AMERIND Risk Management Corporation v. Blackfeet Housing
MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting Plaintiff's 28 MOTION for Summary Judgment ; denying Defendant's 34 Opposed CROSS-MOTION for Summary Judgment . (bap)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
AMERIND RISK MANAGEMENT
CORPORATION, a federally chartered
Section 17 Tribal Corporation,
No. 16 CV 1093 JAP/KK
MEMORANDUM OPINION AND ORDER
Plaintiff Amerind Risk Management Corporation (Plaintiff) seeks declaratory and
injunctive relief from litigation brought by Defendant Blackfeet Housing (Defendant) in the
Blackfeet Tribal Courts.1 The Court previously denied Defendant’s motion to dismiss for lack of
jurisdiction after concluding that the Court has subject matter jurisdiction over this case under 28
U.S.C. § 1332 and personal jurisdiction over Defendant.2 The Court also found that Plaintiff has
exhausted tribal remedies, so that its challenge to the jurisdiction of the Blackfeet Tribal Courts
may go forward in this Court. Both parties have now moved for summary judgment, and the
motions are fully briefed.3 The Court will grant summary judgment in favor of Plaintiff.
COMPLAINT (Doc. No. 1).
MEMORANDUM OPINION AND ORDER (Dec. 29, 2016) (Doc. No. 20).
MOTION FOR SUMMARY JUDGMENT (Doc. No. 28); CROSS-MOTION FOR SUMMARY JUDGMENT
(Doc. No. 34); DEFENDANT’S MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY
JUDGMENT AND RESPONSE TO AMERIND’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 33);
AMERIND’S COMBINED RESPONSE TO BLACKFEET HOUSING’S MOTION FOR SUMMARY
JUDGMENT AND REPLY IN SUPPORT OF AMERIND’S MOTION FOR SUMMARY JUDGMENT (Doc. No.
36); DEFENDANT'S REPLY IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. No.
Although the issues before this Court are jurisdictional, at the root of the conflict between
the parties is a dispute over insurance coverage. Plaintiff is a federally chartered tribal
corporation formed under Section 17 of the Indian Reorganization Act, 25 U.S.C. § 5124
(formerly § 477). See Charter of Incorporation (Doc. No. 12-2). The charter tribes are the Red
Lake Band of Chippewa Indians, the Confederated Salish and Kootenai Tribes of the Flathead
Reservation, and the Pueblo of Santa Ana. Plaintiff was formed to provide risk-sharing selfinsurance for tribal governments and entities in response to a lack of affordable insurance options
on tribal lands. Plaintiff has over 400 tribal member entities that contribute capital to a risk pool
for each line of coverage, from which Plaintiff pays all covered claims. Members’ participation
in the risk-sharing group is governed by contractual agreement.
Defendant is a member entity that entered into a Participation Agreement (PA) (Doc. No.
17-1) in March 2012 to join Plaintiff’s Tribal Operations Protection Plan (TOPP) risk pool. The
PA provides that participants in TOPP “agree to jointly share in the costs of protecting against
financial loss and in the monetary claims that may arise from financial loss.” In return, the PA
guarantees that TOPP will indemnify members “in accordance with any coverage documents
issued to the Participant and this agreement, but only from the assets of TOPP.”
The PA contains procedures for the resolution of any disputes between Plaintiff and
TOPP participants that arise out of or are related to the PA. Disagreements must first be
addressed through informal mediation, which, if not successful within 90 days, is to be followed
by binding arbitration according to a specified process. Arbitration is to be held in Albuquerque,
New Mexico, and the arbitrator is to apply the substantive law of the Pueblo of Santa Ana. Any
award may be entered and enforced only in one of three Courts of Competent Jurisdiction: this
Court, the Second Judicial District Court of the State of New Mexico, or the Pueblo of Santa Ana
Tribal Court. Either party may also bring an action in any of the Courts of Competent
Jurisdiction to compel arbitration, determine the validity of the PA, determine the authority of
the signatories to the PA, or determine whether tribal sovereign immunity or tribal remedies have
As a participant in TOPP governed by the March 2012 PA, Defendant obtained four
insurance policies from Plaintiff. Defendant contacted Plaintiff in April 2013 regarding issues
with some of its covered properties. Then in August 2013 Defendant made formal claims under
its policies for damage to 130 dwellings. In February 2014, while Plaintiff was still evaluating
the claims, Defendant sent Plaintiff a demand for over 1.4 million dollars. Plaintiff denied the
claims in March 2014. Defendant, rather than invoking the dispute resolution procedures
contained in the PA, filed suit against Plaintiff in the Blackfeet Tribal Court alleging breach of
fiduciary duty, breach of contract, breach of the duty of good faith, and violations of Blackfeet
tribal law. See Blackfeet Hous. v. Amerind Risk Mgmt. Corp., Case No. 2014 CA-60 (filed April
18, 2014) (Doc. No. 28-2).
Plaintiff made a special appearance in the Blackfeet Tribal Court and moved to dismiss
the suit for lack of jurisdiction, asserting sovereign immunity and relying on the choice of forum
provision in the PA. But the Blackfeet Tribal Court denied Plaintiff’s motion to dismiss after
concluding that Plaintiff did not have tribal sovereign immunity and that the Blackfeet Tribal
Court had jurisdiction to decide Defendant’s claim. See Blackfeet Hous. v. Amerind Risk Mgmt.
Corp., Case No. 2014 CA-60 (Order filed Oct. 1, 2015) (Doc. No. 17-2). Plaintiff appealed the
jurisdictional issue to the Blackfeet Court of Appeals, which heard oral argument on March 22,
2016, but had not yet decided the case in October 2016 when Plaintiff filed this suit for
declaratory and injunctive relief from the tribal litigation.
The Blackfeet Court of Appeals issued its decision in November 2016, holding that
Plaintiff did have tribal sovereign immunity as a Section 17 tribal corporation, but that Plaintiff
had waived that immunity by including an arbitration clause in the PA. See Blackfeet Hous. v.
Amerind Risk Mgmt. Corp., Cause No. 2015-AP-09 (Order filed Nov. 7, 2016) (Doc. No. 17-3).
The Blackfeet Court of Appeals acknowledged Plaintiff’s argument that any waiver of immunity
was limited to the courts specified in the PA for enforcement of the arbitration provision, and
stated that it would normally agree. See id. at 16, ¶ 20. But without giving any reason for
broadening the limited waiver, the Blackfeet Court of Appeals appears to have concluded that it
had jurisdiction. See id. at 16–18, ¶¶ 20–25. The Blackfeet Court of Appeals ordered the parties
to “proceed to mediation as contemplated by the Participation Agreement and thereafter to
arbitration if needed.” See id. at 18, ¶ 25. Because it concluded that Plaintiff “previously failed to
properly mediate this dispute, and caused Blackfeet Housing to incur costs for an illusory
mediation at great expense,” the Blackfeet Court of Appeals ordered that Plaintiff would be
“responsible for the entire expense of the future mediation.” See id. at 18, ¶ 25. The tribal court
has since denied Defendant’s motions to reconsider this ruling and to allow a rehearing.4 The
issue of the Blackfeet Tribal Court’s jurisdiction is now before this Court.
“[T]he scope of a tribal court’s jurisdiction is a federal question over which federal
district courts have jurisdiction.” Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1234
(10th Cir. 2014) (internal quotation marks omitted) (considering a tribal court’s exercise of
NOTICE OF FILINGS IN BLACKFEET COURT OF APPEALS (Doc. No. 37); NOTICE OF ORDER BY
BLACKFEET COURT OF APPEALS (Doc. No. 41).
jurisdiction over another tribe). Summary judgment may be granted if the moving party shows
“there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When applying this standard, [the Court]
view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000) (internal
quotation marks omitted). The court will analyze each motion individually and on its own merits
if both parties have moved for summary judgment. See Buell Cabinet Co. v. Sudduth, 608 F.2d
431, 433 (10th Cir. 1979) (explaining that “[c]ross-motions for summary judgment are to be
treated separately; the denial of one does not require the grant of another.”). Cross-motions for
summary judgment entitle the Court “to assume that no evidence needs to be considered other
than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes
remain as to material facts.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1148 (10th Cir. 2000). “A fact is material only if it might affect the outcome of the suit
under the governing law. And a dispute over a material fact is genuine only if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Bennett v.
Windstream Commc’ns, Inc., 792 F.3d 1261, 1265–66 (10th Cir. 2015). “Where the facts are not
in dispute . . . , summary disposition is appropriate.” Christian Heritage Acad. v. Okla.
Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1030 (10th Cir. 2007).
Plaintiff contends that as a federally-chartered tribal corporation formed under Section
17, it possesses tribal sovereign immunity that it has waived only in the limited circumstances
specified in the PA. Plaintiff asks the Court to declare that it has sovereign immunity from suit in
the Blackfeet Tribal Courts, which consequently lack jurisdiction over Defendant’s claims, and
that the dispute resolution procedures specified in the PA are applicable to the conflict. Plaintiff
requests that the Court enjoin Defendant from attempting to further litigate this matter in the
Blackfeet Tribal Courts or to enforce the invalid order of the Blackfeet Court of Appeals. By
contrast, Defendant asserts that dispute resolution between the parties is governed by the TOPP
Scope of Coverage Document (Doc. No. 36-1) (SCD) rather than the PA, and that in the SCD
Plaintiff consented to the jurisdiction of the Blackfeet Tribal Courts and waived any sovereign
immunity it might have. Additionally, Defendant disputes Plaintiff’s entitlement to sovereign
immunity and argues that jurisdiction is proper in the Blackfeet Tribal Courts based on Montana
v. United States, 450 U.S. 544 (1981).
“Indian tribes are distinct, independent political communities, retaining their original
natural rights in matters of local self-government. Although no longer possessed of the full
attributes of sovereignty, they remain a separate people, with the power of regulating their
internal and social relations.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (citations
omitted) (internal quotation marks omitted). Because tribes retain sovereign powers, they possess
immunity from suit to the extent that Congress has not abrogated that immunity and the tribe has
not clearly waived its immunity. Id. at 58. “[S]overeign immunity [is] an inherent part of the
concept of sovereignty and . . . ‘is . . . necessary to promote . . . tribal self-determination,
economic development, and cultural autonomy.’” Breakthrough Mgmt. Grp., Inc. v. Chukchansi
Gold Casino & Resort, 629 F.3d 1173, 1182 (10th Cir. 2010) (quoting Am. Indian Agric. Credit
Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1985)) (internal
“Tribal sovereign immunity may extend to subdivisions of a tribe, including those
engaged in economic activities, provided that the relationship between the tribe and the entity is
sufficiently close to properly permit the entity to share in the tribe’s immunity.” Breakthrough
Mgmt. Grp., 629 F.3d at 1183. Subordinate economic entities may be created by tribes through
incorporation under tribal or state law, or under Section 17 of the Indian Reorganization Act, 25
U.S.C. § 5124 (formerly § 477), which authorizes the Secretary of Interior “upon petition by any
tribe” to “issue a charter of incorporation to such tribe.” Id. at 1184 n.8.
“[S]ection 17 corporations retain their tribal status—and, accordingly, sovereign
immunity in the absence of a ‘sue and be sued’ waiver[.]” Id. (quoting Clay Smith, Tribal
Sovereign Immunity: A Primer, 50 Advoc. 19, 20–21 (May 2007) (footnotes omitted)); see also
Bales v. Chickasaw Nation Indus., 606 F.Supp.2d 1299, 1304, 1306 (D.N.M. 2009). It is
therefore unnecessary to apply the “arm of the tribe” test when determining immunity. Bales,
606 F.Supp.2d at 1306. Plaintiff’s charter does contain a “sue and be sued” clause. See Charter, §
8.18 (Doc. No. 12-2). However, this provision is not a blanket waiver of sovereign immunity
because it requires that Plaintiff’s sovereign immunity be specifically waived for each particular
suit. Id. Any waiver must be in the form of a resolution adopted by the Board of Directors and
must specify the parties and claims for which the waiver is granted. See id. at §§ 16.2–16.4. The
Court therefore concludes, as the Blackfeet Court of Appeals acknowledged, that Plaintiff
possesses tribal sovereign immunity as a federally-chartered Section 17 corporation. See Charter,
§§ 4.2, 16.1 (Doc. No. 12-2) (providing that Plaintiff shares in the immunities of the chartering
tribes); Nov. 7 Order, Doc. No. 17-3.
Tribal sovereign immunity is a jurisdictional issue. Bonnet v. Harvest (U.S.) Holdings,
Inc., 741 F.3d 1155, 1158 (10th Cir. 2014). Because Plaintiff is entitled to sovereign immunity
from suit, it is subject to the jurisdiction of the Blackfeet Tribal Courts only if Plaintiff has
waived that immunity in relation to the lawsuit brought by Defendant. The Blackfeet Court of
Appeals concluded that Plaintiff had waived its immunity by the inclusion of an arbitration
clause within the PA, and it ordered the parties to comply with the provisions of the PA by
participating in mediation and in arbitration if necessary. Doc. No. 17-3 at 18, ¶¶ 24–25. Plaintiff
argues that the Blackfeet Court of Appeals was incorrect when it determined that Plaintiff had
waived its immunity from suit in the Blackfeet Tribal Courts by the terms of the PA. “[A] federal
court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its
jurisdiction.” Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 853 (1985).
“It is settled that a waiver of sovereign immunity ‘cannot be implied but must be
unequivocally expressed.’” Santa Clara Pueblo, 436 U.S. at 58 (quoting United States v. Testan,
424 U.S. 392, 399 (1976)). An arbitration clause can constitute a clear waiver of immunity from
suit brought to enforce an arbitration award. See C & L Enters., Inc. v. Citizen Band Potawatomi
Indian Tribe of Okla., 532 U.S. 411, 418 (2001). In C & L Enterprises, the Supreme Court relied
on provisions of a construction contract between a tribe and a contractor which “require[d]
resolution of all contract-related disputes between C & L and the Tribe by binding arbitration
[and stipulated that] ensuing arbitral awards may be reduced to judgment ‘in accordance with
applicable law in any court having jurisdiction thereof.’” Id. at 419. The contract specified that it
was governed by “the law of the place where the Project is located[,]” in that case Oklahoma. Id.
Oklahoma law vested jurisdiction to enforce an arbitration award in “any court of competent
jurisdiction of this state.” Id. at 419–20. The Supreme Court therefore concluded that the tribe
had waived its immunity from a suit brought in the Oklahoma state court to enforce an
arbitration award entered on a contractual dispute. Id. at 423.
Defendant did not bring suit against Plaintiff in the Blackfeet Tribal Courts to enforce an
arbitration award, but C & L Enterprises might be interpreted to suggest more broadly that a
clause agreeing to arbitration could waive immunity from judicial enforcement of all of the
contractual terms governing the arbitration. But unlike the tribe in C & L Enterprises, Plaintiff
did not consent to the enforcement of the PA in any court. The PA specifies that an arbitration
award may be entered and enforced only in this Court, the Second Judicial District Court of the
State of New Mexico, or the Pueblo of Santa Ana Tribal Court. Under the terms of the PA either
party may also bring an action to compel arbitration only in one of these three courts.
“[W]aivers of sovereign immunity are to be read narrowly and conditions on the waiver
are to be strictly observed.” Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673
F.2d 315, 320 (10th Cir. 1982). “When consent to be sued is given, the terms of the consent
establish the bounds of a court’s jurisdiction.” Id. “A sovereign entity, such as a tribal
corporation, may choose to waive its immunity as to certain claims, but not others, or it may set
limits on an immunity waiver safe in the knowledge that a more extensive waiver cannot be
implied[.]”Atlantic Richfield Co. v. Pueblo of Laguna, No. 1:15-cv-56-JAP/KK, 2016 WL
3574150, at *4 (D.N.M. May 20, 2016) (Unpublished). Consequently, any waiver based on the
arbitration clause of the PA is limited to the three courts described in the PA. The Blackfeet
Court of Appeals erred when it concluded that the arbitration clause in the PA constituted a
waiver of Plaintiff’s sovereign immunity such that the Blackfeet Tribal Courts had jurisdiction to
enforce the terms of the PA.
But even though the Blackfeet Court of Appeals ordered compliance with the arbitration
provisions of the PA, compulsion of arbitration was not the purpose of Defendant’s action in
tribal court. Defendant brought a variety of claims against Plaintiff, and the Blackfeet Court of
Appeals appears to have determined that Plaintiff had waived its sovereign immunity from all
suits arising from the contractual dispute. See Doc. No. 17-3 at 15–18. Defendant does not rely
on the reasoning of the Blackfeet Court of Appeals, and it admits that the arbitration provisions
of the PA provide no basis for the Blackfeet Tribal Courts to assert jurisdiction. See Def. Mot. at
6–7. Instead, Defendant contends that Plaintiff waived its immunity from suit in the Blackfeet
Tribal Courts through the SCD and through representations in its marketing materials that it was
willing to litigate in tribal court. Accordingly, the Court will consider whether Defendant has
proven Plaintiff’s waiver of immunity from Defendant’s tribal court suit through those
Defendant points to two sections in the SCD in which it asserts Plaintiff waived its
immunity from suit in the Blackfeet Tribal Courts. Defendant first relies on paragraph 12 of the
general coverage conditions, which prohibits legal action by a TOPP participant against Plaintiff
prior to the determination of the amount of Plaintiff’s obligation to pay on a third-party claim
through either a settlement agreement or “a trial in a court of competent jurisdiction.” Doc. No.
36-1. But this provision says nothing regarding suits against Plaintiff as a party other than to
prevent their initiation prior to a determination of damages. Additionally, this clause is
inapplicable to Defendant’s suit against Plaintiff in the Blackfeet Tribal Court, which does not
involve a third party claimant. See TPLC, Inc. v. United Nat. Ins. Co., 44 F.3d 1484, 1496 (10th
Cir. 1995). And the Tenth Circuit Court of Appeals has held that the phrase “court of competent
jurisdiction” does not unequivocally waive sovereign immunity in a court that would otherwise
lack jurisdiction. See Santana v. Muscogee (Creek) Nation ex rel. River Spirit Casino, 508 F.
App’x 821, 823 (10th Cir. 2013). Consequently, paragraph 12 does not clearly waive Plaintiff’s
sovereign immunity from Defendant’s tribal court claims.
Defendant then looks to paragraph 15 of the general coverage conditions, which specifies
arbitration methods in the case of a disagreement over whether coverage exists. This section
states that “either party may make a written demand for arbitration” and that “[a]ny judgment
upon the award rendered by the arbitrators may be entered to [sic] your tribal or any federal court
of competent jurisdiction.” Doc. No. 36-1. Defendant asserts that its conflict with Plaintiff is
essentially a dispute over whether coverage is provided because all of its tribal court claims arise
from Plaintiff’s denial of coverage. Defendant maintains that these claims therefore fall squarely
within the scope of paragraph 15 of the SCD and are not subject to the arbitration clause of the
PA. Relying on C & L Enterprises, Defendant argues that Plaintiff waived its immunity from suit
on these claims in the Blackfeet Tribal Courts by consenting to the enforcement of an arbitration
award in tribal court.
Plaintiff responds that like paragraph 12, the arbitration clause of the SCD is inapplicable
to a suit that does not involve a third party claim. Plaintiff notes that the arbitration provisions in
the SCD are not the same as those in the PA, and it argues that this distinction is purposeful
because paragraph 15 of the SCD applies only to the narrow issue of coverage of liability on a
third-party claim. Should arbitration determine that the claim is covered, allowing an award to be
entered in the same court that resolved the underlying dispute over damages is intended to afford
a more streamlined remedy for the third party claimant. Plaintiff maintains that all direct disputes
between Plaintiff and a TOPP participant, including those over coverage, must be resolved
according to the arbitration provisions of the PA.
Unlike paragraph 12, the arbitration provision of the SCD does not contain any explicit
reference to a third party claimant. However, even if the Court were to assume that the SCD
arbitration clause could apply to a direct dispute over coverage, that category does not fully
encompass the claims brought by Defendant in the Blackfeet Tribal Courts. This situation is
distinguishable from C & L Enterprises because arbitration under paragraph 15 is not mandatory
and because Defendant is not merely seeking to enforce the contractual terms of the SCD by
entering an arbitral award of coverage in the tribal court. Defendant’s tribal suit seeks damages,
including punitive damages, for a variety of claims that may arise from the denial of coverage
but are not limited to the request that coverage be provided.
Defendant urges the Court to interpret the SCD arbitration clause expansively and in
isolation, and to disregard the conflicting PA provisions. But the terms of the SCD itself prevent
that approach. The SCD specifies the binding nature of the “document,” which Defendant
interprets to refer only to the SCD. However, “document” is a defined term that includes the
SCD, the PA, and other forms. Doc. No. 36-1. The two arbitration provisions must therefore be
read together and interpreted so as to harmonize their requirements and give effect to both when
possible. See Greystone Const., Inc. v. National Fire & Marine Ins. Co., 661 F.3d 1272, 1283–84
(10th Cir. 2011). Claims such as those in Defendant’s tribal court lawsuit are beyond the scope
of paragraph 15, so must be governed by the PA. C & L Enterprises analyzed contractual
provisions regarding jurisdiction, venue, and choice of law that all suggested suit should be filed
in the state courts. These provisions, in concert, caused the Supreme Court to conclude that
immunity had been waived for such a state-court lawsuit. By contrast, the PA specifically limits
jurisdiction over disputes to three named courts, so that any waiver of sovereign immunity is also
necessarily limited to those courts.
Further, the designation of a forum for the resolution of certain disputes does not
constitute a clear waiver of sovereign immunity when it conflicts with specifically asserted
limitations on the consent to suit. See Ute Indian Tribe of the Uintah and Ouray Reservation v.
Utah, 790 F.3d 1000, 1009–10 (10th Cir. 2015) (distinguishing C & L Enterprises and holding
that a provision that “‘[o]riginal jurisdiction to hear and decide any disputes or litigation arising
pursuant to or as a result of this Agreement shall be in the United States District Court for the
District of Utah’” was not a waiver of sovereign immunity but was “best understood as a forum
selection clause.”). In addition to the limitations in the PA, Plaintiff’s charter explicitly asserts its
sovereign immunity and renders the tribal corporation amenable to suit only under the terms of a
waiver of immunity adopted as a resolution by the Board of Directors. See Charter, §§ 8.18,
16.2–16.4 (Doc. No. 12-2). Accordingly, the Court concludes that Defendant’s lawsuit is
governed by the arbitration provisions of the PA, not the SCD, and that the SCD does not clearly
waive Plaintiff’s sovereign immunity from suit on Defendant’s claims.
Neither has Plaintiff waived its sovereign immunity through the marketing materials
presented by Defendant. In one article Defendant relies on, Plaintiff’s COO stated that Plaintiff
enjoy[s] the sovereignty of our chartering tribes . . . [c]ommercial insurers will
agree to arbitration, but only in state courts. We, as a sovereign entity, agree to
arbitration but we insist on tribal courts.
Doc. No. 33-2. In a second article, Plaintiff’s general counsel stated that
the insurer should be adjudicating claims based on tribal laws and policies. When
tribal courts or arbitrators are utilized, it can cut down on what can be lengthy
litigation as seen by state courts. Both parties may also feel more comfortable
with the tribal adjudication process.
Doc. No. 33-3. Additionally, Defendant presents deposition testimony that Plaintiff markets
itself as being willing to go into tribal court. But these vague statements by corporate officials
cannot act to waive Plaintiff’s sovereign immunity. See Native American Distributing v. Seneca13
Cayuga Tobacco Co., 546 F.3d 1288, 1295 (10th Cir. 2008) (actions by officials or employees
cannot affect a tribe’s immunity from suit). Consequently, Plaintiff is immune from suit on
Defendant’s tribal court claims.
Defendant’s reliance on Montana, 450 U.S. 544, to support the exercise of jurisdiction
over Plaintiff by the Blackfeet Tribal Courts is unavailing because such jurisdiction must stem
from the tribe’s inherent sovereign authority. See Plains Commerce Bank v. Long Family Land
and Cattle Co., 554 U.S. 316, 335–37 (2008) (jurisdiction under Montana is justified by a tribe’s
sovereign interests). The Blackfeet Tribe has no inherent authority to subject another sovereign
entity to suit in its courts. See Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680, 685
n.5 (8th Cir. 2011) (“‘The power to subject other sovereigns to suit in tribal court [is] . . . not a
part of the tribes’ inherent sovereignty.’” (quoting Montana v. Gilham, 133 F.3d 1133, 1138 (9th
Cir. 1998)); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1502 (10th Cir. 1997) (“[T]ribal
jurisdiction is foreclosed by sovereign immunity.”); Sac & Fox Nation v. Hanson, 47 F.3d 1061,
1062, 1063–65 (10th Cir. 1995) (a tribe’s sovereign immunity cannot be waived by implication
in contract actions (citing American Indian Agric. Credit Consortium, Inc. v. Standing Rock
Sioux Tribe, 780 F.2d 1374, 1378–79 (8th Cir. 1985)). Accordingly, the Blackfeet Tribal Courts
lack jurisdiction over Defendant’s suit and the November 7, 2016 ultra vires order of the
Blackfeet Court of Appeals is invalid. See Plains Commerce Bank, 554 U.S. at 324 (judgment
issued in excess of tribal court jurisdiction is necessarily null and void).
Injunction Preventing Litigation in the Blackfeet Tribal Courts
Plaintiff asks the Court to enjoin Defendant from further litigating this matter in the
Blackfeet Tribal Courts or attempting to enforce the invalid tribal court order. “For a party to
obtain a permanent injunction, it must prove: (1) actual success on the merits; (2) irreparable
harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the
injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely
affect the public interest.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th
Cir. 2007) (internal quotation marks omitted).
Plaintiff has demonstrated success on the merits of its claim because, as discussed above,
the Blackfeet Tribal Courts lack jurisdiction over Defendant’s suit against Plaintiff. Continued
litigation in the Blackfeet Tribal Courts or enforcement of the invalid order would be in excess of
their jurisdiction and in violation of Plaintiff’s sovereign immunity. “The Tenth Circuit has
‘repeatedly stated that ... an invasion of tribal sovereignty can constitute irreparable injury.’” Ute
Indian Tribe v. Utah, 790 F.3d at 1005 (quoting Wyandotte Nation v. Sebelius, 443 F.3d 1247,
1255 (10th Cir. 2006)). A tribal entity that enjoys sovereign immunity “should not be compelled
to expend time and effort on litigation in a court that does not have jurisdiction over them. The
Tribe’s full enjoyment of its sovereign immunity is irrevocably lost once the Tribe is compelled
to endure the burdens of litigation.” Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163,
1165, 1171–72 (10th Cir. 1998) (internal citations and quotation marks omitted).
The threatened injury to Plaintiff outweighs any harm that an injunction may cause
Defendant because it will merely result in enforcement of the contractual dispute resolution
provisions to which Defendant agreed in the PA. Additionally, Defendant’s “claims to injury
should an injunction issue shrink to all but the vanishing point” when they are being enjoined
only from litigating in a court without jurisdiction—“something they have no legal entitlement to
do in the first place.” Ute Indian Tribe v. Utah, 790 F.3d at 1007. Finally, the public interest will
not be adversely affected by the restraint of proceedings that would infringe upon Plaintiff’s
sovereign immunity. See Sac & Fox Nation, 47 F.3d at 1064 (sovereign immunity is the power
of self-determination); Prairie Band Potawatomi Nation v. Pierce, 253 F.3d 1234, 1253 (10th
Cir. 2001) (tribal self-government is in the public interest); Seneca–Cayuga Tribe v. Okla. ex rel.
Thompson, 874 F.2d 709, 716 (10th Cir. 1989) (same). Accordingly, the Court will grant the
IT IS ORDERED that:
(1) Plaintiff’s MOTION FOR SUMMARY JUDGMENT (Doc. No. 28) is GRANTED. A
separate order of declaratory judgment and permanent injunction will be entered.
(2) Defendant’s CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. No. 34) is
SENIOR UNITED STATES DISTRICT JUDGE
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