Colombe v. Rosebud Sioux Tribe et al
Filing
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OPINION AND ORDER REGARDING MOTION TO DISMISS. Signed by U.S. District Judge Roberto A. Lange on 08/16/2011. (LH)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CHARLES COLOMBE, Individually and
as an Officer of BBC Entertainment, Inc.,
a dissolved Minnesota corporation,
Plaintiff,
vs.
ROSEBUD SIOUX TRIBE, ROSEBUD
SIOUX TRIBAL COURT, and JUDGE
SHERMAN MARSHALL, in his Official
and Individual Capacities,
Defendants.
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CIV I I-3002-RAL
OPINION AND ORDER
REGARDING MOTION TO
DISMISS
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I. INTRODUCTION
Plaintiff Charles Colombe, a shareholder, director, and officer of BBC Entertainment
Inc. ("BBC") filed a Complaint (Doc. 1) against Defendants Rosebud Sioux Tribe, Rosebud
Sioux Tribal Court, and Judge Sherman Marshall (collectively "Defendants"). Plaintiff seeks
de novo review of a tribal court decision regarding a casino management contract dispute and
an injunction prohibiting Defendants from continuing a tribal court action to pierce the corporate
veilofBBC. Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(I) for lack of subject-matter jurisdiction. (Doc. 5). Plaintiff filed a Memorandum in
Opposition (Doc. 8) to Defendants' motion, and Defendants submitted a reply brief. (Doc. 13).
II. FACTS
The Rosebud Sioux Tribe ("Tribe") is a federally recognized Indian tribe that owns and
operates a casino on tribal trust land within the exterior boundaries of the Rosebud Sioux
Reservation. BBC is a now dissolved Minnesota corporation that was owned in part by tribal
member Charles Colombe. In June of 1994, the Tribe and BBC entered into a five-year casino
management contrad ("Contract") pursuant to the Indian Gaming Regulatory Act of 1988, 25
U.S.C. §§ 2701 et seq. ("IGRA"). Article 6.4(c)(5) of the Contract required that BBC fund an
initial Operation Expense Reserve ("OER") account. (Doc. 9-1 at 37-38; Doc. 9-7 at 20).
Although BBC never made an initial contribution to the OER account, the Tribe and BBC
reached a subsequent oral agreement to contribute 7.5% ofthe casino's net profits to the account
each month. (Doc. 9-4 at 4; Doc. 9-7 at 24-25). At conclusion of the contract, BBC withdrew
$415,857 from the OER account based on BBC's belief that it was entitled to 35% of the OER
account balance, consistent with the Contract's division of net profits with 65% going to the
Tribe and 35% to BBC. (Doc. 9-4 at 4).
The Tribe disputed BBC's withdrawal of the $415,857 and brought suit against BBC in
tribal court. Before Special Tribal Court Judge BJ. Jones, the Tribe argued that the oral
modification concerning how to fund the OER account did not comport with IGRA and its
implementing regulations. (Id. at 4-5). IGRA established a statutory basis for the regulation and
operation of gaming by Indian tribes and created the National Indian Gaming Commission
("NIGC") to oversee Indian gaming. 25 U.S.C. § 2702. Subject to the approval of the Chairman
of the NIGC, Indian tribes may enter into management contracts for the operation and
management of a tribe's gaming facilities. 25 U.S.C. § 2711. Once the NIGC Chairman has
approved a casino management contract, any attempt by the parties to modify the contract is void
without further Chairman approval. 25 C.F.R. 535.1. While the NIGC Chairman approved the
Contract in June of 1994, he did not approve the later oral modification concerning funding the
I A "management contract" is "any contract, subcontract, or collateral agreement between an Indian
tribe and a contractor or between a contractor and a subcontractor if such contract or agreement
provides for the management of all or part of a gaming operation." 25 C.F.R. § 502.15.
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OER account. (Doc. 9-1 at 6). The Tribe thus contended that the modification was void and that
because BBC did not make an initial contribution to the OER account, BBC was not entitled to
any of the money in the account. Judge Jones disagreed with the Tribe, instead finding that
"nothing in the agreement prohibited the parties from using their respective net earnings to fund
an account such as the OER account ... " (Doc. 9-2 at II).
The Tribe appealed Judge Jones's decision to the Supreme Court of the Rosebud Sioux
Tribe. (Doc. 9-4). In its appellate brief, BBC argued that IGRA does not create a private right
of action, and that jurisdiction to determine the legality of the Contract modification rested with
the NIGC rather than the tribal court. (Doc. 9-3). The Rosebud Supreme Court found that the
oral agreement to fund the OER account through mutual monthly contributions was void for
failure to obtain the approval of the NIGC and remanded the case to Judge Jones for an
accounting. (Doc. 9-4). The Court did not directly address BBC'sjurisdictional argument. Id.
The Tribe subsequently sought a rehearing en bane, contending that the Rosebud
Supreme Court's order remanding the case to Judge Jones contained certain mistakes oflaw and
fact. (Doc. 9-6). The Rosebud Supreme Court granted the motion for a rehearing en bane, but
limited the rehearing "to the sole issue of the appropriate remedy for BBC Entertainment Inco's
...breach of the management contract in regard to the funding of the [OER] account." Id. at 2.
In its Optional Briefon Rehearing, BBC expressed dismay that the Rosebud Supreme Court had
failed to discuss BBC's jurisdictional argument in its initial remand order, and again argued that
the Court did not have jurisdiction to determine whether there had been an illegal modification
of the Contract. (Doc. 9-5). Following the rehearing en bane, the Rosebud Supreme Court
issued a Summary Order that affirmed the Court's earlier remand to Judge Jones without
discussing BBC's jurisdictional argument. (Doc. 9-6).
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On October 16, 2007, Judge Jones granted the Tribe a judgment against BBC in the
amount of $399,353.61, plus interest accrued from August 15, 1999, in the amount of
$ 127,793. I5. (Doc. 9-7). BBC filed a motion for a new trial (Doc. 9-9), which was denied for
failure to adhere to the Rosebud Rules of Civil Procedure. (Doc. 9- I0). BBC did not appeal the
judgment.
On February 17,2009, the Tribe filed a tribal court complaint against BBC and two of
its owners, Wayne Boyd and Charles Colombe. (Doc. 5-1). The complaint sought to pierce
BBC's corporate veil and to hold Boyd and Colombe personally liable for the earlier judgment
against BBC. (Doc. 5- I). On March 24, 2009, Colombe responded with a motion to dismiss
arguing, among other things, that the underlying judgment against BBC was void because the
tribal court violated lORA and illegally amended an NIOC approved management contract.
(Doc. 5-6). Tribal Judge Sherman Marshall denied Colombe's motion to dismiss (Doc. 5-25) and
later ordered Colombe to respond to written discovery by January 22, 201 J. (Doc. 5-46).
Colombe then filed the present complaint in federal district court.
Colombe now asks this Court to vacate the October 16, 2007 judgment against BBC on
the grounds that the tribal court had no jurisdiction to find that there had been an illegal
modification ofthe Contract and that the lORA created no private right of action for the Tribe
to bring against BBC. Colombe also seeks a judgment on the merits finding that BBC did not
violate the Contract. Finally, Colombe seeks an injunction against Defendants from continuing
any litigation against Colombe that relates to the October 16, 2007 judgment. Defendants have
filed a Motion to Dismiss, arguing that this Court does not have subject matter jurisdiction over
the case, that Defendants have not waived their sovereign immunity, and that Colombe has failed
to exhaust his tribal court remedies.
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III. DISCUSSION
A. Colombe's Right to Pursue Claims in the Name ofBBC
As a preliminary matter, this Court must determine whether Colombe has standing to
assert claims in the name of BBC, a dissolved Minnesota corporation. Minnesota Statute §
302A.783 provides that "[a]fter a corporation has been dissolved, any of its former officers,
directors, or shareholders may assert or defend, in the name of the corporation, any claim by or
against the corporation." Minn. Stat. § 302A.783; see also Firstcom, Inc. v. Owest Corp., No.
Civ. 04-995 ADM/AJB, 2004 WL 1402564, at *2 (D. Minn. June 21, 2004) ("The text of
[section 302A.783] is clear and unambiguous: former shareholders may assert any claim in the
name of the corporation. "). Because BBC was dissolved and Colombe was a shareholder,
director, and officer of BBC, he has standing to maintain the present action.
B. Subject Matter Jurisdiction
"Federal courts are courts of limited jurisdiction." Myers v. Richland Cnty., 429 FJd
740,745 (8th Cir. 2005) (citation omitted). Here, no diversity of citizenship exists under 28
U.S.C. § 1332 because Indian tribes are neither foreign states nor citizens of any state. See
Gaming World Int'l v. White Earth Band of Chippewa Indians, 317 F.3d 840, 847 (8th Cir. 2003).
Federal subject matter jurisdiction under 28 U.S.C. § 1331 requires the presence of a federal
question. 28 U.S.C. § 1331; Oglala Sioux Tribe v. C & W Enter., Inc., 487 FJd 1129, 1130 (8th
Cir. 2007) (citing Arbaugh v. Y & H Com., 546 U.S. 500, 513 (2006)). Section 1331 provides
that "[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Courts generally
consider a claim to have arisen under federal law "ifa federal cause of action appears on the face
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[of] a well-pleaded complaint." Oglala Sioux Tribe, 487 F.3d at 1131 (citing Oklahoma Tax
Comm'n v. Graham, 489 U.S. 838, 840-841 (1989)).
Colombe, relying principally on Nat'l Farmers Union Ins. Co. v. Crow Tribe oflndians,
471 U.S. 845 (1985), contends that the Court has jurisdiction under § 1331 because he is
asserting that federal law has divested the Tribe ofjurisdiction to determine whether the Contract
was illegally modified. In Nat'l Farmers Union, a member of an Indian tribe obtained a default
judgment against a non-Indian school district in tribal court. Id. at 847-48. The school district
and its insurer then filed an action in federal district court seeking to enjoin the tribal member
from executing on the default judgment.
.!!L. at 848. The school district and its insurer contended
that "the right which they assert-a right to be protected against an unlawful exercise of Tribal
Court judicial power-has its source in federal law because federal law defines the outer
boundaries of an Indian tribe's power over non-Indians." Id. at 851.
The United States Supreme Court in Nat'l Farmers Union found that the district court was
correct in concluding that a federal court "may determine under § 1331 whether a tribal court has
exceeded the lawful limits of its jurisdiction." Id. at 853. The Court explained:
Because petitioners contend that federal law has divested the
Tribe of this aspect of [civil jurisdiction], it is federal law on
which they rely as a basis for the asserted right of freedom from
Tribal Court interference. They have, therefore, filed an action
'arising under' federal law within the meaning of § 1331.
.!!L. at 852-53.
The United States Court of Appeals for the Eighth Circuit has applied the principles of
Nat'l Farmers Union in a number of cases, two of which are particularly pertinent to the present
action. See Gaming World Int'l, 317 F.3d 840; Bruce H. Lien Co. v. Three Affiliated Tribes, 93
F.3d 1412 (8th Cir. 1996). The Bruce H. Lien case involved a casino management contract
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between a company and an Indian tribe. Bruce H. Lien, 93 FJd at 1414. After a disagreement
over the management contract arose, the company filed a demand for arbitration. Id. at 1415.
The Tribe responded by filing an action in tribal court seeking a declaration that the management
contract was void under tribal law and seeking an injunction to enjoin the arbitration proceedings
until the tribal court had an opportunity to rule on the Tribe's complaint. Id. at 1415- I 6.
Following a failed attempt to have the tribal court action dismissed for lack ofjurisdiction, the
company filed suit in federal district court requesting a preliminary injunction to enforce the
arbitration proceedings. Id. at 14 I 6. The Tribe moved to dismiss the federal action for lack of
subject matter jurisdiction, claiming that the Tribe had not waived its sovereign immunity and
that the company had failed to exhaust tribal remedies. Id.
On appeal, the Eighth Circuit found that the district court had properly exercised federal
question jurisdiction over the matter. Id. at 142 I. The Court stated:
While the issue of the contract's validity does not raise a federal
question per se, certainly there are aspects of the dispute which
do. Particularly where the entire association between the parties
(and their various disputes) arise under IGRA, and where the
management agreement at issue, once approved, remains so until
disapproved by the NIGC. Further, this case is being directed to
the Tribal Court and exhaustion within that system. The
existence of tribal jurisdiction itself presents a federal question
within the scope of28 U.S.C. § 1331.
Id. (citing Iowa Mut. Ins. Co.v. LaPlante, 480 U.S. 9,15 (1987); Nat'l Farmers Union, 471 U.S.
at 852-53).
The Eighth Circuit encountered similar issues in Gaming World. In Gaming World, a
Delaware corporation entered into a casino management contract with an Indian tribe. Gaming
World, 317 F.3d at 842. Sometime thereafter, the Tribe terminated the contract and filed an
action in tribal court seeking a declaration that the contract was void for failure to obtain proper
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federal approval. Id. at 845-846. The corporation filed a response challenging the tribal court's
jurisdiction and denying the tribe's allegations. Id. at 846. One month later, the corporation
commenced litigation in federal district court seeking a declaratory judgment of the contract's
validity and an order compelling arbitration. Id. The Tribe appeared in federal district court,
disputed the validity of the contract, and asserted that the district court lacked subject matter
jurisdiction. Id. After the district court found that it had jurisdiction under § 1331 and ordered
the parties to arbitrate, the Tribe appealed. Id.
The Eighth Circuit in Gaming World determined that the corporation's action arose under
federal law because it raised issues concerning the scope of tribal jurisdiction. Id. at 848. The
Court compared the jurisdictional facts in Gaming World to those in Bruce H. Lien, and noted
that both cases involved federal court challenges to a tribal court'sjurisdiction. Id. "[A]n action
filed in order to avoid tribal jurisdiction," the Court explained, "necessarily asserts federal law."
Id. (citing Nat'l Farmers Union, 471 U.S. at 853).2
2The Court in Gaming World also identified a second basis for federal question jurisdiction. The
Court explained that, in terms of federal question jurisdiction, "there is a significant distinction
between ordinary contract disputes involving Indian tribes, and those raising issues in an area of
extensive federal regulation." Id. at 847 (citations omitted). By way of illustration, the Court
observed that in Comstock Oil & Gas, Inc. v. Ala. & Coushatta Indian Tribes, 261 F.3d 567 (5th Cir.
200 I), the Fifth Circuit found that the "'extensive regulatory scheme' governing tribal oil and gas
leases conferred federal jurisdiction over a contract dispute between a tribe and two oil companies."
Gaming World, 317 F.3d at 848 (citing Comstock, 261 F.3d at 574-75). The Court determined that
"the regulatory scope ofiGRA is similarly far reaching in its supervisory power over Indian gaming
contracts." Id. Because the complaint in Gaming World raised issues under the "extensive
regulatory framework of IGRA," it was more than a routine contract action and was sufficient to
invoke federal question jurisdiction. Id.; see also Tamiami Partners v. Miccosukee Tribe ofindians,
63 F.3d 1030, 1047 (11th Cir. I995)(concluding that IGRA and NIGC regulations are incorporated
into casino management contracts by law); William C. Canby, American Indian Law in a Nutshell
371 (5th ed. 2009) ("Claims based on management contracts have generally been held to arise under
federal law for purposes of federal jurisdiction. ").
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Nat'l Farmers Union and its Eighth Circuit progeny make clear that the interpretation of
federal law plays a critical role in the resolution of cases that involve the question of whether a
tribal court has overstepped the boundaries of its jurisdiction. Here, the gravamen of Colombe's
complaint is that certain provisions of IGRA and NIGC regulations have divested the Tribe of
jurisdiction to determine whether there was an illegal modification ofthe management contract.
Colombe thus has filed an action Harising under Hfederal law within the meaning of § 1331. See
Nat'l Farmers Union, 471 U.S. at 853; Gaming World, 3 I 7 F.3d at 848 (HIt is well established
that the scope of tribal court jurisdiction is a matter of federal law. H); TTEA v. Ysleta Del Sur
Pueblo, 181 F.3d 676, 683 (5th Cir. 1999) (court had jurisdiction to determine whether tribal
court properly exercised jurisdiction over 25 U.S.C. § 81 claim); Kerr-McGee Com. v. Farley,
I 15 F.3d 1498, 150 I (IOth Cir. 1997) (HThe scope of a tribal court's jurisdiction is a federal
question over which federal district courts have jurisdiction. H); Bruce H. Lien, 93 FJd at 142122; Oglala Sioux Tribe v. C & W Enters., 516 F.Supp.2d 1039, 1042 (D.S.D. 2007) (HBoth
National Farmers Union and Bruce Lien recognize that because tribal sovereignty is limited only
by federal law, any challenges to the tribal court's jurisdiction necessarily arises under federal
law. H); Canby, supra at 244 (5th ed. 2009) (explaining that as a consequence ofNational Farmers
Union, Hanyone asserting an absence oftribal power under federal statute, treaty, or the 'common
law' offederal Indian law has an entree into federal court. H).
C. Sovereign Immunity
A motion to dismiss on sovereign immunity grounds may be analyzed under Rule
12(b)(I). Hagen v. Sisseton-Wahpeton Cmty. ColI., 205 F.3d 1040, 1043 (8th Cir. 2000).
However, the question of whether the Tribe's sovereign immunity bars Colombe from bringing
this suit is ajurisdictional issue separate from subject matter jurisdiction. See In re Prairie Island
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Dakota Sioux, 21 F.3d 302, 305 (8th Cir. 1994) ("We find, therefore, that sovereign immunity
is a jurisdictional consideration separate from subject matter jurisdiction ..."); Calvello v.
Yankton Sioux Tribe, 899 F. Supp. 431,435 (D.S.D. 1995) (determining first that the court had
subject matter jurisdiction and then noting that "[t]he Court must next consider, however, the
separate jurisdictional issue of whether [the plaintiffs] suit against the Tribe is barred by the
doctrine of sovereign immunity.").
"Indian tribes have long been recognized as possessing the common-law immunity from
suit traditionally enjoyed by sovereign powers." Amerind Risk Mgmt. Corp. v. Malaterre, 633
FJd 680, 685 (8th Cir. Feb. 25, 2011) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978». "Thus, as a matter of federal law, an Indian tribe is subject to suit only where Congress
has authorized the suit or the tribe has waived its immunity." Id. (quoting Kiowa Tribe of Okla.
V. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998». "A waiver of sovereign immunity may not be
implied, but must be unequivocally expressed by either the Tribe or Congress." Id. (quoting
Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995».
While a tribe may waive its sovereign immunity by contract, it must do so with the
"requisite clarity." See C & LEnters., Inc. v. Citizen Band ofPotawatomi Indian Tribe, 532 U.S.
411,418 (2001) ("[T]o relinquish its immunity, a tribe's waiver must be clear.") (citations
omitted). This does not mean, however, that the contract must contain "'magic words' stating
that the tribe hereby waives its sovereign immunity." Rosebud Sioux Tribe v. Val-U Constr. Co.
ofSD., 50 FJd 560, 563 (8th Cir. I995);Sokaogon Gaming Enter. v. Tushie-Montgomery Ass'n,
86 F.3d 656, 660 (7th Cir. 1996) (explaining that a tribe may waive its sovereign immunity in
a contract without actually using the words "sovereign immunity."); Canby, supra at 110
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("Although the intention to waive must be clear, the waiver need not include the precise term
"sovereign immunity.").
In C& L Enterprises, the Supreme Court found that a tribe waived its sovereign immunity
by entering into a standard form construction contract that contained a provision requiring
arbitration of all claims "arising out of or relating to the Contract" and provided that any
arbitration awards could be reduced to judgment in "accordance with applicable law in any court
havingjurisdiction thereof." C& L Enterprises, 532 U.S. at 418-419. The Eighth Circuit reached
a similar result in Val-U Construction. See Val-U Constr., 50 F.3d at 562 (finding that the
following language in a contract was a clear expression of waiver of a tribe's sovereign
immunity: "All questions of dispute under this Agreement shall be decided by arbitration in
accordance with the Construction Industry Arbitration Rules of the American Arbitration
Association.").
Article 21 of the Contract at issue provides in pertinent part:
Should litigation be necessary to enforce the obligations of this
agreement, the parties agree that such litigation shall not be
brought in the courts of any state. Instead, access to the courts,
shall be as follows:
(a) Any litigation relating to a dispute over the terms, rights or
obligations set forth in this agreement shall first be initiated in
Rosebud Sioux Tribal Court.
(b) The parties agree that in the event of a dispute requiring court
intervention, either party may apply to the Tribal Court for
appointment of a special judge to preside over any such disputes.
The Tribal Court shall immediately appoint such special judge to
preside over disputes involving this contract or the management
of the project. The special judge must be approved by both
parties to this agreement prior to presiding over the case or
controversy. The special judge must be law trained, and the
parties hereto will share equally in any compensation to be paid
to the special judge incurred in the course of his duties on the
case.
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(c) Should either party request the appointment of a special judge
to hear a dispute or settle a controversy, said judge must be agreed
upon by both parties and selected and appointed within seven
days of the application by either party. The parties may waive or
extend the time limit included herein by mutual agreement.
(d) With the use of the special judge as provided herein, the
Rosebud Sioux Tribal Court shall have initial jurisdiction over all
disputes arising with respect to this contract, subject only to those
exceptions as set forth in subparts (f) and (g) hereto.
(e) Regular appeals from the decisions ofthe special judge for the
Rosebud Sioux Tribal Court shall be taken as provided in the
Rosebud Sioux Tribal Rules of Appellate Procedure.
(f) The jurisdiction of the Rosebud Sioux Tribal Court system
with respect to disputes related to this contract, shall extend
through the Tribal Trial Court and Appellate Court level. Tribal
Court remedies must be exhausted before any party may initiate
suit in Federal Court (except as set forth herein and in Section (g)
below). Once Tribal Court remedies have been exhausted, the
jurisdiction of the Tribal Court shall cease, permitting any party
to bring suit before the United States Federal District Court, and
Tribal Court jurisdiction will terminate for purposes of allowing
the Federal Court to entertain a de novo review of the case on its
merits. The parties hereto expressly intend that the Federal Court
shall not be limited to a review of Tribal Court jurisdiction, but
shall hear the case on its underlying merits on a de novo basis.
The Federal Court may enter such relief on the merits of the
controversy as it deems just and equitable, or as properly
requested by either party. Upon adoption and execution of this
contract, the provisions of this section shall be considered as an
amendment to the tribal judicial code, applying solely to disputes
arising under this contract and establishing the jurisdiction of the
Rosebud Sioux Tribal Court as set forth herein with respect to
disputes under this contract.
(Doc. 9-1 at 63-65). The plain language ofthe Contract contains a waiver ofsovereign immunity
upon exhaustion of tribal court remedies. Section (f) of Article 21 makes clear that either party
to the Contract may bring suit in federal district court to obtain a de novo review of the dispute
on its merits, following exhaustion of tribal court remedies. By agreeing to be subject to suit in
federal district court, a tribe agrees to waive its sovereign immunity. See Sokaogon Gaming
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Enter., 86 FJd at 659 ("To agree to be sued is to waive any immunity one might have from being
sued."); Val-U Constr., 50 F.3d at 562 (explaining that by agreeing to the arbitration clause and
its provisions for dispute resolution, the tribe clearly intended to waive its sovereign immunity,
as "[b]y definition such disputes could not be resolved by arbitration if one party intended to
assert sovereign immunity as a defense. ") (citation omitted).
Defendants argue, however, that the waiver of sovereign immunity contained in Article
21 of the Contract is void for failure to comply with section 4-2-1 of the Rosebud Sioux Tribe's
Law and Order Code. Section 4-2-1 states:
SOVERElGN IMMUNITY-Except as required by federal law or
the Constitution and bylaws ofthe Tribe or specifically waived by
a resolution or ordinance of the Tribal Council making specific
reference to such, the Rosebud Sioux Tribe and its officers and
employees shall be immune from suit in any civil action for any
liability arising from the performance of their official duties.
(Doc. 13-1). This unequivocal language makes clear that a waiver of sovereign immunity must
comport with the requirements of section 4-2-1 to be valid.
For a waiver of sovereign immunity to be effective it must comply with tribal law. See
Memphis Biofuels, LLC v. Chickasaw Nation Indus., 585 F.3d 917, 922 (6th Cir. 2009) (tribal
corporation's contract containing express waiver of sovereign immunity was ineffective without
approval of the board by resolution, as required by tribal law); Sanderlin v. Seminole Tribe of
Fla., 243 FJd 1282, 1288 (11 th Cir. 2001) (rejecting argument that tribal official had authority
to waive immunity because" [s]uch a finding would be directly contrary to the explicit provisions
of the Tribal Constitution"); Winnebago Tribe ofNeb. v. Kline, 297 F. Supp. 2d 1291, 1303 (D.
Kan. 2004) ("[F]or a waiver of sovereign immunity to be effective, the waiver must be in
compliance with tribal law."); World Touch Gaming v. Massena Mgmt. Corp., 117 F. Supp. 2d
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271,275 (N.D.N.Y. 2000) (holding that a contractual waiver ofsovereign immunity was invalid
where tribal constitution and civil judicial code established that the only way the tribe could
waive its sovereign immunity was through a tribal council resolution). Colombe does not point
to any Tribal Council resolution or ordinance that waives the Tribe's sovereign immunity with
respect to the Contract. Nor does Colombe direct the Court to any portion of the Tribal
Constitution that would support Colombe's argument that Defendants have waived their
sovereign immunity. However, Article 24.15 ofthe management contract seems to indicate that
the Tribe did, in fact, execute a resolution that may have waived its sovereign immunity. Article
24.15 reads:
24.15 Tribal Resolution. The Resolution attached hereto as
Exhibit "H" sets forth the scope ofauthority ofthe Tribal officials
who have signed this Agreement on behalf of the Tribe and
identifies the provision of the Tribal organic document which
authorizes this Agreement and its execution.
(Doc. 9-1 at 74). Unfortunately, "Exhibit 'H'" has not been included in any of the filings in this
Court.
Some authority, including two cases decided by this Court, indicate that tribal sovereign
immunity is waived in the narrow category of cases where compliance with IGRA's provisions
is at issue and where only declaratory or injunctive relief is sought. See Montgomery v.
Flandreau Santee Sioux Tribe, 905 F. Supp. 740, 745 (D.S.D. 1995) ("The Court has subject
matter jurisdiction to consider whether defendants have complied with the Indian Gaming
Regulatory Act."); Maxam v. Lower Sioux Indian Cmty. of Minn., 829 F. Supp. 277,281 (D.
Minn 1993) ("[W]hen an Indian tribe engages in gaming governed by the IGRA, it waives its
immunity to suit for the narrow purpose of determining compliance with the requirements of the
Act."); Ross v. Flandreau Santee Sioux Tribe, 809 F. Supp. 738, 745 (D.S.D. 1992) ("Sovereign
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immunity cannot be invoked to preclude an inquiry into whether the Tribe has complied with the
IGRA. Engaging in gaming pursuant to the IGRA constitutes an express waiver of sovereign
immunity on the issue of compliance with the IGRA."); see also Calvello, 899 F. Supp. at 438
(citing Maxam and Ross and explaining that these cases "stand at most for the proposition that
federal courts may find a waiver of tribal sovereign immunity for the purpose of enforcing the
provisions of the IGRA were prospective injunctive relief, and not monetary relief, is sought.");
Canby, supra at 114 (5th ed. 2009) ("Most of the lower courts to consider the question have held
that a tribe, by conducting gaming under the IGRA, waives sovereign immunity for the limited
purpose of enforcing compliance with the act.").
These decisions are not universally accepted, however. See Florida v. Seminole Tribe
of Florida, 181 F.3d 1237, 1242-1243 (11th Cir. 1999) (finding that Ross and Maxam were
wrongly decided because they are inconsistent with Supreme Court decisions holding that
waivers of tribal sovereign immunity "cannot be implied on the basis of a tribe's actions, but
must be unequivocally expressed. "); Crosby Lodge, Inc. v. Nat'l Indian Gaming Ass'n, No.3 :06CY-00657, 2007 WL 2318581, at *4 (D. Nev. Aug. 10,2007) (rejecting the reasoning in Ross
and Maxam); Davids v. Coyhis, 869 F.Supp. 1401, 1407-08 (E.D. Wis. 1994) (rejecting Ross
and Maxam because a waiver of sovereign immunity "cannot be implied but must be
unequivocally expressed."); Cohen's Handbook of Federal Indian Law, § 12.07[3] n.2 12 (2005
ed.) (explaining that Ross, Maxam, and Montgomery, "seem inconsistent with the rules requiring
waivers of sovereign immunity to be clearly expressed. ").
This Court does not have Exhibit "H" to the Contract, which is pivotal to determining
whether there is a waiver of sovereign immunity. It is Colombe who has the burden of proving
that "jurisdiction does in fact exist." Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).
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Thus, this Court will give Colombe fourteen days (14) from the date of this opinion to file Exhibit
"H," after which the Court will decide any remaining issues framed by Defendants' Motion to
Dismiss. Therefore, it is hereby
ORDERED that Plaintiffhas fourteen (14) calender days from the date of this order to file
Exhibit "H" to the Contract.
Dated August 16,20 II.
BY THE COURT:
Cl20a.~,-----ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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