tribe" based on the f o l l o w i n g facts: the resolution's invocation of the business committee's powers u n d e r the tribal constitution rather than its powers under the corporate charter, t h e r e b y "lend[ing] support to the conclusion that SCTC was created by the Tribe a c t i n g in its governmental, rather than corporate, capacity"; the resolution's e x p r e s s declaration that SCTC would act as an economic development project to p r o v i d e economic opportunities and revenue for the tribe, and its statement that S C T C was an essential governmental function of the tribe; and the resolution's i n c l u s i o n of an express waiver of immunity as to suits brought by a specific ma n a g e me n t company, indicating that the business committee believed SCTC was a division of the tribe that otherwise was entitled to tribal immunity. Id. at 1 2 9 3 9 4 . We therefore looked to the purpose of the entity, whether it was created u n d e r tribal law, and whether the tribe intended for the entity to have tribal i mmu n i t y . T h e most important lesson for our purposes that we glean from Native 24 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 25 A m e r i c a n Distributing is found in what we did not consider--in that case, we did n o t examine the financial relationship between SCTC and the tribe and whether a j u d g me n t against SCTC would reach the tribe's monetary assets, much less d e s i g n a t e that factor as a threshold determination. Although we recognize that t h e financial relationship between a tribe and its economic entities is a relevant me a s u r e of the closeness of their relationship, Native American Distributing p l a i n l y demonstrates that it is not a dispositive inquiry. The district court's d e c i s i o n to treat it as such was error. We therefore must determine the correct legal standard. At this time there i s no need to define the precise boundaries of the appropriate test to determine if a tribe's economic entity qualifies as a subordinate economic entity entitled to s h a r e in a tribe's immunity. In this case, we conclude that the following factors a r e helpful in informing our inquiry: (1) the method of creation of the economic e n t i t i e s ; (2) their purpose; (3) their structure, ownership, and management, i n c l u d i n g the amount of control the tribe has over the entities; (4) the tribe's i n t e n t with respect to the sharing of its sovereign immunity; and (5) the financial r e l a t i o n s h i p between the tribe and the entities. 10 See, e.g., Allen, 464 F.3d at A s the district court in the Western District of Oklahoma commented, " [ a ]l t h o u g h the subordinate economic entity analysis has been widely adopted, its i mp l e me n t a t i o n is rarely uniform." Somerlott v. Cherokee Nation Distribs. Inc., N o . CIV-08-429-D, 2010 WL 1541574, at *3 (W.D. Okla. Apr. 16, 2010); see a l s o Gavle, 555 N.W.2d at 293 (stating that "the demarcation between those b u s i n e s s entities so closely related to tribal governmental interests as to benefit (continued...) 25 10 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 26 1 0 4 6 4 7 ; Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 812 (7th Cir. 1 9 9 3 ) ; Gavle, 555 N.W.2d at 29495; Ransom v. St. Regis Mohawk Educ. & C m t y . Fund, Inc., 658 N.E.2d 989, 99293 (N.Y. 1995); Dixon, 772 P.2d at 1 1 0 9 1 1 ; Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65, 6772 (Cal. C t . App. 1999); Vetter, supra, at 17679; cf. Dillon, 144 F.3d at 583 (evaluating w h e t h e r tribal housing authority was a corporation created by the tribe and s u b j e c t to suit). Furthermore, our analysis also is guided by a sixth factor: the p o l i c i e s underlying tribal sovereign immunity and its connection to tribal e c o n o mi c development, and whether those policies are served by granting i mmu n i t y to the economic entities. See Dixon, 772 P.2d at 1111 ("Tribal i mmu n i t y should only apply when doing so furthers the federal policies behind t h e immunity doctrine." (citing Note, Tribal Sovereign Immunity: Searching for S e n s i b l e Limits, 88 Colum. L. Rev. 173, 183, 186 (1988))); Gavle, 555 N.W.2d at 2 9 4 (courts should determine "whether federal policies intended to promote (...continued) f r o m the tribe's sovereign immunity and those so far removed as to be treated as me r e commercial enterprises is not as clear" and that "`whether tribal sovereign i mmu n i t y now extends to commercial activities is an important, complex and u n r e s o l v e d question,' which the U.S. Supreme Court has never directly c o n s i d e r e d " (quoting In re Greene, 980 F.2d 590, 60001 (9th Cir. 1992))). Accordingly, we have looked to the various tests used by federal courts, as well a s state courts, and have identified factors we believe to be most helpful in this p a r t i c u l a r instance. We have not concluded that those factors constitute an e x h a u s t i v e listing or that they will provide a sufficient foundation in every i n s t a n c e for addressing the tribal-immunity question related to subordinate e c o n o mi c entities. 26 10 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 27 I n d i a n tribal autonomy are furthered by the extension of immunity to the business e n t i t y " ) . Those policies include protection of the tribe's monies, see Cabazon B a n d of Mission Indians, 480 U.S. at 21819; Allen, 464 F.3d at 104647, as well a s "preservation of tribal cultural autonomy, preservation of tribal selfd e t e r mi n a t i o n , and promotion of commercial dealings between Indians and nonI n d i a n s , " Dixon, 772 P.2d at 1111. We will therefore consider these factors in d e t e r mi n i n g whether the Authority and the Casino are subordinate economic e n t i t i e s of the Tribe and entitled to share in the Tribe's sovereign immunity. 2 . Whether the Authority and the Casino are entitled to share in t h e Tribe's sovereign immunity. a . BMG's challenge to the district court's discovery and e v i d e n t i a r y rulings. B e f o r e we evaluate those factors, we first must address BMG's argument t h a t the district court abused its discretion in denying its request for discovery and i n preventing BMG from calling what it deemed to be necessary witnesses. If we w e r e to conclude that the district court did abuse its discretion in limiting j u r i s d i c t i o n a l discovery, we likely would remand the matter for discovery and f u r t h e r factual development. BMG moved in the district court for leave to conduct limited discovery on t h e issue of tribal sovereign immunity. The court denied the motion, expressing i t s concern that discovery would undermine the purposes behind the immunity d o c t r i n e . But the district court did permit the parties to subpoena documents and 27 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 28 w i t n e s s e s . Consequently, the evidence upon which the district court based its d e n i a l of Defendants' motion to dismiss consisted of documents introduced by the A u t h o r i t y and the Casino at the evidentiary hearing (with an admissibility s t i p u l a t i o n from BMG), testimony by the tribal chairperson, Dustin Graham, and t h e stipulated agreed-upon facts filed by the parties. BMG argues that "the denial o f discovery prejudiced BMG because . . . BMG could only utilize documents that t h e [Authority and the Casino] `cherry picked' in the belief they would support t h e i r case." Aplee. Answer Br. & Opening Br. at 54. Additionally, BMG argues i t was prejudiced by not being allowed to call as witnesses two individuals it had s u b p o e n a e d -- J e f f Livingston, the Casino's general manager, and Dixie Jackson, t h e former chairperson of the Authority. Those witnesses did not appear at the h e a r i n g . BMG asserts that Mr. Graham did not have the same amount of k n o w l e d g e about the Authority and the Casino as the witnesses it would have l i k e d to examine. Because a 12(b)(1) motion is "a `speaking motion' and can include r e f e r e n c e s to evidence extraneous to the complaint without converting it to a Rule 5 6 motion," the district court "ha[d] wide discretion to allow affidavits, d o c u me n t s and even a limited evidentiary hearing to resolve disputed j u r i s d i c t i o n a l facts under 12(b)(1)." Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 ( 1 0 t h Cir. 1987); accord Zappia Middle E. Constr. Co. Ltd. v. Emirate of Abu D h a b i , 215 F.3d 247, 253 (2d Cir. 2000). "If . . . the court holds an evidentiary 28 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 29 h e a r i n g to adjudicate the issue of whether the court has jurisdiction . . . , the court d e t e r mi n e s the credibility of witness testimony, weighs the evidence, and finds t h e relevant jurisdictional facts." PVC Windoors, Inc. v. Babbitbay Beach C o n s t r . , N.V., 598 F.3d 802, 810 (11th Cir. 2010). As with the court's handling of discovery in other stages of litigation, in t h e context of a 12(b)(1) motion, "[w]e give the district court much room to shape d i s c o v e r y , " Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F . 3 d 219, 225 (D.C. Cir. 2009), and review the district court's handling of j u r i s d i c t i o n a l discovery under an abuse-of-discretion standard, Cheyenne Arapaho T r i b e s of Okla. v. United States, 558 F.3d 592, 596 (D.C. Cir. 2009). See also T r e n t a d u e v. F.B.I., 572 F.3d 794, 806 (10th Cir. 2009). Similarly, we review the c o u r t ' s evidentiary rulings, including the court's decision to exclude evidence or t e s t i mo n y , for abuse of discretion. See La Resolana Architects, PA v. Reno, Inc., 5 5 5 F.3d 1171, 118081 (10th Cir. 2009); Polys v. Trans-Colo. Airlines, Inc., 941 F . 2 d 1404, 140708 (10th Cir. 1991). "A district court abuses its discretion w h e r e it commits a legal error or relies on clearly erroneous factual findings, or w h e r e there is no rational basis in the evidence for its ruling." Trentadue, 572 F . 3 d at 806 (quoting Breaux v. Am. Family Mut. Ins. Co., 554 F.3d 854, 866 (10th C i r . 2009)) (internal quotation marks omitted). W e are not persuaded that the district court abused its discretion in this c a s e . We have held that "a refusal to grant [jurisdictional] discovery constitutes 29 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 30 a n abuse of discretion if the denial results in prejudice to a litigant" and that " [ p ]r e j u d i c e is present where `pertinent facts bearing on the question of j u r i s d i c t i o n are controverted . . . or where a more satisfactory showing of the facts i s necessary.'" Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1326 ( 1 0 t h Cir. 2002) (quoting Wells Fargo & Co. v. Wells Fargo Express Co., 556 F . 3 d 406, 430 n.24 (9th Cir. 1977)). BMG has failed to convince us of its legal e n t i t l e me n t to jurisdictional discovery and, more specifically, that it was p r e j u d i c e d by the district court's denial of its motion for discovery. 11 First, BMG O u r research reveals that we previously have placed the burden of d e mo n s t r a t i n g a legal entitlement to jurisdictional discovery--and the related p r e j u d i c e flowing from the discovery's denial--on the party seeking the d i s c o v e r y ; but we have done so only in unpublished, non-binding cases. See, e.g., X i e v. Univ. of Utah, 243 F. App'x 367, 37576 (10th Cir. 2007) (holding in the R u l e 12(b)(1) context that the movant had failed to establish that the court's d e n i a l of her request for jurisdictional discovery had prejudiced her); cf. United S t a t e s v. Cervantes, 267 F. App'x 741, 744 n.2 (10th Cir. 2008) (in denying a r e q u e s t for a COA for a 2255 motion, stating that the petitioner "never renewed h i s motion [for discovery and an evidentiary hearing], so the responsibility for t h i s outcome lies with him"). We are persuaded by those cases. We also note t h a t placing the burden on the party that has sought jurisdictional discovery is in a c c o r d with the general approach of at least three other circuits--the Fifth, S e v e n t h , and Ninth Circuits. See Freeman v. United States, 556 F.3d 326, 34142 ( 5 t h Cir.), cert. denied, 130 S. Ct. 154 (2009); Boschetto v. Hansing, 539 F.3d 1 0 1 1 , 1020 (9th Cir. 2008); Searls v. Glasser, 64 F.3d 1061, 106869 (7th Cir. 1 9 9 5 ) . Requiring the party challenging the denial of jurisdictional discovery to p r o v e prejudice is particularly fitting when a party has challenged the district c o u r t ' s subject matter jurisdiction on immunity grounds. In that context, we have c o n c e r n s about burdening the potentially sovereign party with discovery, as the d i s t r i c t court in this case recognized. Cf. Freeman, 556 F.3d at 341 (in discussing t h e burden the Fifth Circuit places on a party seeking discovery on summary j u d g me n t to show that discovery is necessary, stating that "[t]his is particularly t r u e where the party seeking discovery is attempting to disprove the applicability (continued...) 30 11 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 31 d i d not renew its motion for discovery at the evidentiary hearing. That alone ma k e s us inclined to find that BMG bears the responsibility for any purported e v i d e n t i a r y deficiencies at the hearing and effectively forfeited its challenge. But t h e r e is more. At the evidentiary hearing, BMG stipulated to the admissibility of a p p r o x i ma t e l y seventy-one exhibits. Counsel for BMG then essentially conceded t h a t BMG had not been prejudiced by the lack of discovery. Not only did counsel e x p r e s s a desire to go forward with the hearing, but in response to the district c o u r t ' s inquiry about the missing witnesses, counsel stated that, based solely on t h e evidence presented at the hearing, he was "confident . . . that the Court will s e e how the documents at hand, in particular one document, . . . establishes this c a s e . " Aplee. Supp. App. at 123. Furthermore, BMG does not tell us what specific documents it would have s o u g h t in discovery. Nor does BMG offer any support for its claim that the A u t h o r i t y and the Casino "cherry picked" documents they believed were (...continued) o f an immunity-derived bar to suit because immunity is intended to shield the d e f e n d a n t from the burdens of defending the suit, including the burdens of d i s c o v e r y " ) ; Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1 9 9 2 ) (discussing tension between discovery and protecting a sovereign's l e g i t i ma t e claim to suit and stating that "[a]t the very least, discovery should be o r d e r e d circumspectly and only to verify allegations of specific facts crucial to an i mmu n i t y determination"); cf. also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ( n o t i n g that one purpose of resolving qualified immunity early in the litigation is " t o avoid subjecting government officials . . . to the burdens of broad-reaching d i s c o v e r y " (alteration omitted) (internal quotation marks omitted)). 31 11 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 32 f a v o r a b l e to their claim of tribal immunity. See Freeman, 556 F.3d at 342 ("The p a r t y seeking discovery typically . . . alleg[es] the `specific facts crucial to i mmu n i t y which demonstrate[] a need for discovery.'" (second alteration in o r i g i n a l ) (quoting Kelly v. Syria Shell Petroleum Co. B.V., 213 F.3d 841, 852 (5th C i r . 2000))); Boschetto, 539 F.3d at 1020 (holding that the district court's denial o f a request for jurisdictional discovery was not an abuse of discretion where the r e q u e s t "was based on little more than a hunch that it might yield jurisdictionally r e l e v a n t facts"); cf. Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 (10th Cir. 2 0 0 8 ) ("A party may not invoke Rule 56(f) `by simply stating that discovery is i n c o mp l e t e but must state with specificity how the additional material will rebut t h e summary judgment motion.'" (quoting Libertarian Party of N.M. v. Herrera, 5 0 6 F.3d 1303, 130809 (10th Cir. 2007))). Indeed, BMG's conclusory assertion t h a t jurisdictional discovery was necessary seems almost like an attempt to "use d i s c o v e r y as a fishing expedition" rather than to obtain needed documents to d e f e a t the tribal immunity claim. Anthony v. United States, 667 F.2d 870, 880 ( 1 0 t h Cir. 1981). We also fail to see how the district court abused its discretion in effectively p r e v e n t i n g BMG from examining certain witnesses. 12 At the evidentiary hearing, I t is not entirely clear from the record whether the district court took a n affirmative action that amounted to a ruling that BMG was not permitted to c a l l Mr. Livingston and Ms. Jackson. BMG's counsel objected to the witnesses' a b s e n c e , and the district court permitted him to make a proffer as to their (continued...) 32 12 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 33 w h e n asked to make a proffer as to what those witnesses' testimony would have b e e n , counsel was unable to explain how Mr. Livingston's or Ms. Jackson's t e s t i mo n y would have differed from Mr. Graham's. Cf. Polys, 941 F.2d at 1 4 0 6 1 1 (finding that the district court did not err in excluding deposition t e s t i mo n y because plaintiffs did not make an offer of proof). And BMG does not e x p l a i n on appeal what the value of the missing witnesses' testimony would have b e e n , particularly in light of the fact that BMG had the opportunity to examine a h i g h e r - r a n k e d tribal official, the tribal Chairperson. BMG offers no support for i t s conclusory assertion that Mr. Graham was not as knowledgeable as the missing w i t n e s s e s about the Authority and the Casino. Because we conclude that the d i s t r i c t court did not abuse its discretion in its denial of jurisdictional discovery, w e will therefore proceed to determine whether the facts support the Authority a n d the Casino's claim that they are subordinate economic entities entitled to t r i b a l sovereign immunity. (...continued) p r o b a b l e testimony. Counsel stated that he "c[ould ]not say how Mr. Livingston w o u l d testify differently [than] Mr. Graham." Aplee. Supp. App. at 149. The c o u r t never made an explicit ruling, but we conclude that the court must have d e c i d e d tacitly that it would not allow BMG to call those witnesses at a later date b e c a u s e it then heard closing arguments and issued a ruling without comment. We will therefore analyze BMG's challenge under the assumption that the district c o u r t denied BMG the opportunity to call those witnesses. 33 12 Appellate Case: 08-1298 Document: 01018557432 Date Filed: 12/27/2010 Page: 34 b . Whether the Authority and the Casino are subordinate e c o n o m i c entities that share in the Tribe's sovereign immunity. A s we have stated, we will review the record in light of the following f a c t o r s : (1) the method of the Authority and the Casino's creation; (2) their p u r p o s e ; (3) their structure, ownership, and management, including the amount of c o n t r o l the Tribe has over the entities; (4) whether the Tribe intended for them to h a v e tribal sovereign immunity; (5) the financial relationship between the Tribe a n d the Authority and the Casino; and (6) whether the purposes of tribal s o v e r e i g n immunity are served by granting them immunity. 13 A l t h o u g h the district court did not evaluate all of these factors b e c a u s e it erroneously concluded that the financial relationship between the Tribe a n d the Authority and the Casino was dispositive, we do not choose to remand t h i s case for the district court to weigh them in the first instance. Because these f a c t o r s were part of the Johnson test, the district court received evidence s u f f i c i e n t for us to evaluate these factors on appeal. Moreover, because the b a l a n c e of the factors weighs so strongly in favor of immunity--as we discuss i n f r a -- i t would be an imprudent allocation of judicial resources to remand this ma t t e r . W e also note that in evaluating these factors, we need not decide whether t h e Authority and the Casino are located on Indian lands. BMG vigorously argues t h a t they are not, contending that their purported location outside of Indian land u n d e r mi n e s their claim that their operations further tribal economic development a n d self-determination. See Aplee. Answer & Opening Br. at 29 ("While the R e s o r t Parties argue that granting immunity will promote `tribal economic d e v e l o p me n t , self sufficiency, and strong tribal governments,' they do not address h o w compelling a separate business entity that operates outside of `Indian Lands' t o comply with U.S. copyright and trademark laws will weaken its government, c a u s e it to be less self-sufficient, or will impact its economic development." ( q u o t i n g Aplts. Opening Br. at 12)). However, this factor did not appear to be a s i g n i f i c a n t one to the Native American Distributing court; it did not discuss (continued...) 34 13 Appellate Case: 08-1298 Document: 01018557432 Date Filed:

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