MM&A PRODUCTIONS, LLC v. YAVAPAI-APACHE NATION

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

MM&A PRODUCTIONS, LLC,

AN ARIZONA LIMITED LIABILITY COMPANY,

Plaintiff/Appellant,

v.

YAVAPAI-APACHE NATION, A FEDERALLY RECOGNIZED INDIAN TRIBE;

YAVAPAI-APACHE NATION’S CLIFF CASTLE CASINO, A BUSINESS

ENTERPRISE OF THE YAVAPAI-APACHE NATION;

TRIBAL GAMING BOARD; AND

CLIFF CASTLE CASINO BOARD OF DIRECTORS,

Defendants/Appellees.

No. 2 CA-CV 2013-0051

Filed January 16, 2014

Appeal from the Superior Court in Pima County

No. C20085949

The Honorable Paul E. Tang, Judge

The Honorable Carmine Cornelio, Judge

AFFIRMED

COUNSEL

Law Office of Michael Meehan, Tucson

By Michael J. Meehan

Counsel for Plaintiff/Appellant

Crowell Law Offices Tribal Advocacy Group, Sedona

By Scott Crowell

William Foreman, Scottsdale

Co-counsel for Defendants/Appellees

MM&A PRODS., LLC v. YAVAPAI-APACHE NATION

Opinion of the Court

OPINION

Presiding Judge Kelly authored the opinion of the Court, in which

Judge Espinosa and Judge Eckerstrom concurred.

K E L L Y, Presiding Judge:

¶1 MM&A Productions, LLC, appeals from the trial court’s

judgment dismissing its contract action against the Yavapai-Apache

Nation and related entities for lack of subject matter jurisdiction. It

argues the court erred by concluding it had failed to show a valid

waiver of the Nation’s sovereign immunity, and by not allowing

further discovery and holding an evidentiary hearing before ruling.

We affirm.

Factual and Procedural Background

¶2 In 2008, MM&A filed a complaint against the Yavapai-

Apache Nation, its tribal gaming board, the tribe’s Cliff Castle

Casino, and the casino’s board of directors (collectively, the Nation),

alleging breach of a 2006 “Exclusive Entertainment and Production

Agreement” and associated claims, including breach of the implied

covenant of good faith and fair dealing, unjust enrichment, tortious

interference with prospective business advantage, and fraud. The

complaint stated the casino’s marketing director, Steven Wood, had

signed the 2006 agreement with MM&A and had waived the

Nation’s sovereign immunity. Attached to the complaint was a copy

of the contract, which had been signed on May 18, 2006, and a

“Waiver of Sovereign Immunity Addendum,” which Wood had

signed on June 30, 2006. MM&A also attached a 2002 “Exclusive

Entertainment Booking Agreement” and a 2003 “Waiver of

Sovereign Immunity,” both signed by a previous marketing director.

¶3 The Nation filed a motion to dismiss the complaint

pursuant to Rule 12(b)(1), Ariz. R. Civ. P., arguing, inter alia, that the

trial court lacked subject matter jurisdiction over the action because

MM&A had not shown a valid waiver of the Nation’s sovereign

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immunity. In support of its motion, the Nation attached a copy of

the Constitution of the Yavapai-Apache Nation, which states in

article XIII:

The Yavapai-Apache Tribe hereby declares

that, in exercising self-determination and

its sovereign powers to the fullest extent,

the Tribe is immune from suit except to the

extent that the Tribal Council expressly

waives sovereign immunity, or as provided

by this constitution.

It also provided a copy of the Cliff Castle Casino Board of Directors’

Act (Board Act), adopted by the Tribal Council in 2005. The Board

Act described the procedure for negotiating and approving

contracts, which required either a majority vote of the Board or

consent of the Tribal Council. It also stated “[a]ll contracts shall to

the greatest extent possible be drafted or negotiated to include

language preserving the sovereign immunity of the Nation.”

¶4 The Nation submitted two declarations by the Tribal

Council’s Executive Secretary, which stated that she had reviewed

the Tribal Council minutes from January through August 2006 and

there had been no motions authorizing any casino employee to

execute the 2006 contract or waiver of immunity. She further stated

there had been no Tribal Council resolution to that effect in 2006 or

2007. It also attached the declaration of a casino board member,

stating there was no resolution in 2006 or 2007 authorizing the board

to enter into a contract with MM&A or to waive the Nation’s

immunity. The casino board’s Administrative Assistant further

declared there had been no motion from January 2006 through

August 2006 for any board member or casino employee to execute

the contract or a waiver of immunity. The Nation’s Acting Attorney

General from October 2005 through December 2006 described the

approval procedure for casino contracts and stated the contract with

MM&A had not been submitted to her office or approved for

consideration by the board.

¶5 In its response to the Nation’s motion to dismiss,

MM&A argued the contract was “an explicit waiver of [the Nation’s]

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Opinion of the Court

sovereign immunity,” Wood “had at least apparent authority” to

waive immunity, the Board could have delegated authority to Wood

to execute the contract, the Nation’s Attorney General had approved

the contract, and the Tribal Council or board may have passed a

resolution prior to 2006 granting Wood the authority to enter into

the contract and waive sovereign immunity. In support of its

contentions, MM&A attached the affidavit of its Executive Director,

who had negotiated the 2006 contract, stating that Wood had told

him the Nation’s Attorney General had reviewed the contract and

the casino’s board of directors had “given him . . . authority to sign

the Contract and the waiver of sovereign immunity,” and that the

Chairperson of the board and a Tribal Council member had told him

in “conversations” that the board and council were “aware of and

approved the waiver of sovereign immunity.”

¶6 After a hearing on the motion, the trial court granted

the Nation’s motion to dismiss. The court was “not persuaded Mr.

Wood possessed authority to waive the sovereign immunity of the

. . . Nation and its affiliates” and concluded MM&A had failed to

demonstrate the Nation had made a “valid sovereign immunity

waiver.” It found “the Yavapai-Apache Nation possesses a clear

protocol by which a business like MM&A can secure a waiver” and

MM&A had “utterly failed to avail itself of these tribal procedures.” 1

This appeal followed.

Apparent Authority to Waive Immunity

¶7 MM&A first argues the trial court erred by concluding

the doctrine of apparent authority was not “available” to prove a

valid waiver of the Nation’s sovereign immunity. Because MM&A

raises a purely legal question, we review it de novo. See City of

Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 50, 181 P.3d

219, 233-34 (App. 2008). And although the trial court may resolve

factual issues bearing on its jurisdiction, we review de novo the

1The trial court also found that MM&A was required to file

this action in federal court, pursuant to the parties’ agreement.

Because we conclude the Nation is immune from suit, we do not

reach that issue.

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court’s ultimate conclusion that the doctrine of sovereign immunity

applies to divest the Arizona courts of jurisdiction over MM&A’s

claims. See Filer v. Tohono O’Odham Nation Gaming Enter., 212 Ariz.

167, ¶ 5, 129 P.3d 78, 80 (App. 2006); Mitchell v. Gamble, 207 Ariz. 364,

¶ 6, 86 P.3d 944, 947 (App. 2004).

¶8 “Indian tribes have long been recognized as possessing

common-law immunities from suit co-extensive with those enjoyed

by other sovereign powers including the United States as a means of

protecting tribal political autonomy and recognizing their tribal

sovereignty which substantially predates [the United States]

Constitution.” Pan Am. Co. v. Sycuan Band of Mission Indians, 884

F.2d 416, 418 (9th Cir. 1989). Pursuant to the doctrine of sovereign

immunity, lawsuits against Indian tribes are barred “absent a clear

waiver by the tribe or congressional abrogation.” Okla. Tax Comm’n

v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).

MM&A does not dispute that each defendant in this action, as a

tribal entity or economic enterprise, is “clearly entitled to the

protection of sovereign immunity.” See In re Greene, 980 F.2d 590,

593 (9th Cir. 1992) (subordinate economic enterprise of tribe immune

from suit for breach of contract); see also Filer, 212 Ariz. 167, ¶ 6, 129

P.3d at 80-81 (subordinate economic enterprise entitled to same

immunity as tribe). But it argues it should be able to “use . . . the

doctrine of apparent authority to establish that the waiver of

sovereign immunity [in this case] was binding against the Nation.”

¶9 As the trial court noted in its ruling, waivers of

sovereign immunity are strictly construed in favor of the sovereign.

Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d

315, 320 (10th Cir. 1982). The United States Supreme Court has

articulated repeatedly that a waiver of sovereign immunity “‘cannot

be implied but must be unequivocally expressed.’” Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58 (1978), quoting United States v.

Testan, 424 U.S. 392, 399 (1976). In other words, the waiver must

“expressly indicate[] the [tribe]’s consent” to suit. Pan Am. Co., 884

F.2d at 418. In addition, “if a tribe ‘does consent to suit, any

conditional limitation it imposes on that consent must be strictly

construed and applied.’” Mo. River Servs., Inc. v. Omaha Tribe of Neb.,

267 F.3d 848, 852 (8th Cir. 2001), quoting Namekagon Dev. Co. v. Bois

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Forte Reservation Hous. Auth., 517 F.2d 508, 509 (8th Cir. 1975). In this

case, the Nation’s Constitution states it is “immune from suit except

to the extent that the Tribal Council expressly waives sovereign

immunity, or as provided by this constitution.” Yavapai-Apache

Nation Const., art. XIII.

¶10 Federal law indicates that an Indian tribe’s

authorization to waive its immunity by agreement must be express,

contrary to MM&A’s suggestion that an official cloaked with

apparent authority may execute a valid waiver absent actual

authority to do so. Generally, sovereign immunity “cannot be

waived by officials” in a way that “subject[s] the [sovereign] to suit

in any court in the discretion of its responsible officers.” United

States v. U.S. Fid. & Guar. Co. (USF&G), 309 U.S. 506, 513 (1940); see

also Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288,

1295 (10th Cir. 2008) (tribal company not equitably estopped from

asserting immunity where company officials told distributor it did

not need waiver because misrepresentations of tribe’s officials or

employees “cannot affect its immunity from suit”). This is

consistent with the principle that “[c]onsent alone gives jurisdiction

to adjudge against a sovereign.” USF&G, 309 U.S. at 514.

¶11 For example, in Memphis Biofuels, LLC v. Chickasaw

Nation Industries, Inc., 585 F.3d 917, 918-19 (6th Cir. 2009), an energy

company that had contracted with a tribal corporation produced a

signed, written agreement with language expressly waiving

sovereign immunity. The company believed the tribal corporation

had obtained the required approval for the waiver provision from its

board, but it had not. Id. at 922. The Sixth Circuit concluded the

tribal corporation remained immune from suit, and rejected the

company’s attempt to prove waiver based on equitable doctrines

and the fact that the tribal corporation had “signed the agreement

representing that it waived sovereign immunity.” Id. The court

noted that case law had established “unauthorized acts of tribal

officials are insufficient to waive tribal-sovereign immunity,”

despite any seemingly unfair result. Id. The holding in Memphis

Biofuels later was cited with approval by the Eighth Circuit in

Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680, 688 (8th

Cir. 2011).

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¶12 Similarly, the court in World Touch Gaming, Inc. v.

Massena Management, LLC, 117 F. Supp. 2d 271, 276 (N.D.N.Y. 2000),

rejected the proposition that the agency principle of apparent

authority can trump the requirement of an Indian tribe’s express

consent to suit. In that case, World Touch filed a breach of contract

action based on a sale agreement it had entered with the

management company operating the St. Regis Mohawk Tribe’s

casino. Id. at 272-73. The management company’s senior vice

president had signed the agreement, which provided

“Notwithstanding the aforementioned Tribal Sovereignty the Tribe

agrees to submit to the jurisdiction of the state and federal courts for

the sole and limited purpose of enforcement of the obligations under

this contract.” Id. at 273. Despite the contract’s language explicitly

waiving immunity, the court concluded the Tribe retained its

immunity from suit because its Constitution required an express

waiver of sovereign immunity by the Tribal Council and the Council

had neither expressly waived its immunity nor authorized the vice

president to do so. Id. at 275. The court rejected World Touch’s

argument that the management company’s apparent authority to

bind the casino and the Tribe to the terms of the contract could

waive the Tribe’s immunity, noting that any waiver must be

unequivocally expressed. Id. at 276, citing Santa Clara Pueblo, 436

U.S. at 58-59.

¶13 MM&A argues we should disregard World Touch,

Memphis Biofuels, Native American Distributing, and other similar

cases because it disagrees with their reasoning. It argues those cases

employed a “flawed analysis” by relying on cases that discuss

whether a waiver’s language was express—rather than whether the

authority to waive immunity was express. However, we cannot

agree with MM&A’s suggestion that these cases confuse or

improperly extend the principle that a waiver of immunity must be

unequivocally expressed. Express authorization and express

language are two distinct but related issues, and requiring an

express delegation of a tribe’s authority to waive its immunity is a

logical and consistent application of the overarching principle

encompassing both issues: that the tribe itself must expressly

consent to a waiver of its immunity. See Santa Clara Pueblo, 436 U.S.

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at 58; Pan Am. Co., 884 F.2d at 418. To hold otherwise would result

in waivers that could not be traced to any explicit action by a tribe.

¶14 MM&A urges us instead to adopt the reasoning of a

Colorado state court appellate decision, Rush Creek Solutions, Inc. v.

Ute Mountain Ute Tribe, 107 P.3d 402, 404 (Colo. App. 2004), in which

the Chief Financial Officer (CFO) of the Ute Mountain Ute Tribe

executed a contract that expressly waived the Tribe’s immunity. In

Rush Creek, the court disagreed with World Touch and applied

apparent authority principles to hold that, where the CFO was

authorized to execute contracts on behalf of the Tribe, and where the

Tribe’s constitution and policies were silent concerning procedures

for signing contracts or waiving immunity, the CFO could validly

waive the Tribe’s immunity. Id. at 406-08. MM&A also notes that a

Supreme Court of Nebraska decision, StoreVisions, Inc. v. Omaha

Tribe of Nebraska, 795 N.W.2d 271, 278-80 (2011), adopted the

reasoning of Rush Creek and applied agency principles, including

apparent authority, to find a valid waiver where the tribal chairman

had executed a waiver in the presence of five of seven tribal council

members.

¶15 Even assuming that applying Rush Creek’s reasoning to

this case would change the outcome of the motion to dismiss,2 we

decline to adopt its reasoning as contrary to the weight of

controlling law. In deciding whether tribal sovereign immunity has

been waived, federal law controls and cannot be diminished by the

states. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998)

(“[T]ribal immunity is a matter of federal law and is not subject to

diminution by the States.”). As noted above, we agree with cases

such as Memphis Biofuels, Native American Distributing, and World

Touch that it would be inconsistent with United States Supreme

Court precedent to apply equitable principles such as apparent

authority to defeat a sovereign’s immunity from suit. See Santa Clara

2The Nation disputes this proposition, noting that Rush Creek

relied on facts that do not exist in this case, including the official’s

authority to contract on behalf of the sovereign, and silence in the

tribe’s constitution and bylaws regarding waivers of immunity. See

107 P.3d at 404, 407.

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Pueblo, 436 U.S. at 58; Pan Am. Co., 884 F.2d at 418 (requiring tribe’s

express consent to waiver).

¶16 Moreover, as the trial court noted, Rush Creek appears to

represent the minority view even among state case law on the issue.

See, e.g., Hydrothermal Energy Corp. v. Fort Bidwell Indian Cmty.

Council, 216 Cal. Rptr. 59, 63 (App. 1985) (tribal chairman could not

waive tribe’s immunity absent express delegation of duty from

tribe); Dilliner v. Seneca-Cayuga Tribe, 258 P.3d 516, ¶¶ 17, 19 (Okla.

2011) (rejecting equitable theories as basis for waiver; where tribal

council authorized Chief to execute contracts, but not waive

immunity, express waivers in those contracts were not effective);

Chance v. Coquille Indian Tribe, 963 P.2d 638, 640-42 (Or. 1998)

(rejecting apparent authority theory and holding that, even if

contract’s language waiving immunity was express, contract not

valid where signing official lacked authority under tribal law to

waive immunity); Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108,

¶ 12 (S.D. 1998) (without clear expression of waiver by tribal council,

acquiescence of tribal officials cannot waive immunity because

“waiver must be clear and unequivocal and must issue from a tribe’s

governing body, not from unapproved acts of tribal officials”).

¶17 MM&A also raises policy concerns regarding the

requirement of an express delegation of authority to waive

sovereign immunity. It contends such a rule “would unduly expand

Indian sovereign immunity at a time when its very existence, albeit

adhered to by the Supreme Court which created it, is questioned.”

In support, it notes that the United States Supreme Court in Kiowa

Tribe expressed concern about “the wisdom of perpetuating the

doctrine” of tribal immunity from suit because it extends beyond

what is necessary to protect tribal self-governance. 523 U.S. at 758.

Nonetheless, the Kiowa court rejected an invitation to abrogate the

principle of sovereign immunity, reserving such decisions to

Congress, which “is in a position to weigh and accommodate the

competing policy concerns and reliance interests.” Id. at 758-59.

Likewise, we decline the invitation to apply apparent authority

principles to waivers of sovereign immunity in order to ameliorate

its effects, recognizing that “Indian sovereignty, like that of other

sovereigns, is not a discretionary principle subject to the vagaries of

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MM&A PRODS., LLC v. YAVAPAI-APACHE NATION

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the commercial bargaining process or the equities of a given

situation.” Pan Am. Co., 884 F.2d at 419 (responding to argument

that contract implying waiver was “trap” for unsuspecting party).

To the extent the trial court implied it would not find a valid waiver

of the Nation’s sovereign immunity based on a theory of apparent

authority, it did not err.

Request for Discovery and Evidentiary Hearing

¶18 MM&A argues independently that this action should be

remanded for further discovery and an evidentiary hearing, “at least

on the basis of actual authority.” The trial court has broad discretion

to resolve discovery matters, which we will not disturb absent a

showing of abuse. Braillard v. Maricopa Cnty., 224 Ariz. 481, ¶ 52, 232

P.3d 1263, 1279 (App. 2010); cf. Simon v. Safeway, Inc., 217 Ariz. 330,

¶ 4, 173 P.3d 1031, 1033 (App. 2007) (we review for abuse of

discretion court’s ruling on Rule 56(f), Ariz. R. Civ. P., motion

requesting further discovery before ruling on motion for summary

judgment). The court’s discretion in matters of discovery includes

“the right to decide controverted factual issues, to draw inferences

where conflicting inferences are possible and to weigh competing

interests.” Brown v. Superior Court, 137 Ariz. 327, 331-32, 670 P.2d

725, 729-30 (1983). The court abuses its discretion if it makes an

error of law or the record does not provide substantial support for

its decision. Braillard, 224 Ariz. 481, ¶ 52, 232 P.3d at 1279.

¶19 “When ‘jurisdictional fact issues are not intertwined

with fact issues raised by a plaintiff’s claim on the merits, the

resolution of those jurisdictional fact issues is for the trial court.’”

Moulton v. Napolitano, 205 Ariz. 506, ¶ 8, 73 P.3d 637, 641-42 (App.

2003), quoting Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218,

1223 (App. 1991). To resolve those issues, the court may consider

affidavits, depositions, and exhibits, and does not thereby transform

a motion to dismiss into a motion for summary judgment. Id. In

reviewing the court’s determination, we view the record in the light

most favorable to upholding its ruling, “inferring any necessary

findings reasonably supported by the evidence, and keeping in

mind that the burden of demonstrating jurisdiction lies with the

Plaintiffs.” Id.

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¶20 MM&A argues it made a “sufficient showing to require

deferral” of a decision on the issue of the trial court’s jurisdiction.

Specifically, it notes that the Board Act clearly implied a person

authorized to execute contracts also had permission to waive the

Nation’s sovereign immunity, and that MM&A “had been engaged

in successive contracts for seven years, which the defendants

recognized, honored, and paid,” suggesting the 2006 contract had

been signed with authority. It urges that “evidence of actual

delegation by the Casino Board . . . [wa]s key to the issue of waiver.”

And it suggests the trial court’s denial of its request for further

discovery and an evidentiary hearing was contrary to the

“expectation[s]” regarding discovery articulated in Gatecliff v. Great

Republic Life Insurance Co., 154 Ariz. 502, 744 P.2d 29 (App. 1987).

¶21 Gatecliff provides that, “[w]hen the court’s subject

matter jurisdiction is challenged pursuant to Rule 12(b)(1), the court

may take evidence and resolve factual disputes essential to its

disposition of the motion,” noting that the existence of a factual

dispute therefore does not require denial of the motion. Id. at 506,

744 P.2d at 33. It also noted that a court “may . . . conduct an

evidentiary hearing if necessary” to resolve a challenge to its

personal jurisdiction. Id. MM&A concedes that nothing in Gatecliff

requires the court to hold an evidentiary hearing or narrows the

court’s discretion to control the scope of discovery. See Moulton, 205

Ariz. 506, ¶ 8, 73 P.3d at 641-42 (court has discretion to determine

whether evidentiary hearing necessary).

¶22 Before making its ruling, the trial court held a hearing

on the motion where the parties discussed the evidence that had

been submitted on the motion to dismiss and supplemental

affidavits filed by MM&A. Substantial evidence supported the trial

court’s determination that the Nation had not, by virtue of the 2006

Waiver of Sovereign Immunity Addendum, waived its immunity as

to the 2006 contract.

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¶23 The Board Act, adopted by the Tribal Council in 2005,

stated in relevant part:

SECTION XIV. Contracts; Authority; Limited

Waiver of Sovereign Immunity; Mandatory

Provisions

1. The Board shall have the power to

negotiate and approve contracts for the

expenditures of funds within the approved

budgets of the Board, Cliff Castle Casino

and Cliff Castle Lodge and Conference

Center, subject to review by the Office of

the Attorney General.

2. The Chairperson of the Board is hereby

delegated the authority to execute contracts

approved by majority vote of the Board

subject to the requirements and restrictions

in this section.

3. No contracts obligating expenditure of

funds outside the approved budgets of the

Board, Cliff Castle Casino or Cliff Castle

Lodge and Conference Center shall be

approved without prior consent of the

Council.

4. All contracts shall to the greatest extent

possible be drafted or negotiated to include

language preserving the sovereign

immunity of the Nation.

It also provided that “[a]ll official actions of the Board shall be taken

by motion or resolution approved by the affirmative vote of a

majority of those Directors present at a meeting.” Therefore, even

assuming a valid contract could waive the Nation’s sovereign

immunity, the Tribal Council authorized contracts to be executed

only with the approval of a majority vote of the board or with the

Tribal Council’s prior consent.

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¶24 Viewed in the light most favorable to upholding the

trial court’s ruling, Moulton, 205 Ariz. 506, ¶ 8, 73 P.3d at 642, the

evidence established that neither the 2006 contract nor the waiver

addendum was approved by the casino’s board or the Tribal

Council. The Nation submitted two declarations of the Tribal

Council’s Executive Secretary. She stated that, since 1992, she has

been responsible for ensuring that all council motions and their

outcomes are recorded in the minutes. She had reviewed all

minutes from Tribal Council meetings from January through August

2006, and there were no motions “to approve the Tribal Council

Chairman, The Cliff Castle Casino Board of Directors, or any other

Board member or Casino employee (including Mr. Steven Wood), to

execute an exclusive entertainment and production agreement, or to

execute a waiver of sovereign immunity addendum to such

agreement.” She also declared “there exists no resolution [in 2006 or

2007] authorizing the Nation, the Tribal Council, or any Nation

entities or individual employees to enter into a contract with MM&A

Productions, LLC or to otherwise waive the Nation’s sovereign

immunity in favor of MM&A Productions.”

¶25 A member of the casino’s board declared she had

searched all Board resolutions enacted from 2006 through 2007 and

“there exists no resolution authorizing the Board, the Chairman of

the Board, or any individual Cliff Castle employees to enter into a

contract with MM&A Productions, LLC or to otherwise waive the

Nation’s sovereign immunity in favor of MM&A Productions.” The

casino board’s Administrative Assistant further declared that she

had reviewed all board minutes from January 2006 through August

2006 and that there was no “motion for the Chairman, or any other

Board member or Casino employee (including Mr. Steven Wood), to

execute an exclusive entertainment and production agreement, or to

execute a waiver of sovereign immunity addendum to such

agreement on behalf of the Board, the Casino or the Nation, in favor

of MM&A [P]roductions.” Additionally, the Nation’s Acting

Attorney General from October 2005 through December 2006

declared that she was responsible for ensuring compliance with the

casino Board of Directors Act. She stated her office had applied a

“green sheet” approval procedure to all casino contracts, under

which her signature was required on a green form attached to all

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proposed contracts before the casino board could vote to approve

the contract. She stated Wood was advised of the procedure, and

the 2006 contract with MM&A was not submitted to her office or

approved for consideration by the board.

¶26 The Board Act does not authorize the board to allow an

individual employee to execute contracts or waive the Nation’s

immunity. To the contrary, it prescribes a clear procedure that

requires accountability to and oversight by a majority of the board

or the Tribal Council, depending on the size of the contract.

Therefore, MM&A’s speculation that the board could have, at some

point in time not covered by the affidavits, delegated authority to

Wood to take those actions is contrary to the evidence in the record.

For the same reasons, it is not only speculative but contrary to the

evidence to suggest the Tribal Council itself would have delegated

authority to a casino employee to waive its immunity only one year

after passing a Board Act that maintains careful oversight over

casino contracts. Based on the evidence in the record, and in light of

the presumption against finding waivers of sovereign immunity,

Demontiney v. United States ex rel. Dep’t of Interior, 255 F.3d 801, 811

(9th Cir. 2001), we cannot say the trial court abused its discretion in

concluding further discovery was unnecessary to reach the

conclusion that the Nation had not waived its immunity.

¶27 MM&A additionally argues the evidence was

“incomplete” because it “did not cover the entire relevant time

period.” It notes that it attached to its complaint a copy of a 2003

waiver of sovereign immunity, which stated the “Tribe hereby

expressly and irrevocabl[y] waives its sovereign immunity from any

breach or alleged breach in connection with Tribe’s obligations and

considerations under any and all the Contract(s) between Tribe and

Producer, including but not limited to . . . Exclusive Agreement(s).”

The Nation’s affidavit evidence does not cover the time period that

would be relevant to that waiver, and the Board Act in evidence was

not effective until 2005. Therefore, we address separately whether

the trial court erred by concluding further discovery was not

necessary to determine whether the 2003 purported waiver had

waived the Nation’s immunity as to the 2006 contract.

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¶28 There is a strong presumption against finding a waiver

of tribal sovereign immunity. Demontiney, 255 F.3d at 811. Any

waiver of an Indian tribe’s sovereign immunity “must be strictly

construed in its favor.” Beltran v. Harrah’s Ariz. Corp., 220 Ariz. 29,

35-36, 202 P.3d 494, 500-01 (App. 2008); S. Unique, Ltd. v. Gila River

Pima-Maricopa Indian Cmty., 138 Ariz. 378, 383, 674 P.2d 1376, 1381

(App. 1983).

¶29 Although the trial court did not address the issue

specifically in its ruling, its implied finding that it properly could

determine the issue of waiver without collecting further evidence of

the board’s and Tribal Council’s actions during 2003 or other years

was appropriate. The 2003 waiver applied to “any and all the

Contract(s) between Tribe and [MM&A].” Although it does not

explicitly exclude future contracts, neither does it include them.

MM&A provided evidence that the casino’s former marketing

director had signed at least one contract in 2002, and it is a

reasonable reading of the waiver that it was intended to apply only

to existing contracts. Therefore, construing the waiver strictly in

favor of preserving the Nation’s immunity, a 2003 waiver signed by

one marketing director was insufficient to waive the Nation’s

immunity regarding a contract executed over three years later and

signed by a different director. Therefore, whether or not the

previous director had authority to sign the 2003 waiver would not

have affected the outcome of this case, and the court did not abuse

its discretion in determining further discovery on that issue was

unnecessary.

Disposition

¶30 For the foregoing reasons, the trial court’s judgment is

affirmed.

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