Petition for Writ of Certiorari — Lynn D. Becker, Petitioner v. Ute Indian Tribe of the Uintah and Ouray Reservation, et al.

Supreme Court briefApr 6, 2022

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No. ______

IN THE

Supreme Court of the United States

LYNN D. BECKER,

Petitioner,

UTE INDIAN TRIBE OF THE UINTAH AND OURAY

RESERVATION; UINTAH AND OURAY TRIBAL BUSINESS

COMMITTEE; UTE ENERGY HOLDINGS, LLC,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID K. ISOM

ISOM LAW FIRM

299 South Main Street

Suite 1300

Salt Lake City, UT 84111

(801) 209-7400

david@isomlawfirm.com

JOHN S. MORAN

Counsel of Record

MIKE ANDREWS

FRANCIS J. AUL

MCGUIREWOODS LLP

888 16th Street N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2817

jmoran@mcguirewoods.com

Counsel for Petitioner

April 6, 2022

QUESTIONS PRESENTED

1. Whether a federal court may force a non-consenting, non-Indian plaintiff to exhaust his

claims in tribal court when the defendant tribe

has expressly consented by contract to federal

or state court jurisdiction and waived both sovereign immunity and tribal exhaustion.

2. Whether a state court may adjudicate a contractual dispute between a tribe and a non-Indian

where the tribe has provided specific contractual consent to state court jurisdiction; or instead, whether the Constitution or laws of the

United States prohibit such exercises of state

court jurisdiction unless the State has assumed

general civil jurisdiction over tribal territory

under Sections 1322 and 1326 of Title 25.

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the

cover page except for the Hon. Barry G. Lawrence, District Judge, Utah Third Judicial District Court.

iii

STATEMENT OF RELATED PROCEEDINGS

This case is directly related to the following proceedings in the U.S. Court of Appeals for the Tenth

Circuit:

Becker v. Ute Indian Tribe of the Uintah & Ouray

Rsrv., No. 13-4172 (CA10) (Oct. 21, 2014)

Becker v. Ute Indian Tribe of the Uintah & Ouray

Rsrv., No. 16-4175 (CA10) (Aug. 25, 2017)

Ute Indian Tribe v. Lawrence, No. 16-4154 (CA10)

(Nov. 7, 2017)

Becker v. Ute Indian Tribe of Uintah & Ouray Rsrv.,

Nos. 18-4030 & 18-4072 (CA10) (Aug. 3, 2021)

Becker v. Ute Indian Tribe of Uintah & Ouray Rsrv.,

Nos. 18-4030 & 18-4072 (CA10) (Jan. 12, 2022) (denying rehearing)

Ute Indian Tribe of the Uintah & Ouray Rsrv. v.

Lawrence, No. 18-4013 (CA10) (Jan. 6, 2022)

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDINGs ......................... ii

STATEMENT OF RELATED PROCEEDINGS .......iii

TABLE OF CONTENTS ........................................... iv

TABLE OF APPENDICES ........................................ vi

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 4

CONSTITUTIONAL & STATUTORY

PROVISIONS INVOLVED .............................. 4

STATEMENT OF THE CASE ................................... 5

A. Tribal Sovereignty ...................................... 5

B. Becker’s Contract with the Tribe ............... 9

C. Proceedings Below .................................... 12

REASONS FOR GRANTING THE PETITION....... 20

The Courts of Appeals Are Divided on

Two Important Questions Involving

Contractual Disputes with Tribes. ................ 20

A. The Tenth Circuit’s Decision in Becker III

Deepens a Recognized Split over the

Application of the Tribal Exhaustion

Doctrine to Contracts that Select a

Nontribal Forum....................................... 20

B. Becker IV Created a Split on Whether

Contractual Consent Suffices for State

Court Jurisdiction over a Contractual

Dispute with a Tribe. ............................... 25

II.

The Court Should Grant Review to

Resolve Irreconcilable Conflicts Among

the Lower Courts. .......................................... 29

III.

The Decisions Below Are Wrong. .................. 33

A. Tribal Exhaustion Is Not Required. ........ 33

B. The Utah Courts Have Jurisdiction. ....... 35

CONCLUSION ......................................................... 37

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals for the

Tenth Circuit, Ute Indian Tribe of the Uintah &

Ouray Rsrv. v. Lawrence, No. 18-4013

(January 6, 2022) .......................................... App.1

Appendix B

Order & Opinion, United States Court of Appeals

for the Tenth Circuit, Becker v. Ute Indian Tribe

of Uintah & Ouray Rsrv., Nos. 18-4030 & 18-4072

(August 3, 2021) .......................................... App.49

Appendix C

Memorandum Decision and Order, United States

District for the District of Utah, Becker v. Ute Indian Tribe of Uintah, No. 2:16-cv-00958-CW

(Apr. 30, 2018) ............................................. App.75

Appendix D

Memorandum Decision and Order, United States

District Court for the District of Utah, Becker v.

Ute Indian Tribe of Uintah, No. 2:16-cv-00579-CW

(Apr. 30, 2018) ............................................. App.83

Appendix E

Order Denying Rehearing, United States Court of

Appeals for the Tenth Circuit, Ute Indian Tribe of

the Uintah & Ouray Rsrv. v. Lawrence, Nos. 184013 & 18-4072

(Jan. 12, 2022) ........................................... App.203

vii

TABLE OF AUTHORITIES

Page(s)

Cases

Altheimer & Gray v. Sioux Mfg. Corp.,

983 F.2d 803 (CA7 1993) .............................. passim

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) .............................................. 31

Atl. Marine Const. Co. v. U.S. Dist. Ct.

for W. Dist. of Texas,

571 U.S. 49 (2013) ................................................ 33

Bank One, N.A. v. Shumake,

281 F.3d 507 (CA5 2002) .................................. 2, 20

Basil Cook Enterprises, Inc. v. St. Regis

Mohawk Tribe,

117 F.3d 61 (CA2 1997) ........................................ 21

Becker v. Ute Indian Tribe of Uintah &

Ouray Rsrv.,

11 F.4th 1140 (CA10 2021) ............................ 21, 32

Becker v. Ute Indian Tribe of the Uintah

& Ouray Reservation,

868 F.3d 1199 (CA10 2017) .................................. 14

Becker v. Ute Indian Tribe of the Uintah

& Ouray Rsrv.,

770 F.3d 944 (CA10 2014) .................................... 12

Bradley v. Crow Tribe of Indians,

67 P.3d 306 (Mont. 2003) ..................................... 28

viii

C & L Enterprises, Inc. v. Citizen Band

Potawatomi Indian Tribe of Okla.,

532 U.S. 411 (2001) ...................................... passim

Campo Band of Mission Indians v.

Superior Ct.,

137 Cal. App. 4th 175 (2006) ............................... 30

El Paso Nat. Gas Co. v. Neztsosie,

526 U.S. 473 (1999) .............................................. 29

Enerplus Res. (USA) Corp. v. Wilkinson,

865 F.3d 1094 (CA8 2017) .................................... 24

FGS Constructors, Inc. v. Carlow,

64 F.3d 1230 (CA8 1995) ...................................... 24

Harvey v. Ute Indian Tribe of Uintah

and Ouray Reservation,

2018 WL 1327120 (Mar. 7, 2018) ........................ 30

Iowa Mutual Insurance Co. v. LaPlante,

480 U.S. 9 (1987) .................................................... 6

Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751 (1998) .............................................. 35

Marra v. Papandreou,

216 F.3d 1119 (CADC 2000) ................................ 35

Meyer & Assocs., Inc. v. Coushatta Tribe

of Louisiana,

992 So. 2d 446 (La. 2008) ............................... 27, 30

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) .................................. 5, 7, 8, 32

National Farmers Union Insurance

Companies v. Crow Tribe of Indians,

471 U.S. 845 (1985) ...................................... passim

Nevada v. Hicks,

533 U.S. 353 (2001) ...................................... passim

Ninigret Dev. Corp. v. Narragansett

Indian Wetuomuck Hous. Auth.,

207 F.3d 21 (CA1 2000) ........................ 2, 20, 22, 30

Oglala Sioux Tribe v. C & W

Enterprises, Inc.,

542 F.3d 224 (CA8 2008) ...................... 3, 26, 27, 30

Okla. Tax Comm’n v. Sac & Fox Nation,

508 U.S. 114 (1993) (“Oklahoma did

not assume jurisdiction pursuant to

[§ 1322(a)].”) ................................................... 27, 36

Outsource Servs. Mgmt., LLC v.

Nooksack Bus. Corp.,

333 P.3d 380 (Wash. 2014) (en banc) ............ 27, 30

Rent-A-Ctr., W., Inc. v. Jackson,

561 U.S. 63 (2010) ................................................ 35

Rocca v. Thompson,

223 U.S. 317 (1912) .............................................. 31

Sage v. Sicangu Oyate Ho, Inc.,

473 N.W.2d 480 (S.D. 1991) ................................. 27

Scherk v. Alberto–Culver Co.,

417 U.S. 506 (1974) .............................................. 35

Sheffer v. Buffalo Run Casino, PTE,

Inc.,

315 P.3d 359 (Ok. 2013) ................................. 27, 36

Stifel, Nicolaus & Co. v. Lac du

Flambeau Band of Lake Superior

Chippewa Indians,

807 F.3d 184 (CA7 2015) .......................... 23, 30, 34

Strate v. A-1 Contractors,

520 U.S. 438 (1997) .................................. 14, 31, 34

United States v. Wheeler,

435 U.S. 313 (1978) ................................................ 5

Ute Indian Tribe of the Uintah & Ouray

Rsrv. v. Lawrence,

22 F.4th 892 (CA10 2022) ............................ passim

Ute Indian Tribe v. Lawrence,

875 F.3d 539 (CA10 2017) .................................... 13

Western Sky Financial v. Jackson,

2015 WL 678189 (Feb. 13, 2015) ......................... 30

Williams v. Lee,

358 U.S. 217 (1959) .......................................... 7, 25

Constitutional Provisions

U.S. Const. Art. I, § 8, cl. 3 .......................................... 4

Statutes

25 U.S.C. § 1322(a) ............................................ passim

25 U.S.C. § 1326 ................................................ passim

28 U.S.C. § 1254(1) ...................................................... 4

Utah Code Ann. § 9-9-201 ......................................... 16

Other Authorities

News Release, National Indian Gaming

Commission (Aug. 17, 2021),

https://www.nigc.gov/news/detail/202

0-indian-gaming-revenues-of-27.8billion-show-a-19.5-decrease ................................ 32

U.S. Dep’t of Agric., American

Indian/Alaska Native Producers

(2017),

https://www.nass.usda.gov/Publicatio

ns/Highlights/2019/2017Census_Ame

ricanIndianAlaskaNative_Producers.

pdf ......................................................................... 31

U.S. Dep’t of the Interior, Natural

Resources Revenue Data,

https://revenuedata.doi.gov/querydata/?dataType=Revenue&landType

=Native%20American .......................................... 32

PETITION FOR A WRIT OF CERTIORARI

When an Indian Tribe agrees to resolve disputes

with a counterparty in federal or state court, “[t]o refuse enforcement of this routine contract provision

would be to undercut the Tribe’s self-government and

self-determination.” Altheimer & Gray v. Sioux Mfg.

Corp., 983 F.2d 803, 815 (CA7 1993). That is precisely

what the Tenth Circuit did in the two decisions below.

The Court of Appeals denied Petitioner Lynn

Becker a federal or state forum for his contractual dispute with Respondent Ute Indian Tribe of Uintah and

Ouray Reservation (“the Tribe”), notwithstanding the

parties’ express choice of forum and notwithstanding

the Tribe’s express waiver of “tribal exhaustion”—a

doctrine this Court articulated in National Farmers

Union Insurance Companies v. Crow Tribe of Indians,

471 U.S. 845 (1985). See also Nevada v. Hicks, 533 U.S.

353, 369 (2001). The Tenth Circuit thus deepened one

circuit split and created another. And it erected barriers to commerce that will harm Tribes’ self-determination and self-government and discourage economic development if left uncorrected.

Years ago, the Tribe retained Becker to develop

and market the Tribe’s oil and natural gas reserves.

In their contract, the Tribe unambiguously agreed

that disputes would be litigated in federal or state

court—rather than tribal court—and provided multiple guarantees to that effect: (1) the Tribe waived sovereign immunity for disputes arising from the Agreement, App.59-60; (2) the Tribe expressly waived tribal

exhaustion and agreed to submit to the jurisdiction of

the U.S. District Court for the District of Utah, or alternatively, any court of competent jurisdiction,

App.60; and (3) the parties agreed that “all disputes

arising [from the contract] shall be subject to, governed by and construed in accordance with the laws of

the State of Utah.” App.59.

Notwithstanding this clarity, when a dispute arose,

the Tribe fought Becker’s efforts to bring his claims

first in federal court and later in state court. The Tribe

instead sought to force Becker to exhaust his claims in

tribal court. And in the two decisions below, the Tenth

Circuit blessed the Tribe’s tactics.

In the first decision, the Court of Appeals held that

Becker was required to exhaust his claims in tribal

court. The court recognized that, in the Agreement,

the Tribe had consented to federal or state court jurisdiction and waived both sovereign immunity and

tribal exhaustion. But the court nevertheless held that

tribal exhaustion was required. The Tenth Circuit

thus deepened an acknowledged circuit split over

“whether contractual forum-selection clauses escape

application of the [tribal exhaustion] doctrine.” Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck

Hous. Auth., 207 F.3d 21, 33 (CA1 2000).1 This established split now stands at 3-2: The First, Second, and

Tenth Circuits apply the doctrine notwithstanding a

Tribe’s clear waiver of exhaustion and agreement to

submit to another forum, while the Seventh and

Eighth Circuits honor a Tribe’s agreement.

1 See also Bank One, N.A. v. Shumake, 281 F.3d 507, 515 n.32

(CA5 2002) (describing the split without taking a position).

In its second decision, the Tenth Circuit held that

Utah courts—where Becker filed suit after the federal

court declined jurisdiction—lacked jurisdiction over

the dispute. Notwithstanding the Tribe’s contractual

consent, the court concluded that Utah courts could

not exercise civil jurisdiction over this specific contractual dispute absent tribal consent to general civil jurisdiction under 25 U.S.C. § 1322(a), provided through

a special election under § 1326. The Tenth Circuit

thus split from the Eighth Circuit and several state

courts over whether a Tribe may contractually consent

to state-court jurisdiction in specific cases. See Oglala

Sioux Tribe v. C & W Enterprises, Inc., 542 F.3d 224

(CA8 2008).

These important issues affect non-Indians, Tribes,

and tribal members alike. If allowed to stand, the

Tenth Circuit’s approach renders even the clearest

contractual waiver illusory. Nothing about the tribal

exhaustion doctrine or principles of tribal sovereignty

requires such an inequitable result. This case presents

an excellent vehicle for the Court to provide guidance

on the adjudication of contracts between Tribes and

non-Indians. This Court should grant the petition.

OPINIONS BELOW

The Tenth Circuit’s opinion in Case Nos. 18-4030

& 18-4072 is reported at 11 F.4th 1140 and reproduced

at App.52. The district court’s memorandum decision

and order is reported at 311 F.Supp.3d 1284 and

reproduced at App.78.

The Tenth Circuit’s opinion in Case No. 18-4013 is

reported at 22 F.4th 892 and reproduced at App.1. The

district court’s memorandum decision and order is

reported at 312 F.Supp.3d 1219 and reproduced at

App.86.

JURISDICTION

The Court of Appeals entered its judgment in Case

Nos. 18-4030 & 18-4072 on August 3, 2021 and denied

Becker’s timely rehearing petition on January 12,

2022. The Court of Appeals entered judgment in Case

No. 18-4013 on January 6, 2022. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL & STATUTORY

PROVISIONS INVOLVED

Article I, Section 8, clause 3 of the U.S. Constitution, the “Commerce Clause,” provides that “Congress

shall have power * * * To regulate Commerce with foreign Nations, and among the several States, and with

the Indian Tribes * * * .” U.S. CONST. art. I, § 8, cl. 3.

Section 1322 of Title 25 provides that “[t]he consent

of the United States is hereby given to any State not

having jurisdiction over civil causes of action * * * to

which Indians are a party which arise in the areas of

Indian country situated within such State to assume,

with the consent of the tribe * * * such measure of jurisdiction over any or all such civil causes of action

arising within such Indian country * * * to the same

extent that such State has jurisdiction over other civil

causes of action * * * .” 25 U.S.C. § 1322(a).

Section 1326 of Title 25 provides that “State jurisdiction acquired pursuant to this subchapter with respect to criminal offenses or civil causes of action, or

with respect to both, shall be applicable in Indian

country only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting

at a special election held for that purpose.” 25 U.S.C.

§ 1326.

STATEMENT OF THE CASE

Tribal Sovereignty

“Indian tribes are ‘domestic dependent nations’

that exercise ‘inherent sovereign authority’” subject to

“plenary and exclusive” control by Congress. Michigan

v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014)

(quoting Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991)). As

dependent nations, Tribes generally enjoy the “right of

internal self-government” including “the right to prescribe laws applicable to tribe members and to enforce

those laws by criminal sanctions.” United States v.

Wheeler, 435 U.S. 313, 322 (1978).

This Court has articulated two ways in which

tribal sovereignty limits federal and state court jurisdiction. First, since “tribal courts are important mechanisms for protecting significant tribal interests,”

Wheeler, 435 U.S. at 332, federal courts should abstain

from deciding certain claims against Tribes until

tribal remedies have been exhausted. This Court first

articulated this “tribal exhaustion” doctrine in National Farmers Union Insurance Companies v. Crow

Tribe of Indians, 471 U.S. 845 (1985). There, a tribal

member obtained a default judgment in tribal court

for injuries sustained in an accident on the school

property within reservation boundaries. Id. at 847.

Rather than appealing, the school district and its insurer sued in federal court to enjoin further tribal proceedings. Id. at 848.

The Court held that the “question whether a tribal

court has the power to exercise civil subject-matter jurisdiction over non-Indians” “should be conducted in

the first instance in the Tribal Court itself.” Id. at 855–

56. The Court emphasized Congress’s “policy of supporting tribal self-government and self-determination,”

which “favors a rule that will provide the forum whose

jurisdiction is being challenged the first opportunity to

evaluate the factual and legal bases for the challenge.”

Id. at 856. The Court pointed to additional prudential

considerations. Exhaustion would promote “the orderly administration of justice in the federal court” because a tribal court could develop a “full record * * *

before either the merits or any question concerning appropriate relief is addressed” and “rectify any errors it

may have made.” Id. at 856–57. And the rule would

“encourage tribal courts to explain to the parties the

precise basis for accepting jurisdiction,” which would

“provide other courts with the benefit of their expertise in such matters in the event of further judicial review.” Id. at 857. The Court thus concluded that

“[e]xhaustion of tribal court remedies” was a prerequisite to the suit. Id.

The Court addressed tribal exhaustion again in

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9

(1987). After losing in tribal court, an insurer sued in

federal court seeking a declaration that it had no duty

to defend or indemnify its insured for an accident on

the reservation. Id. at 12–13. The Court clarified that

exhaustion was required “[i]n diversity cases, as well

as federal-question cases” because “unconditional access to the federal forum would place it in direct competition with the tribal courts, thereby impairing the

latter’s authority over reservation affairs.” Id. at 16.

The Court further held that “exhaustion of tribal remedies means that tribal appellate courts must have the

opportunity to review.” Id. at 17.

This Court has since recognized limits on the tribal

exhaustion doctrine, including where: (1) “an assertion of tribal jurisdiction is motivated by a desire to

harass or is conducted in bad faith”; (2) “the action is

patently violative of express jurisdictional prohibitions”; (3) “exhaustion would be futile because of the

lack of an adequate opportunity to challenge the

court’s jurisdiction”; or (4) “the exhaustion requirement would serve no purpose other than delay.” Hicks,

533 U.S. at 369 (quotation omitted).

Second, tribal sovereignty limits federal and state

court jurisdiction because Tribes enjoy the “commonlaw immunity from suit traditionally enjoyed by sovereign powers.” Bay Mills Indian Cmty., 572 U.S. at

788 (quoting Santa Clara Pueblo v. Martinez, 436 U.S.

49, 58 (1978)). Suits against tribal members in state

court involving on-reservation conduct are thus generally barred by tribal sovereign immunity. Williams v.

Lee, 358 U.S. 217, 223 (1959). But as this Court has

long recognized, a Tribe may be “subject to suit * * *

where Congress has authorized the suit or the tribe

has waived its immunity.” C & L Enterprises, Inc. v.

Citizen Band Potawatomi Indian Tribe of Okla., 532

U.S. 411, 416 (2001) (quoting Kiowa Tribe of Okla. v.

Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)).2

This Court has also held that a Tribe may contractually waive immunity and submit to state court jurisdiction if its waiver is “clear.” C & L Enterprises, 532

U.S. at 418. In C & L Enterprises, the Court held that

a Tribe had waived sovereign immunity and consented

to state court jurisdiction when it agreed to a contract

containing arbitration and choice-of-law provisions. Id.

at 423. The Court explained that the arbitration provision “require[d] resolution of all contract-related disputes between the parties by binding arbitration” and

specified that the American Arbitration Association

rules would govern. Id. at 419. Those rules, and the

arbitration provision itself, provided that a judgment

upon the award “may be entered * * * in accordance

with applicable law in any court having jurisdiction

thereof.” Id. The contract’s choice-of-law provision

stated that the contract was “governed by the law of

the place where the Project [wa]s located,” which was

Oklahoma. Id. And Oklahoma gave its courts jurisdiction to enforce arbitration awards. Id. at 419–420. On

these facts, the Court was “satisfied” that the Tribe

had “waived, with the requisite clarity, immunity from

the suit C & L brought [in state court] to enforce its

arbitration award.” Id. at 418.

2 See also Bay Mills Indian Cmty., 572 U.S. at 789 (“[W]e

have time and again treated the doctrine of tribal immunity as

settled law and dismissed any suit against a tribe absent congressional authorization (or a waiver).”) (cleaned up).

Becker’s Contract with the Tribe

In 2001, the Tribe adopted a new approach to managing its natural resources. By referendum, the Tribe

decided to transform its “management of the Tribe’s

assets, revenues and expenses from a passive to an active management methodology, targeting * * * optimal use and deployment of its resources to increase

and diversify revenues for the benefit of the Tribe and

the Membership.” App.55, 175.

Petitioner Lynn Becker would play an important

role in that transformation. Becker owns a natural resources development firm based in Colorado. In the

early 2000s, he started helping the Tribe develop its

reserves, including by creating databases and mapping systems. App.56. In 2004, the Tribe’s Business

Committee voted unanimously to hire Becker to manage the Tribe’s Energy and Minerals Department. Id.

In April 2005, the Business Committee unanimously adopted Resolution 05-147 to formalize the

Tribe’s relationship with Becker. Id. The resolution attached a copy of Becker’s Independent Contractor

Agreement (“Agreement”); it further stated that

“Becker should be engaged pursuant to the terms and

conditions of the * * * Agreement” and that the “Business Committee hereby agrees to enter into the * * *

Agreement.” App.61.

The Agreement described Becker as a “Contractor

* * * serving as Land Division Manager of the Energy

and Minerals Department” and listed his duties as including implementation of the “restructuring and de-

velopment of the Tribal Energy and Minerals Department as set forth in Tribal Ordinance 03.003.” App.56,

140. In exchange for his services, Becker would “receive a beneficial interest of two percent (2%) of net

revenue distributed to Ute Energy Holding, LLC from

Ute Energy, LLC (and net of any administrative costs

of Ute Energy Holdings) (‘Contractor’s Interest’).”

App.57. Becker would also receive a 2% interest in certain other “projects involving the development, exploration and/or exploitation of minerals in which the

Tribe has any participating interest and/or earning

rights, or similar commercial interests.” App.58.

The Agreement also contains several provisions

making clear that disputes would be resolved in federal or state court, rather than in tribal court.

First, the Tribe waived sovereign immunity for disputes arising from the Agreement:

If any Legal Proceeding * * * should arise between the Parties hereto, the Tribe agrees to a

limited waiver of the defense of sovereign immunity * * * in order that such legal proceeding

be heard and decided in accordance with the

terms of this Agreement. For purposes of this

Agreement, a “Legal Proceeding” means any judicial, administrative, or arbitration proceeding conducted pursuant to this Agreement and

relating to the interpretation, breach, or enforcement of this Agreement.

* * * The Tribe specifically surrenders its sovereign power to the limited extent necessary to

permit the full determination of questions of

fact and law and the award of appropriate remedies in any Legal Proceeding.

App.59-60.3

Second, the Tribe waived tribal exhaustion and

agreed to submit to any court of competent jurisdiction:

The Parties hereto unequivocally submit to the

jurisdiction of the following courts: (i) U.S. District Court for the District of Utah, and appellate courts therefrom, and (ii) if, and only if,

such courts also lack jurisdiction over such case,

to any court of competent jurisdiction and associated appellate courts or courts with jurisdiction to review actions of such courts. The court

or courts so designated shall have, to the extent

the Parties can so provide, original and exclusive jurisdiction, concerning all such Legal Proceedings, and the Tribe waives any requirement

of Tribal law stating that Tribal courts have exclusive original jurisdiction over all matters involving the Tribe and waives any requirement

that such Legal Proceedings be brought in

Tribal Court or that Tribal remedies be exhausted.

App.60 (emphasis added).

3 The Tribe’s waiver of sovereign immunity further “extend[ed] to any arbitration and all review and enforcement of any

decision or award of the panel so convened in the court or courts

so designated.” App.61.

Third, the parties agreed that Utah law would govern and reiterated their choice of a nontribal forum:

“This Agreement and all disputes arising hereunder

shall be subject to, governed by and construed in accordance with the laws of the State of Utah. All disputes arising under or relating to this Agreement shall

be resolved in the United States District Court for the

District of Utah.” App.59.

On the same day that the Agreement was executed,

all six members of the Tribe’s Business Committee

signed Resolution 05-147, which declared that the

“Business Committee hereby agrees to enter into the

* * * Agreement.” App.61. Becker worked on oil and

natural gas exploration projects for the Tribe for another two-and-a-half years, until he resigned under

the terms of the Agreement on October 31, 2007. Id.

Proceedings Below

In February 2013, Becker sued the Tribe in federal

district court in Utah alleging that the Tribe had not

paid all he was owed under the Agreement. Notwithstanding the clarity of the Agreement, the litigation

would continue for nearly a decade; span actions in

federal, state, and tribal court; and yield several published Tenth Circuit opinions.

Becker’s first federal suit alleged breach of contract

and related claims but was dismissed for lack of federal question jurisdiction. See Becker v. Ute Indian

Tribe of the Uintah & Ouray Rsrv., 770 F.3d 944

(CA10 2014) (“Becker I”).

In December 2014, Becker sued the Tribe in Utah

state court. App.62. The Tribe moved to dismiss and

asserted sovereign immunity. Although the Tribe conceded that its Business Committee passed a resolution

adopting the Agreement, the Tribe argued that the

sovereign immunity waiver had not been properly ratified. App.62-63. The Utah trial court denied the

Tribe’s motion to dismiss, and the Utah Court of Appeals dismissed the Tribe’s appeal for lack of a final,

appealable order. App.63.

After discovery in state court, the Tribe moved for

summary judgment, arguing that the court lacked jurisdiction, that Becker’s action was preempted by federal law, and that the action infringed on the Tribe’s

sovereignty. Id. The court denied the motion. Id. The

Utah Court of Appeals and the Utah Supreme Court

both summarily denied review. App.64. The Utah district court scheduled a trial date but that was later

stayed pending the federal suits at issue here. Id.

In June 2016, a year-and-a-half after Becker sued

in state court, the Tribe filed a federal action to enjoin

the state action. The Tribe named both Becker and the

Utah judge presiding over Becker’s case; it sought a

declaratory judgment that the Utah courts lack jurisdiction, the Agreement was void under federal and

tribal law, and the Tribe did not waive sovereign immunity. App.5; Ute Indian Tribe v. Lawrence, 875 F.3d

539, 541 (CA10 2017).

Then, in August 2016, three-and-a-half years after

the litigation began, the Tribe initiated an action in its

own tribal court. App.64. The Tribe sought declara-

tions that the Agreement was void ab initio under federal and tribal law, and that the Tribe’s contractual

waiver of sovereign immunity was not validly executed under tribal law. App.64-65.

Becker filed a fresh federal suit in September 2016

to enjoin the tribal court action and enforce the plain

terms of the Agreement. App.65. The Tribe counterclaimed and moved to dismiss. App.66. The district

court granted Becker’s request for a preliminary injunction against the tribal court proceedings and dismissed the Tribe’s counterclaims. Id. The court held

that the Tribe clearly waived tribal exhaustion and

that sending Becker to tribal court “would serve no

purpose other than delay.”4 Id. On appeal, the Tenth

Circuit affirmed in part and reversed in part, vacating

the preliminary injunction. Becker v. Ute Indian Tribe

of the Uintah & Ouray Reservation, 868 F.3d 1199,

1201 (CA10 2017) (“Becker II”).

On remand, Becker again sought an injunction

against the tribal court proceedings, citing intervening rulings in state court, and the Tribe moved for

summary judgment and its own injunctive relief.

App.68. In February 2018, the district court denied

both parties’ requests for injunctive relief and held

that the tribal court should “address in the first instance whether it has jurisdiction to hear the dispute.”

4 Accord Strate v. A-1 Contractors, 520 U.S. 438,

459 n.14

(1997) (explaining that tribal exhaustion “must give way” if “it

would serve no purpose other than delay” because the tribal court

would lack authority to resolve the case); Hicks, 533 U.S. at 369

(same).

App.69. The court ordered the parties to report the ultimate resolution in tribal court (including any appeal).

Id.

The district court then issued final decisions in

both pending federal cases on April 30, 2018: In the

Tribe’s suit to enjoin state court proceedings, the court

issued an 83-page opinion denying injunctive relief

against the state court action. App.83. Incorporating

that opinion by reference in Becker’s suit to enjoin

tribal court proceedings, the district court sua sponte

issued an order holding that the Tribe’s contractual

waiver of exhaustion was “substantially likely to be

valid under both federal and tribal law” and granting

Becker a preliminary injunction against tribal court

proceedings. App.80-81.

The district court made three critical determinations:

First, the Utah courts had jurisdiction based on the

Tribe’s consent. The court acknowledged that it would

take a special election to “permanently authorize the

state to assume global [civil or criminal] jurisdiction over

a tribe” under 25 U.S.C. §§ 1322(a), 1326.5 App.108. But

those procedures for assuming general civil jurisdiction

5 Congress has authorized “any State not having jurisdiction

over civil causes of action between Indians or to which Indians

are parties which arise in the areas of Indian country situated

within such State to assume” such jurisdiction “with the consent

of the tribe occupying the particular Indian country or part

thereof which would be affected by such assumption.” 25 U.S.C.

§ 1322(a). A tribe consents “by a majority vote of the adult Indians voting at a special election held for that purpose.” 25 U.S.C.

§ 1326.

do not “foreclose ‘selective tribal consent to state exercise

of jurisdiction.’” App.109. The court noted that, in C & L

Enterprises, this Court “held that a sufficiently clear

contractual waiver of tribal immunity, combined with a

state statute accepting jurisdiction over contracts involving arbitration, was sufficient for a state court to exercise civil jurisdiction,” even though Oklahoma had

“never accepted general civil jurisdiction over Indians”

under Section 1322(a). App.112-13. Since Utah law accepts jurisdiction over Indians subject to consent6 and

the Tribe had consented to state court jurisdiction by

contract, the court held that the Utah courts could exercise jurisdiction. App.104-118.

Second, the court rejected the Tribe’s challenges to

the Agreement. The court held that Becker’s 2% interest was not a transfer of federal trust property requiring approval of the Secretary of the Interior based on

an exhaustive examination of the Tribe’s operating

agreements, resolutions, and the Agreement. App.

148-72. The court further rejected the argument that

the Agreement was invalid under tribal law, since

tribal ordinances, decisions, and patterns of practice

all confirmed that the Business Committee validly approved the Agreement’s waivers by passing Resolution

05-147, which expressly incorporated the Agreement.

App.173-97.

6 See Utah Code Ann. § 9-9-201 (“The state of Utah hereby

obligates and binds itself to assume criminal and civil jurisdiction

over Indians and Indian territory, country, and lands or any portion thereof within this state in accordance with [§ 1322(a)], to

the extent authorized by that act and this chapter.”) (footnote

omitted).

Third, and finally, given its other findings, the district court concluded that the Tribe validly waived

tribal exhaustion. App.197-200.

The Tribe appealed both district court rulings, resulting in the two Tenth Circuit decisions challenged

here: Becker III and Becker IV.

In Becker III, arising from Becker’s suit to enjoin

tribal proceedings, the Tenth Circuit required exhaustion of tribal remedies. App.54. The court held that,

out of “respect for tribal self-government and self-determination,” federal courts must defer to tribal courts

on “the questions the Tribe has raised regarding the

validity of the Agreement, as well as the threshold

question of whether the Tribal Court has jurisdiction

over the parties’ dispute.” App.72. The court was “not

persuaded * * * that any of the narrow exceptions to

the tribal exhaustion rule apply here.” Id. The court

held that the Agreement’s express waiver was irrelevant because “the Tribe [had] asserted nonfrivolous

challenges” to its validity. App.73.

In Becker IV, which arose from the Tribe’s suit to

enjoin state proceedings, the Tenth Circuit held that

the Utah courts lacked jurisdiction. App.3. The court

held that federal law, not the Agreement, controlled

the issue of tribal consent. The court thus considered

(1) whether Becker’s claims fell within the Tribe’s civil

jurisdiction; and (2) if so, whether Congress had authorized state court jurisdiction. App.8-10.

After determining that Becker’s claims arose on

the reservation, the court concluded that Utah courts

lacked jurisdiction because Utah had not validly assumed general civil jurisdiction under §§ 1322(a) and

1326. The court pointed to language in Section 1326

providing that “[s]tate jurisdiction acquired pursuant

to this subchapter * * * shall be applicable in Indian

country only where the enrolled Indians within the affected area * * * accept such jurisdiction’ by holding a

special election.” App.19-20 (quoting § 1326) (emphasis in original). The court reasoned that “[t]he use of

the limiting term ‘only’ conveys that a special election

is a necessary event that must occur before a state

court may assert § 1322 jurisdiction.” App.20. Noting

no evidence “that the Tribe ever held a special election

accepting Utah’s assumption of § 1322 jurisdiction,”

the court held that Utah state courts lacked jurisdiction. App.18-19.

The Tenth Circuit distinguished C & L Enterprises

as a case “concern[ing] issues of sovereign immunity,”

rather than subject-matter jurisdiction. App.24. Thus,

“even if the Agreement waives tribal sovereign immunity, that waiver does not resolve whether the

Utah state court has subject-matter jurisdiction over

Becker’s case.” App.25. The court reiterated that the

question of whether Utah courts had jurisdiction “depends instead on whether the requirements of § 1322

and § 1326 are met.” Id.

Judge Briscoe dissented. She faulted the majority

for “mak[ing] no mention of” the Agreement’s reference to state court litigation, especially when “the only

reasonable inference that can be drawn from reading

the contractual language is that the parties intended

for any disputes to be heard in the Utah state courts”

if a federal forum were unavailable. App.45.

Judge Briscoe also explained that the majority

erred because § 1322 “addresses only suits involving

individual Indians, not Tribes.” App.46. Thus, “§ 1322

simply does not address * * * the jurisdictional issue

that this case actually poses, i.e., whether a Tribe, by

way of a written agreement with a non-Indian, may

selectively agree to subject itself to state court jurisdiction and state law for disputes arising out of the

agreement.” Id. Judge Briscoe would have let the Utah

courts address that question in the first instance, but

emphasized the federal interest in “promoting Indian

self-governance and autonomy.” App.48 (quoting

Three Affiliated Tribes of Fort Berthold Reservation v.

Wold Eng’g, 476 U.S. 877, 884 (1986) (“Three Affiliated

Tribes I”). Under that rubric, she “‘fail[ed] to see how

the exercise of state-court jurisdiction’ over Becker’s

claims against the Tribe “interfere[d] with the right of”

the Tribe ‘to govern [itself] under [its] own laws.’”

App.48 (quoting Three Affiliated Tribes of Fort

Berthold Rsrv. v. Wold Eng’g, P.C., 467 U.S. 138, 148

(1984) (“Three Affiliated Tribes II”) (last two alterations in original).

In short, Judge Briscoe believed that “the majority’s holding [was] directly contrary to the principles

of Indian autonomy and self-governance because it

prohibit[ed] a Tribe from affirmatively choosing, in the

context of a commercial contract with a non-Indian, to

subject itself to state jurisdiction and state law for disputes arising out of the contract.” App.48.

REASONS FOR GRANTING THE PETITION

This case presents an excellent vehicle to resolve

two important questions that have divided the Courts

of Appeals, and the Court should grant review to do so.

The Courts of Appeals Are Divided on Two

Important Questions Involving Contractual Disputes with Tribes.

This petition presents two cert-worthy issues on

which the lower courts are divided: First, the Tenth

Circuit has deepened a recognized split, now 3-2, on

the question whether tribal exhaustion applies when

a Tribe contractually waives it and consents to suit in

a nontribal court. The Tenth Circuit has also created

a split with the Eighth Circuit and several state courts

on the question whether a state court may exercise jurisdiction over a contract dispute with a non-Indian

where the Tribe has consented by contract to statecourt jurisdiction.

The Tenth Circuit’s Decision in Becker

III Deepens a Recognized Split over the

Application of the Tribal Exhaustion

Doctrine to Contracts that Select a

Nontribal Forum.

The Courts of Appeals have acknowledged that

“[t]here is a difference of opinion * * * as to whether

contractual forum-selection clauses escape application

of the [tribal exhaustion] doctrine.” Ninigret Dev. Corp.

v. Narragansett Indian Wetuomuck Hous. Auth., 207

F.3d 21, 33 (CA1 2000); see also Bank One, N.A. v.

Shumake, 281 F.3d 507, 515 n.32 (CA5 2002)

(describing the split without taking a position). With

the Tenth Circuit’s decision below, the circuits are now

squarely divided 3-to-2 on that question.

The Tenth Circuit required Becker to exhaust

tribal remedies notwithstanding that “the Agreement

expressly purported to waive the Tribe’s sovereign

immunity and to have all disputes settled in a nonIndian court by way of Utah state law.” Becker III, 11

F.4th at 1149–50. The Tribe also expressly waived

tribal exhaustion. The court refused to enforce those

unambiguous provisions “[o]ut of respect for tribal

self-government and self-determination,” concluding

that “the threshold question of whether the Tribal

Court has jurisdiction” should “be resolved in the first

instance by the Tribal Court itself.” Id. at 1150.

The Second Circuit likewise rejects contractual

exceptions to the tribal exhaustion doctrine. In Basil

Cook Enterprises, Inc. v. St. Regis Mohawk Tribe, 117

F.3d 61 (CA2 1997), a tribe contracted with a nontribal

corporation to operate a gaming establishment on its

reservation. The parties’ agreement waived the tribe’s

sovereign immunity and provided for disputes to be

settled by arbitration. Id. at 63. When a dispute arose,

a district court denied the corporation’s motion to

compel arbitration, and the Second Circuit affirmed.

The court noted that, absent one of the narrow

exceptions articulated in National Farmers and

LaPlante, tribal exhaustion was required. Id. at 66.

Notwithstanding the tribe’s waiver of sovereign

immunity and arbitration provision, the Second Circuit

concluded that the corporation could not establish one

of those narrow exceptions and thus had to exhaust

tribal remedies. Id. at 65–68.

The First Circuit takes a consistent approach. In

Ninigret, that court considered whether a nontribal

construction company was excused from exhaustion

based on a contractual arbitration provision. The

contract provided that—instead of bringing disputes

in tribal court—any dispute “shall be first presented

to the Tribal Council for resolution” and, if there were

no resolution, “the Tribal Court * * * [would] appoint

an Arbitration Board.” 207 F.3d at 30. Any arbitration

award would then be “enforceable under prevailing

arbitration law.” Id. The First Circuit refused to

enforce contractual modifications to the tribal

exhaustion doctrine. It began by acknowledging the

split of authority on “whether contractual forumselection clauses escape application of the doctrine.” Id.

at 33. Although the court admitted that “the question

is close,” it reasoned that National Farmers dictated

that “the determination of the existence and extent of

tribal court jurisdiction must be made with reference

to federal law, not with reference to forum-selection

provisions that may be contained within the four

corners of an underlying contract.” Id.

But the Seventh and Eighth Circuits take the

opposite approach, holding that tribal exhaustion is

not required where a contract provides for a different

method of dispute resolution.

In Altheimer & Gray, the Seventh Circuit held that

a nontribal manufacturing company did not need to

exhaust tribal remedies because the tribe had waived

sovereign immunity and consented to federal and

state jurisdiction. 983 F.2d at 814–15. The tribe

expressly agreed to “waive all sovereign immunity in

regards to all contractual disputes,” that the contract

was “executed and interpreted in accordance with the

laws of the State of Illinois,” and that all parties “agree

to submit to the venue and jurisdiction of the federal

and state courts located in the State of Illinois.” Id. at

807. The court held that compelling exhaustion would

not further comity with tribal courts because “the

tribal entity wished to avoid characterization of the

contract as a reservation affair by actively seeking the

federal forum.” Id. at 815. It added: “If contracting

parties cannot trust the validity of choice of law and

venue provisions, [the tribal entity] may well find

itself unable to compete and the Tribe’s efforts to

improve the reservation’s economy may come to

naught.” Id.

And in Stifel, Nicolaus & Co. v. Lac du Flambeau

Band of Lake Superior Chippewa Indians, 807 F.3d

184 (CA7 2015), the Seventh Circuit reaffirmed its

position, even in the face of a challenge to the validity

of a contract. There, the tribe obtained bond

instruments from a nontribal brokerage to finance a

casino development. Id. at 189. Several instruments

contained waivers of sovereign immunity and

provided for disputes to be resolved under Wisconsin

law in either federal or state court. Id. The tribe tried

to distinguish Altheimer by raising “significant issues

of tribal law” and seeking to void the instruments

“under tribal law, [federal law], and the tribal

constitution.” Id. at 197. The Seventh Circuit flatly

rejected that effort. It held that “the presence of a

forum selection clause is dispositive of the exhaustion

issue: ‘To refuse enforcement of this routine contract

provision would be to undercut the Tribe’s selfgovernment and self-determination.’” Id. at 196

(quoting Altheimer, 983 F.2d at 815). It also explained

that a general challenge to contract’s validity could not

negate the forum-selection clause; the tribe would

need to prove that the forum-selection clause itself

was invalid. Id. at 198–99

The Eighth Circuit similarly held that a tribe could

not compel exhaustion where its contract provided

that, “[i]n the event there is any dispute between the

parties arising out of this agreement, it shall be

determined in the Oglala Sioux Tribal Court or other

court of competent jurisdiction.” FGS Constructors,

Inc. v. Carlow, 64 F.3d 1230, 1233 (CA8 1995). The

court construed the phrase “other court of competent

jurisdiction” to include federal courts in South Dakota.

Id. It held that “[n]o provision in the agreement gave

these defendants the right to override a plaintiff’s

choice of forum * * * . Since [the tribe] agreed to be

sued in the federal district court of South Dakota,

[they] are not privileged to force the dispute into the

tribal court.” Id.; see also Enerplus Res. (USA) Corp. v.

Wilkinson, 865 F.3d 1094, 1097 (CA8 2017) (“The

tribal exhaustion doctrine does not apply when the

contracting parties have included a forum selection

clause in their agreement.”). That contract

contemplated suit in tribal court, but the court still

held that it foreclosed requiring exhaustion.

The circuits are squarely divided on whether a

nontribal party must exhaust tribal remedies when a

tribe agrees by contract to submit to a nontribal forum.

All circuits agree that respect for tribal sovereignty is

paramount. But they have reached irreconcilable

conclusions about what that means when a tribe

waives immunity and consents to nontribal

jurisdiction. The Court should grant certiorari to

resolve this established conflict.

Becker IV Created a Split on Whether

Contractual Consent Suffices for State

Court Jurisdiction over a Contractual

Dispute with a Tribe.

The Tenth Circuit’s decision in Becker IV created a

split with the Eighth Circuit and several state courts

over a tribe’s ability to consent to state court

jurisdiction over a contractual dispute and conflicts

with this Court’s decision in C & L Enterprises.

Tribal sovereign immunity generally bars state

courts from adjudicating claims against Tribes arising

from on-reservations conduct, see Williams, 358 U.S.

at 223, but not when “Congress has authorized the suit

or the tribe has waived its immunity,” C & L

Enterprises, 532 U.S. at 416 (quoting Kiowa, 523 U.S.

at 754).

A tribe may waive sovereign immunity and submit

to state court jurisdiction. In C & L Enterprises, this

Court held that the tribe waived immunity when it

entered a contract with arbitration and choice-of-law

provisions. 532 U.S. at 415. The arbitration clause

provided that “[a]ll claims or disputes * * * arising out

of or relating to the Contract * * * shall be decided by

arbitration in accordance with the” rules of the

American Arbitration Association and that the “award

rendered by the arbitrator or arbitrators shall be final,

and judgment may be entered upon it in accordance

with applicable law in any court having jurisdiction

thereof.” Id. A choice-of-law provision stated that the

“contract shall be governed by the law of the place

where the Project is located.” Id. The Court concluded

that the tribe had clearly waived immunity and that

the “choice-of-law clause makes it plain enough that a

‘court having jurisdiction’ to enforce the award in

question is the Oklahoma state court in which C & L

filed suit.” Id. at 418–19. Oklahoma had never

assumed general jurisdiction over the tribe under 25

U.S.C. § 1322(a).

Faithfully applying C & L Enterprises, the Eighth

Circuit held that a tribe is bound by its contractual

agreement to submit to state court jurisdiction. In

Oglala Sioux Tribe v. C & W Enterprises, Inc., 542

F.3d 224 (CA8 2008), a construction company signed

four contracts with a tribe to build roads on the

reservation. Three contracts expressly provided for

arbitration and stated that, in the event a federal

court lacked jurisdiction, “the award rendered by the

arbitrator shall be final, and judgment may be entered

upon it in accordance with the applicable law in any

court having jurisdiction thereof.” Id. at 226. After

arbitration, the parties filed separate actions: the

contractor in South Dakota state court to affirm the

award, the tribe in federal court to enjoin the award.

Id. at 228.

The Eighth Circuit refused to enjoin the state court

action. It determined that the tribe waived sovereign

immunity by agreeing to arbitration in three contracts

and by participating in the arbitration and failing to

raise a sovereign immunity defense as to all four. Id.

at 230–31. The court held that South Dakota courts

had jurisdiction because the contracts incorporated

the American Arbitration Association’s rules, which

provided that “[p]arties to these rules shall be deemed

to have consented that judgment upon the arbitration

award may be entered in any federal or state court

having jurisdiction thereof.” Id. at 232. The Eighth

Circuit reasoned that, “[w]hen it agreed to arbitrate

disputes and incorporated the AAA’s claim resolution

procedures into the contracts, and when it

participated in the South Dakota arbitration, the

Tribe acquiesced in the arbitrator’s decision, placing

jurisdiction over the award in South Dakota’s courts.”7

Id.

The Eighth Circuit’s decision harmonizes with

state court decisions addressing the same question.

For example, the Supreme Court of Washington

expressly noted that the state had not assumed

jurisdiction under § 1322(a) but nonetheless held that

its state courts could exercise jurisdiction over a

contractual dispute between a tribe and a non-Indian

company because the tribe contractually consented to

that arrangement. Outsource Servs. Mgmt., LLC v.

Nooksack Bus. Corp., 333 P.3d 380, 382–383 & n.2

(Wash. 2014) (en banc). Other state courts have

reached the same outcome. See, e.g., Meyer & Assocs.,

Inc. v. Coushatta Tribe of Louisiana, 992 So. 2d 446,

7 C & L Enterprises involved Oklahoma courts, which had not

assumed jurisdiction under § 1322(a). See Okla. Tax Comm’n v.

Sac & Fox Nation, 508 U.S. 114, 125 (1993) (“Oklahoma did not

assume jurisdiction pursuant to [§ 1322(a)].”); Sheffer v. Buffalo

Run Casino, PTE, Inc., 315 P.3d 359, 366 (Ok. 2013) (same). Similarly, the South Dakota courts at issue in C & W Enterprises had

not assumed jurisdiction under § 1322(a). See Sage v. Sicangu

Oyate Ho, Inc., 473 N.W.2d 480, 482 (S.D. 1991).

450 (La. 2008); Bradley v. Crow Tribe of Indians, 67

P.3d 306, 311–12 (Mont. 2003).

The Tenth Circuit’s decision below in Becker IV

stands in stark contrast. Over Judge Briscoe’s dissent,

the court focused on whether the Tribe had consented

the Utah state courts’ exercise of general jurisdiction

over the Tribe. 22 F.4th at 903–07. It held that,

because Petitioner’s claims arose on the Tribe’s

reservation and the Utah courts never assumed

general civil jurisdiction under 25 U.S.C. § 1322(a),

the Utah state courts lacked jurisdiction to adjudicate

the dispute. Id. at 907. The court treated §§ 1322(a)

and 1326 as exclusive means through which a state

court could obtain jurisdiction over a Tribe’s

contractual dispute. While the court recognized that

its approach was inconsistent with this Court’s

decisions in C & L Enterprises, it purported to

distinguish that decision as “concern[ing] issues of

sovereign immunity,” and “not resolv[ing] whether the

Utah state court has subject-matter jurisdiction over

[Petitioner’s] case,” id. at 906—even though the

Oklahoma courts would have lacked jurisdiction in C

& L Enterprises under the majority’s theory.

Judge Briscoe, dissenting, would have taken the

same approach as the Eighth Circuit. She emphasized

“the only reasonable inference that can be drawn from

reading the contractual language”—namely, “that the

parties intended for any disputes to be heard in the

Utah state courts” if federal jurisdiction were lacking.

Id. at 915. The majority’s reliance on § 1322(a) was

further wrong because the statute “addresses only

suits involving individual Indians, not Tribes.” Id.

“[Section] 1322 simply does not address * * * the

jurisdictional issue that this case actually poses, i.e.,

whether a Tribe, by way of a written agreement with

a non-Indian, may selectively agree to subject itself to

state court jurisdiction and state law for disputes

arising out of the agreement.” Id. Judge Briscoe

believed that “the majority’s holding [was] directly

contrary to the principles of Indian autonomy and selfgovernance.” Id. at 916.

The split here is as stark as can be. The Eighth

Circuit has held, consistent with this Court’s

precedent, that a Tribe may consent to state court

jurisdiction in a particular case, and state courts have

taken the same approach. The Tenth Circuit held

below that consent must come through the special

election procedures of 25 U.S.C. § 1326. The Court

should grant review to resolve this issue too.

II.

The Court Should Grant Review to Resolve Irreconcilable Conflicts Among the

Lower Courts.

Beyond the conflicts, there are several reasons why

the Court should grant certiorari in these cases and

provide clear guidance on when a Tribe is bound to

honor its contractual commitments to resolve disputes

in a nontribal forum.

First, the issues are recurring. Tribal exhaustion

has been, and will continue to be, litigated extensively.

Since this Court announced the doctrine in National

Farmers and LaPlante, it has addressed its scope only

twice and not once in the last 20 years. See El Paso

Nat. Gas Co. v. Neztsosie, 526 U.S. 473 (1999); Hicks,

533 U.S. 353. But that scarcity of instruction hardly

demonstrates that questions are rare. In the past few

Terms alone, this Court has been asked to decide:

whether tribal exhaustion applies to state courts, see

Petition for a Writ of Certiorari, Harvey v. Ute Indian

Tribe of Uintah and Ouray Reservation, 2018 WL

1327120 (Mar. 7, 2018); whether tribal exhaustion is

required when there is no pending tribal proceeding,

see id.; and whether a non-Indian is required to

exhaust when she agreed to do so by contract but

never physically entered the reservation, see Petition

for a Writ of Certiorari, Western Sky Financial v.

Jackson, 2015 WL 678189 (Feb. 13, 2015). And that is

just scratching the surface. Over 20 years ago, the

First Circuit acknowledged a split on the question, see

Ninigret Dev. Corp., 207 F.3d at 33, which has only

gotten worse.

Whether a tribe may contractually consent to state

court jurisdiction also arises frequently. This Court

decided one such case in C & L Enterprises, concluding

that an arbitration agreement waived the tribe’s

immunity and allowed enforcement in state court. But

that case is hardly an outlier. Federal and state courts,

both before and since, have grappled with the question

whether a tribe agreed by contract to submit to state

court jurisdiction. See, e.g., Altheimer, 983 F.2d at 815;

Stifel, Nicolaus & Co., 807 F.3d at 198; C & W

Enterprises, 542 F.3d at 231–33; Becker IV, 22 F.4th

at 907; Campo Band of Mission Indians v. Superior Ct.,

137 Cal. App. 4th 175, 185 (2006); Meyer & Assocs.,

992 So. 2d at 450; Outsource Servs. Mgmt., 333 P.3d at

381–82.

Second, the questions are exceptionally important.

Sovereign immunity waivers and forum-selection

clauses are ubiquitous in contracts between tribes and

non-Indians. This petition cites many examples, but

federal and state courts routinely encounter cases

involving contractual disputes between non-Indians

and tribes. Those provisions have “real world

objective[s]” and “consequences.” C & L Enterprises,

532 U.S. at 422. Courts interpret contracts “with a

view to effecting the objects and purposes of the

[parties] thereby contracting.” Rocca v. Thompson,

223 U.S. 317, 331–32 (1912); cf. AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 351 (2011). But if courts

frustrate expectations about forum and jurisdiction to

resolve contractual disputes, tribal economies suffer

the deleterious effects. See, e.g., Altheimer, 983 F.2d at

815 (“If contracting parties cannot trust the validity of

choice of law and venue provisions, [the tribal entity]

may well find itself unable to compete and the Tribe’s

efforts to improve the reservation’s economy may come

to naught.”). Compelled exhaustion also implicates the

due process rights of the non-consenting, non-Indian

party who is forced to litigate “in an unfamiliar court.”

Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997).

These issues also affect vast sectors of tribal commerce.

In 2017, the Department of Agriculture estimated that

tribes sold $3.5 billion in agricultural products.8 Natural

resource development on reservations accounted for over

8 See U.S. Dep’t of Agric., American Indian/Alaska Native

Producers (2017), https://www.nass.usda.gov/Publications/Highlights/2019/2017Census_AmericanIndianAlaskaNative_Producers.pdf.

$1 billion in royalties and revenues in 2021.9 And Indian

gaming revenues were a staggering $27.8 billion in 2020.10

Uncertainty about the enforceability of waivers and

consents threatens to disrupt fruitful commerce between

non-Indians and tribes in these and many other areas.

Third, this case is an excellent vehicle. The waivers

and consents here are much clearer than in other similar

cases. The parties used a belt, suspenders, and safety pins

for good measure. Even as it declined to enforce the

Agreement, the Tenth Circuit acknowledged that “it [was]

undisputed that the Agreement expressly purported to

waive the Tribe’s sovereign immunity and to have all

disputes settled in a non-Indian court by way of Utah state

law.” Becker IV, 11 F.4th at 1149–50. This case raises pure

questions of law that were dispositive in foreclosing

Becker’s avenues for relief in federal or state court. And

the Court has reasoned lower court opinions that address

both sides of the issues.

Fourth, the decisions below undermine tribal

sovereignty and self-governance, which are the

cornerstones of the tribal exhaustion and immunity

doctrines. See Bay Mills Indian Cmty., 572 U.S. at 788.

The parties negotiated the Agreement at arms-length,

and the Agreement was drafted by the Tribe’s

9 See U.S. Dep’t of the Interior, Natural Resources Revenue

Data (filtered to show revenue data for FY 2021), https://revenuedata.doi.gov/query-data/?dataType=Revenue&landType=Native%20American.

10 See News Release, National Indian Gaming Commission

(Aug. 17, 2021), https://www.nigc.gov/news/detail/2020-indiangaming-revenues-of-27.8-billion-show-a-19.5-decrease

“experienced law firm that specializes in Indian law

and oil and gas law.” App.154 n.37. As Judge Briscoe

observed, the Tenth Circuit decision in Becker IV

“prohibits a Tribe from affirmatively choosing * * * to

subject itself to state jurisdiction and state law” and is

thus “contrary to the principles of Indian autonomy

and self-governance.” 22 F.4th at 916.

III.

The Decisions Below Are Wrong.

The Court should also grant review because the

Tenth Circuit erred.

Tribal Exhaustion Is Not Required.

The Tenth Circuit was wrong to hold that Becker

must exhaust tribal remedies. A tribe may waive its

immunity and submit to state court jurisdiction

provided the waiver is “clear.” C & L Enterprises, 532

U.S. at 418. And “a valid forum-selection clause

[should be] given controlling weight in all but the most

exceptional cases.” Atl. Marine Const. Co. v. U.S. Dist.

Ct. for W. Dist. of Texas, 571 U.S. 49, 63 (2013).

Nothing here justifies departure from the ordinary

rule that forum-selection clauses are controlling,

particularly not the prudential considerations this Court

has cited in support of tribal exhaustion. Congress’s

“policy of supporting tribal self-government and selfdetermination” does not favor exhaustion. National

Farmers, 471 U.S. at 856. If supporting tribal selfgovernment and self-determination means anything, it

means honoring the Tribe’s commitment to an armslength transaction, drafted by the Tribe’s attorneys,

whereby the Tribe agreed to litigate in a nontribal forum.

See Stifel, Nicolaus & Co., 807 F.3d at 196; Altheimer, 983

F.2d at 815.

Nor is “the orderly administration of justice”

served here “by allowing a full record to be developed

in the Tribal Court.” National Farmers, 471 U.S. at

856. The Tenth Circuit did not rely on that rationale,

and rightly so. There is no advantage to developing a

tribal court record where the Agreement contains a

clear waiver of sovereign immunity and tribal

exhaustion, as the Tenth Circuit acknowledged.

The final prudential concern—allowing tribal

courts to “provide other courts with the benefit of their

expertise,” id. at 857—does not change things. Tribal

courts have no special expertise in interpreting a

contract governed by state law that would compel

deference to their adjudication in the first instance.11

That a Tribe might raise “nonfrivolous challenges”

to the validity of a contract does not mandate litigation

in a tribal forum. This Court declined to address a

similar challenge in C & L Enterprises, while holding

that the tribe waived its immunity and consented to

Oklahoma state court jurisdiction. 532 U.S. at 423 n.6.

Moreover, a forum-selection clause “is understood not

merely as a contract provision, but as a distinct

contract in and of itself—that is, an agreement

11 The Court of Appeals further erred by ignoring uncontroverted record evidence establishing that the tribal court lacked

jurisdiction over Becker’s claims, see Exhibit A, No. 2:16-cv-00579,

Dkt. 105-1 (D. Utah), such that exhaustion “would serve no purpose other than delay.” Strate, 520 U.S. at 459 n.14; see also Hicks,

533 U.S. at 369.

between the parties to settle disputes in a particular

forum—that is separate from the obligations the

parties owe to each other under the remainder of the

contract.” Marra v. Papandreou, 216 F.3d 1119, 1123

(CADC 2000); accord Rent-A-Ctr., W., Inc. v. Jackson,

561 U.S. 63, 67 (2010).12

The Tenth Circuit was wrong to render the

Agreement’s waivers and consents illusory and to

force the dispute into tribal court.

The Utah Courts Have Jurisdiction.

The Tenth Circuit erred when it held that Utah

state courts lacked jurisdiction to adjudicate Becker’s

contract claims.

“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.” Kiowa, 523

U.S. at 754 (emphasis added). “[T]o relinquish its

immunity, a tribe’s waiver must be ‘clear.’” C & L

Enterprises, 532 U.S. at 418. The Tribe waived

immunity and consented to state court jurisdiction.

That should be the end of the matter.

The Tenth Circuit avoided that straightforward

conclusion by focusing whether the Tribe consented to

Utah’s exercising general civil jurisdiction under

§ 1322(a), rather than whether the Tribe consented to

12 See also Scherk v. Alberto–Culver Co., 417 U.S. 506, 519 n.

14 (1974) (explaining that a forum-selection clause within a contract alleged to be the product of fraud is enforceable as long as

the clause itself was not a result of fraud).

jurisdiction to Becker’s specific case. Utah state courts

have not assumed general civil jurisdiction over the

Tribe under § 1322(a), but that is irrelevant. The Tribe

waived immunity by contract and agreed to submit to

federal jurisdiction or, alternatively, state jurisdiction.

The Tenth Circuit held that “[w]aiving sovereign

immunity simply renders a party amenable to suit in

a court properly possessing jurisdiction; it does not

guarantee a forum.” Becker IV, 22 F.4th at 906. But

the Tribe’s contractual consent, separate from its

waiver of immunity, confirms that Utah state courts

have jurisdiction.

In C & L Enterprises, this Court enforced an

arbitration clause governed by the laws of Oklahoma

(where an award would be confirmed) even though

Oklahoma has never assumed jurisdiction under

§ 1322(a). See Okla. Tax Comm’n v. Sac & Fox Nation,

508 U.S. 114, 125 (1993) (“Oklahoma did not assume

jurisdiction pursuant to [§ 1322(a)].”); Sheffer v.

Buffalo Run Casino, PTE, Inc., 315 P.3d 359, 366 (Ok.

2013) (noting same). The Court was satisfied that the

tribe had consented to jurisdiction by agreeing to

arbitration and choice-of-law provisions and held that

Oklahoma courts could affirm the award.

Section 1322(a) provides one means for state courts

to acquire jurisdiction over one category of cases. But it

does not bar a Tribe from consenting to jurisdiction in a

specific case. Furthermore, as Judge Briscoe noted,

§ 1322(a) may not apply to tribal entities at all. The

statute says only that a State may assume jurisdiction

“over civil causes of action between Indians or to which

Indians are parties.” 25 U.S.C. § 1322(a) (emphasis

added).

Since § 1322(a) does not diminish a tribe’s ability

to consent to a nontribal forum in a specific dispute,

the Tenth Circuit should be reversed.

CONCLUSION

For these reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,