Colombe v. Rosebud Sioux Tribe et al

Filing 66

Opinion and ORDER denying 48 Motion for Summary Judgment; granting 58 Motion for Summary Judgment. Signed by U. S. District Judge Roberto A. Lange on 1/18/13. (SLW)

FILED

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.

I.

*
*

*

*
*
*
*
*
*
*
*
*
*
*

JAN 18 2013

~~;

CIV 11-3002-RAL

OPINION AND ORDER
DENYING PLAINTIFF'S
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT

INTRODUCTION
Plaintiff Charles Colombe, a shareholder, director, and officer ofBBC Entertainment,

Inc. ("BBC") filed a Complaint against Defendants Rosebud Sioux Tribe ("the Tribe"), Rosebud
Sioux Tribal Court, and Judge Sherman Marshall (collectively "Defendants"). Doc. 1. Both
parties have filed motions for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure. Doc. 48; Doc. 58. Colombe's motion for summary judgment seeks a ruling that the
Supreme Court of the Rosebud Sioux Tribe lacked jurisdiction to detennine that the oral
modification of a casino management contract was invalid. Doc. 48. Colombe contends that
summary judgment is proper because the Tribe sued in Rosebud Sioux Tribal Court based on
the Indian Gaming Regulatory Act ("IGRA") and IGRA does not create a private cause of
action. Doc. 48. Colombe requests this Court vacate the Tribal Court judgment for lack of
jurisdiction and prevent action to satisfY the Tribal Court judgment. Doc. 48. Defendants
oppose Colombe's motion for summary judgment, Doc. 57, and have filed their own motion for

1

summary judgment on Colombe's Complaint. Doc. 58. Defendants argue that the Tribal Court
had jurisdiction to determine whether an oral modification to a management contract required
approval by the National Indian Gaming Commission ("NIGC") and to declare an unapproved
modification contract void. Doc. 58.
On August 17, 2011, this Court issued an Opinion and Order Regarding Motion to
Dismiss resolving part ofthe issues and requiring submission ofa tribal resolution missing from
the record that affected this Court's analysis of waiver of tribal sovereign immunity. Doc. 21.
On September 23,2011, this Court issued an Opinion and Order Granting in Part and Denying
in Part Defendants' Motion to Dismiss for lack ofsubject matter jurisdiction under Federal Rule
ofCivil Procedure 12(b)(1). Doc. 33. 1 This Court now denies Colombe's Motion for Summary
Judgment and grants Defendants' Motion for Summary Judgment.

II.

FACTS
The Rosebud Sioux Tribe ("the 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. Doc. 1 at 3; Doc. 11 at 2. BBC is a now-dissolved Minnesota corporation that was
owned in part by tribal member Charles Colombe. Doc. 1 at 2. In June of 1994, the Tribe and
BBC entered into a five-year casino management contract2 ("the Contract") pursuant to the

I For the sake ofcompleteness and to aid understanding ofthe Court's ruling, this Opinion and Order
repeats in part the contents of the August 17, 2011 Opinion and Order and of the September 23,
2011 Opinion and Order.

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. A
management contract cannot be approved unless it "provides certain minimal protections for the
tribe" that are set out either in the IGRA or in the accompanying implementing regulations. Tum
Key Gaming. Inc. v. Oglala Sioux Tribe, 164 F.3d 1092, 1094 (8th Cir. 1999). For example,
management contracts must comply with IGRA provisions setting forth the maximum term for

2

2

Indian Gaming Regulatory Act of 1988,25 U.S.C. §§ 2701, et seq. 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% of the
casino's net profits to the account each month. Doc. 9-4 at 4; Doc. 9-7 at 24-25. At conclusion
ofthe Contract, BBC withdrew $415,857.00 from the OERaccount based on BBC's belief that
it was entitled to 35% ofthe OER account balance, consistent with the Contract's division ofnet
profits with 65% going to the Tribe and 35% to BBC. Doc. 9-4 at 4.
The Tribe disputed BBC's withdrawal ofthe $415,857.00 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. Doc. 9-4 at 4-5. IGRA established a statutory basis for the regulation
and operation of gaming by Indian tribes and created the 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. The NIGC Chairman approved the Contract in June of1994, but no one sought
approval ofthe later oral modification concerning funding the 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
management agreements, division of profits, and certain limitations on repayment of construction
costs incurred by contractor. Gaming World InC 1. Ltd. v. White Earth Band of Chippewa Indians,
317 FJd 840,842 (8th Cir. 2003).

3

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 11.
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 lORA does not create a private right
of action and suggested that jurisdiction to determine the legality of the Contract modification
rested with the NIOC rather than the Tribal Court. 3 Doc. 9-3. The Rosebud Sioux Tribal
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 NIOC and remanded the case to
Judge Jones for an accounting.

Doc. 9-4.

The Court did not directly address BBC's

jurisdictional argument. Doc. 9-4.
The Tribe subsequently sought a rehearing en banc, contending that the Rosebud Sioux
Tribal Supreme Court's order remanding the case to Judge Jones contained certain mistakes of
law and fact. Doc. 9-6. The Rosebud Sioux Tribal Supreme Court granted the motion for a
rehearing en banc, but limited the rehearing "to the sole issue ofthe appropriate remedy for BBC
3

The jurisdictional argument in BBC's first appellate brief was as follows:
If the Tribe had a claim that BBC violated lORA because of a
subsequent agreement which consisted of an agreement that both
parties would delay full payment of their share of net revenues, the
Tribe had a potential remedy, if they had been truly aggrieved. That
remedy was to complain to the NIOC and to seek relief from that
agency. That was not done, and the reason it was not done might
appear obvious to even the casual observer. 25 USC § 2713(3)
provides the procedure applicable to violations which replaces the
jurisdiction of courts.

Doc. 9-3 at 15. BBC's brief then discussed § 2713 and stated that "[i]t is clear from § 2713 that it
is the agency that has authority to act on issues relating to the 'modification or termination of any
management contract.'" Doc. 9-3 at 16 (quoting § 2713(3)).
4

Entertainment, Inc.' s . . . breach of the management contract in regard to the funding of the
[OER] account." Doc. 9-6 at 2. In its brief on rehearing, BBC asserted that the Rosebud Sioux
Tribal Supreme Court had failed to discuss BBe's jurisdictional argument in its initial remand
order and argued that only the NIGC had jurisdiction to determine whether there had been an
illegal modification ofthe Contract. Doc. 9-5. Following the rehearing en banc, the Rosebud
Sioux Tribal 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.
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
$127,793.15. Doc. 9-7. BBC filed a motion for a new trial, Doc. 9-9, which was denied for
failure to adhere to the Rosebud Sioux Tribe Rules of Civil Procedure. Doc. 9-10. 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. 5-1. 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 IGRA and illegally amended an NIGC-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 22,2011. Doc. 5-46.
On January 12,2011, Colombe filed a two-count Complaint before this Court against the
Rosebud Sioux Tribe, Rosebud Sioux Tribal Court, and Judge Sherman Marshall. Doc. 1.
Count I of the Complaint sought a de novo review of whether BBC and Colombe violated the

5

Management Agreement. Doc. 1 at 13. Colombe asked this Court to vacate the October 16,
2007 judgment and damage award. Doc. 1 at 14. Count II sought an injunction prohibiting the
Rosebud Sioux Tribe from continuing litigation to recover on the October 16, 2007 judgment
in Tribal Court. Doc. 1 at 14.
In an Opinion and Order dated September 23,2012, this Court held that Colombe had
not exhausted his Tribal Court remedies as to issues relating to Judge Jones's October 16,2007
decision. Doc. 33 at 17. Colombe and BBC "never appealed the October 16,2007 decision
granting the Tribe a judgment against BBC." Doc. 33 at 17-18. This Court dismissed all of
Colombe's claims concerning the October 16,2007 decision. Doc. 33 at 18. This Court did find
exhaustion as to the "the limited issue of the [T]ribal [C]ourt's jurisdiction to find an illegal
modification of the contract." Doc. 33 at 16.
Colombe now asks this Court to rule on the sole remaining issue from this Court's
September 23, 2012 Opinion and Order: Whether the Tribal Court had jurisdiction to hold that
the oral modification to the NIGC-approved management contract was void. Colombe argues
that the NIGC has the sole, exclusive authority to determine whether modifications to NIGC­
approved management contracts can have any legal effect. Doc. 49 at 6-7. Colombe also argues
that Defendants' Tribal Court suit is prohibited because IGRA does not authorize a private cause
of action. Doc. 49 at 8. Defendants counter that the Rosebud Sioux Tribal Supreme Court had
jurisdiction to rule on the legal validity of the oral, unapproved modification to the approved
management contract after Colombe raised the modification as a defense in the Tribe's
underlying contract suit. Doc. 59; Doc. 60. Defendants also assert that its Tribal Court suit is
not for a "claimed IGRA violation" and therefore does not need to be authorized by the IGRA.
Doc. 57 at 19.

6

III.

DISCUSSION
A.

Tribal Court Jurisdiction Over the Unapproved Modification

The Indian Gaming Regulatory Act ("IGRA") provides the statutory basis for operating
and regulating Indian gaming. Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1092,
1094 (8th Cir. 1999). IGRA serves to promote "'tribal economic development, self-sufficiency,
and strong tribal governments'" and shield tribes from the influence of organized crime to
ensure that the tribes are the primary beneficiaries of tribal gaming. First Am. Kickapoo
Operations. L.L.C. v. Multimedia Games. Inc., 412 F.3d 1166, 1167 (10th Cir. 2005) (quoting
25 U.S.C. § 2702); see also Wells Fargo Bank. Nat. Ass'n v. Lake of the Torches Econ. Dev.
Corp., 658 F.3d 684, 700 (7th Cir. 2011) ("One ofIGRA's principal purposes is to ensure that
the tribes retain control of gaming facilities set up under the protection of IGRA and of the
revenue from these facilities."). "IGRA created the National Indian Gaming Commission
(NIGC), 25 U.S.C. § 2704, and assigned responsibility for reviewing all management contracts
to the Chairman ofNIGC." Gaming World Int'!, Ltd. v. White Earth Band of Chippewa Indians,
317 F.3d 840,842 (8th Cir. 2003); see also Turn Key Gaming, 164 F.3d at 1094 (citing 25
U.S.C. § 2711) ("[T]he Act permits tribes to enter into management contracts for the operation
and management ofgaming facilities, subject to the approval of such contracts by the Chairman
ofthe NIGC."). "[A]ny management contract that does not receive approval is void, and [] any
attempted modification of an approved [management] contract that does ... not receive
approval, is also void." Turn Key Gaming, 164 F.3d at 1094 (citing 25 C.F.R. § 533.7,
535.1 (t)); see also 25 C.F.R. § 533.7 ("Management contracts ... that have not been approved
by the Chairman in accordance with the requirements of part 531 of this chapter and this part,
are void."); 25 C.F.R. § 535.1 ("Amendments that have not been approved by the Chairman .

7

· . are void."); Mo. River Servs .. Inc. v. Omaha Tribe of Neb., 267 F.3d 848, 853-54 (8th Cir.
2001) (holding that an attempted modification to an approved management contract is not
enforceable); United States ex. reI. Bernard v. Casino Magic Corp., 293 F.3d 419, 424-25 (8th
Cir. 2002) (noting that management contracts that are not approved by the Chairman are
"unenforceable" and "invalid").

Void means "[o]f no legal effect; null."

Black's Law

Dictionary 1709 (9th ed. 2009).
The United States Court of Appeals for the Eighth Circuit has presumed there to be
jurisdiction, without first deferring to the NIGC, to determine whether a contract is of the type
that requires NIGC approval to have legal effect and to refuse to give unapproved management
contracts and unapproved modifications legal effect when necessary approval is lacking. See
Mo. River Servs., 267 F.3d at 853-54 (assuming jurisdiction and holding that an unapproved
management agreement and an unapproved modification are "void"); Turn Key Gaming, 164
F.3d at 1094-95 (assuming jurisdiction and holding that oral modification to a management
contract was precluded from consideration because it was unapproved); Casino Magic, 293 F.3d
at 425-26 (assuming jurisdiction to hold that certain agreements are management agreements
subject to NIGC's approval process and holding that "[t]he law is clear that management
agreements must be approved by the Chairman of the NIGC" and "[w]ithout that approval,
invalid management fees must be recovered on behalf of the Tribe"). Other federal courts
likewise have assumed jurisdiction to determine when a purported agreement is subject to the
NIGC's approval requirement and to void an agreement ifapproval is lacking. See Wells Fargo
Bank, 658 F.3d at 686 (assuming jurisdiction and holding that a bond indenture agreement had
sufficient restrictions on the tribe's ability to control casino revenues that the agreement
constituted a management contract and that the contract was void for failure to obtain NIGC

8

approval); Catskill Dev., L.L.C. v. Park Place Entm't Corp., 217 F.Supp. 2d423, 433 (S.D.N.Y.
2002) (assuming jurisdiction to hold an unapproved collateral agreement was "void and of no
effect"); BounceBackTechnologies.com. Inc. v. Harrah's Entm't, Inc., No. 98-2058,2003 WL
21432579, at *1, 4 (D. Minn. June 13, 2003) (assuming jurisdiction to determine that a
"Technical Assistance and Consulting Agreement" executed between two companies was not
a "management contract" and did not require NIGC approval to be enforceable).

In Turn Key Gaming, a casino developer entered into a management contract with a tribe
to develop and manage a casino on tribal land. 164 F .3d at 1093. The contract was submitted
to the NIGC for approval. Id. at 1093. The contract "provided that it could not be changed
orally, but only by an instrument in writing signed by both parties and submitted by the Tribe
for written approval to the NIGC." Id. at 1094. The developer asserted that after construction
had begun but before the NIGC had approved the contract, the parties agreed orally to modify
the contract upon NIGC approval. Id. After NIGC approval, the tribe refused to honor the
alleged oral modification, the developer ceased construction, and the developer attempted to
enforce the alleged oral, unapproved modification by suing the tribe in federal court. Id. at 1095.
The Eighth Circuit held that the alleged oral modification of the NIGC-approved construction
contract "can have no effect with respect to any of the subject matter encompassed by the
Management Agreement." Id. at 1094-95. The IGRA and its implementing regulations'
requirement that any modification to a management contract requires NIGC approval to be valid
"preclude consideration of any subsequent agreements not approved by the Chairman of the
NIGC.,,4 Id. The district court thus was correct in refusing to "consider the content and effect"
of the modification because the subject matter of the modification-the maximum repayment
The Eighth Circuit held the modification was void for an alternative reason as well. The
management contract's "no-oral-modification clause" precluded consideration of the unapproved
oral modification. Turn Key Gaming, 164 F.3d at 1094-95.
4

9

amount-was encompassed by the contract and the modification was not approved.

Id.

Therefore, the district court correctly ignored the modification and gave it no legal effect. See
id.
The Eighth Circuit reached a similar result--concluding that an unapproved amendment
to a management contract was void and unenforceable-in Missouri River Services, 267 F.3d
848. In Missouri River Services, a company and a tribe entered into an agreement in December
of 1987 giving the company exclusive rights to operate gaming facilities "on the Tribe's lands."
Id. at 850. The tribe had land in Nebraska and Iowa. Id. at 851-52. The BIA, which had
management contract approval responsibility at the time, withheld approval of the December
1987 contract and requested specification as to the facility's proposed location and the proposed
gaming offerings it would provide. Id. at 850, 852. The parties altered the December 1987
agreement and submitted a new agreement that the BIA approved in February of 1988, which
stated the facility would be in "Thurston County, Nebraska" and would conduct "Bingo and
Bingo-related activities." Id. at 850. The bingo facility was not successful because the parties
were not permitted to open a full casino at the site. Id. at 851. The bingo facility closed in
September of 1989 after the company had invested more than six million dollars. Id. After the
facility's closing, the parties executed a "Second Amendment to Agreement." Id. This
amendment included language establishing that the parties' original intent was that the Thurston
County bingo facility would include a full casino, although their approved contract did not
reflect that intent. Id. The amendment also waived the company's exclusivity clause so the tribe
could conduct gaming on other lands. Id. This amendment was never approved by the NIGC
or BIA. Id. The tribe subsequently contracted with another gaming company and opened a very
successful casino on the tribe's lands in Iowa. Id. The company demanded arbitration, as the

10

approved contract provided, seeking reimbursement of construction costs for the Nebraska
facility to be paid from the tribe's gaming revenue that included revenue from the successful
Iowa casino. Id. An arbitrator ruled for the company, and the company sought enforcement of
the award in federal court. Id. at 851-52.
The company in Missouri River Services then asked the Eighth Circuit to consider the
unapproved December 1987 agreement and the unapproved "Second Amendment to Agreement"
when construing the scope of the tribe's waiver of sovereign immunity. 267 F.3d at 851-52.
The Eighth Circuit rejected the company's argument that it should consider any unapproved
contract or unapproved amendment when the approved management contract addressed the
scope of the tribe's waiver of sovereign immunity. Id. at 854. The Eighth Circuit held, as it had
previously in Turn Key Gaming, that:
[N]o matter the correct approach in ordinary contract disputes, in
the context of Indian gaming the directives of Congress, when
made apparent, must control. In the context of the IGRA, ... any
management contract that does not receive approval is void, and
that any attempted modification ofan approved contract that does
not ... receive approval, is also void.
Id. at 853 (internal citations omitted). The Eighth Circuit refused to give the unapproved
December 1987 agreement and the unapproved amendment any legal effect. Id.
Colombe and the Tribe's oral modification regarding funding of the OER account was
an attempted oral modification of the approved management contract. This modification was
not submitted to or approved by the Chairman of the NIGC. Congress, through IGRA and its
implementing regulations, has declared any unapproved modifications to management contracts
"void." 25 C.F.R. § 535.1 And the Eighth Circuit has enforced this provision by refusing to
give unapproved modifications legal effect while enforcing the approved management contract,
provided the management contract addresses the issue. Tum Key Gaming, 164 F. 3d at 1094-95;

11

Mo. River Servs., 267 F .3d at 853. Here, the approved management contract controlled the issue
before the Tribal Court, which was the funding ofand disbursement from the OER account. The
Eighth Circuit, as well as other federal courts, have determined to be void oral amendments to
management contracts not approved by the NIGC, and have made that determination without
NIGC input. There was no impediment to the Rosebud Sioux Tribal Court's jurisdiction to
declare that the oral modification had no legal effect. Indeed, the management contract
expressly called for any dispute under the contract to "first be initiated in Rosebud Sioux Tribal
Court." Doc. 9-1 at 63.
A review of the NIGC approval process reveals no impediment to a Tribal Court's
jurisdiction to declare an unapproved oral modification of a casino management contract void
without referring the matter to the NIGC. The Chairman of the NIGC "has exclusive authority
to determine a contract's compliance with IGRA and its regulations." Bruce H. Lien Co. v.
Three Affiliated Tribes, 93 F.3d 1412, 1420 (8th Cir. 1996). The "sole focus" ofthe Chairman's
"paper review" is "to test the sufficiency of the documents submitted to the Secretary of the
Interior in the first instance and to review whether the management agreement meets the
required contents specified under IGRA." ld. at 1418 (internal quotation marks and brackets
omitted). For example, the Chairman will ensure in his review that the "interested parties" have
submitted to and passed background checks and that the documents contain necessary
requirements as to the permitted compensation and contract length. See id. "Despite the breadth
of the approval and review process, passing on the legal validity of the document (as opposed
to approval for a contract seemingly in compliance with IGRA and the regulations) is not within
the scope of the administrative bodies." ld.
Colombe argues that if:

12

[A] tribe wishes to "void" a contract on the ground that it was a
contract not submitted for approval as required by IGRA ... then
the Tribe could request a hearing before the Chairman on the
matter pursuant to § 2711(f), after which appeal could be taken
pursuant to § 2714. If the Tribe wished to recover money from
BBC under the theory that its admitted mutual agreement
regarding the OER was void for want ofNIGC approval, then the
Tribe's remedy was to request a hearing before the Chairman of
NIGC.
Doc. 49 at 7-8 (internal citations and quotation marks omitted). Colombe cites United States ex
reI. The Saint Regis Mohawk Tribe v. President RC.-St. Regis Mgmt. Co., 451 F.3d 44 (2nd
Cir. 2006), to support his argument that only the NIGC has jurisdiction to determine whether the
NIGC's approval of the modification was required. Doc. 49 at 6. The Mohawk Tribe case
supports Colombe's argument and is difficult to distinguish. In Mohawk Tribe, a casino
developer entered into a management contract to construct and operate a casino with a tribe. 451
F.3d at 46. The management contract was approved by the Chairman of the NIGC. Id.
Pursuant to the management contract, the developer entered into a construction contract with a
construction company to build the casino for fourteen million dollars. ld. This construction
contract was not submitted to the NIGC for approval. ld. A year after the casino opened, and
with several years remaining on the management contract, the tribe fired the developer. Id. The
tribe then brought a qui tam action asking a federal court to determine that the construction
contract was "null and void" because it was an unapproved "collateral agreement" to the
management contract and thus had no effect. Id. at 47, 50-51. The Second Circuit held it was
without jurisdiction to decide whether the construction contract is void for failure to get NIGC
approval because the tribe failed to exhaust IGRA's remedies by not allowing the NIGC to pass
on the contract's validity first. Id.
The Second Circuit's holding in Mohawk Tribe that it lacked jurisdiction to declare

13

whether an agreement is subject to NIOC approval is in apparent conflict with Eighth Circuit
precedent and cases from other federal courts that allow courts to determine whether a
modification or amendment is subject to NIOC approval process, to pass on the legal validity
of unapproved contracts and modifications, and, ultimately, to give unapproved modifications
ofcasino management contracts no legal effect. See e.g., Mo. River Servs .. 267 F.3d at 853-54;
Wells Fargo Bank, 658 F.3d at 686. In short, under Eighth Circuit authority, BBC "assumed the
risk of proceeding without having submitted all documents to the Chairman." Casino Magic,
293 F.3d at 425. The Eighth Circuit, whose precedent this Court must observe, has held that an
unapproved modification to a management contract is without legal effect and that courts may
determine that issue. Thus, the Tribal Court, the tribunal the Contract specifically stated to have
initial authority to rule on disputes under the Contract, Doc. 1 at 63; see also Montana v. United
States, 450 U.S. 544, 565-66 (1981) (recognizing tribal authority to regulate "nonmembers who
enter consensual relationships with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements"); Strate v. A-I Contractors, 520 U.S. 438, 453 (1997)
(finding tribal jurisdiction extends where regulatory authority under Montana exists), had
jurisdiction to declare the modification void.

B.

Nature ofthis Action & IGRA

Colombe argues that the "Tribe's claims in its lawsuit against BBC in tribal court that
the agreement to fund the OER was a violation of lORA" are not properly before the Tribal
Court because lORA does not create a "private right of action for an alleged lORA violation."
Doc. 49 at 8. Colombe contends that the "proper venue to seek a remedy for a claimed lORA
violation is the NIOC." Doc. 49 at 8.
lORA does not create a general private right of action for aggrieved parties to assert

14

other than the private rights of action that Congress included explicitly within IGRA. See
Tamiami Partners, Ltd. By & Through Tamiami Dev. Corp. v. Miccosukee Tribe ofIndians of
Florida, 63 F.3d 1030, 1049 (lIth Cir. 1995) (outlining the explicit private rights of action that
IGRA provides for and declining to read into IGRA additional private rights of action); Hein v.
Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1260 (9th Cir. 2000)
("[W]here IGRA creates a private cause of action, it does so explicitly. . .. Where a statute
creates a comprehensive regulatory scheme and provides for particular remedies, courts should
not expand the coverage of the statute."). Thus, direct actions by private parties brought under
IGRA to enforce its provisions will be dismissed unless IGRA explicitly authorizes such an
action. See Tamiami Partners, 63 F.3d at 1049 (dismissing plaintiffs claim that a tribe failed
to issue gaming licenses as IGRA requires because IGRA did not authorize a suit to enforce that
IGRA provision); Montgomery v. Flandreau Santee Sioux Tribe, 905 F.Supp. 740, 744 (D.S.D.
1995) (dismissing claims that a tribe violated IGRA's provision governing gaming fund
disbursement to tribal members because IGRA did not authorize that type of private cause of
action to enforce that IGRA provision).
Neither this action nor the underlying Tribal Court actions sought to enforce an IGRA
provision or some claim not authorized by IGRA. Rather, the earlier Tribal Court action alleges
that BBC is in breach of the Contract, not in breach of an IGRA provision. The Contract
between Colombe and the Tribe provides that "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." Doc. 9-1 at 63. The underlying Tribal Court case was in the nature of a contract
dispute, with the Tribe attempting to enforce its approved management contract and BBC
defending on the basis ofan oral and unapproved modification. Such an action did not need to

15

be explicitly authorized by IGRA.
Therefore, it is hereby
ORDERED that Plaintiff's Motion for Summary Judgment, Doc. 48, is denied. It is
further
ORDERED that Defendants' Motion for Summary Judgment, Doc. 58, is granted.
Dated January /S!~, 20l3.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

16