Opposition Brief — Missouri River Services, Inc. v. Omaha Tribe

= Supreme Court, US

FILED

‘

—

No. 01-1149 APR 8 2002

~ 4 i

te The CLERK |

Supreme Court of the United States

MISSOURI RIVER SERVICES, INC.,

Petitioner,

OMAHA TRIBE OF NEBRASKA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

+

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

LYMAN L. LARSEN

Counsel of Record

STINSON, MAG & Fizze tt, P.C.

1299 Farnam St.

Omaha, NE 68102

(402) 342-1700

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ee ee 1

II. STATEMENT OF THE CASE................. 2

Ill. REASONS FOR DENYING THE WRIT....... 8

The Eighth Circuit Court of Appeals decided

this case upon properly stated rules of law

consistent with applicable decisions of the

United States Supreme Court, and the decision

does not present a direct conflict with the deci-

sions of other Courts of Appeals............ 8

Extra Statutory Requirements................ 8

Jurisdictional Issue Intertwined with the

EE a CE REUNLA oh bode vs hadacatocdeeseeedeos 12

il

TABLE OF AUTHORITIES

Page

CASES

AT&T Technologies v. Communications Workers of

America, 475 U.S. 643 (1986) .....---eeee reer eeeees 11

Davis v. Chevy Chase Financial Ltd., 667 F.2d 160 |

(D.C. Cir. 1981).......cceeeeceeceereccceecceeeeers 10

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938

(1995) .. ccc ccceccccececsccceceeecetevereees 12, 15, 16

Kiowa Tribe of Oklahoma v. Manufacturing Technolo-

gies, 523 U.S. 751 (1998) .....-seeeeeeerereeeeesees 14

Missouri River Services, Inc. v. Omaha Tribe of

Nebraska, 267 F.3d 848 (8th Cir. 2001) ......-.. passim

Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) ....13

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) .....:e cere cere rere ee eeees 11

Shearson/American Express, Inc. v. McMahon, 482

U.S. 220 (1987) ....cceccecccsccccrccveceecescccers 11

United Paperworkers Int’l Union v. Misco, Inc., 484

U.S. 29 (1987) ..cccccccccccsevscccsecssececssvores 12 H

United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593 (1960)....--.-eeeeerereee 10, 12

United States v. Sherwood, 312 U.S. 584 (1941).......- 14

United States v. U.S. Fidelity and Guaranty Co., 309

U.S. 506 (1940) ..... cc ceeccccccccececesecceess 14, 15

Wilko v. Swan, 346 U.S. 427 (1953)......++++eeeees 11, 12

lil

TABLE OF AUTHORITIES - Continued

Page

STATUTES

9 U.S.C. § 10(a) «0... eee e cere e cere rece eee eceees i A

9 U.S.C. § 10(a)(4).... eee eee cece reece rece eee eeeeeee 10

RULES

Sup. Ct. R. 10...... es eeeecee cee cee ceecereererencees 2

eas

%

‘

!

I.

INTRODUCTION

The United States Court of Appeals for the Eighth

Circuit reversed the lower court for confirming an arbi-

tration award which contained a remedy in violation of

the sovereign immunity of the Omaha Tribe of Nebraska,

and exceeded the authority of the arbitrator under 9

U.S.C. § 10(a) of the Federal Arbitration Act. Missouri

River Services, Inc. v. Omaha Tribe of Nebraska, 267 F.3d 848

(8th Cir. 2001). The original award in favor of Missouri

River Services, Inc., (“MRS”) in the amount of

$6,206,358.00 plus interest against the Omaha Tribe of

Nebraska (the “Tribe”) was not disturbed. Only that por-

tion of the award which permitted its satisfaction out of

the assets of the Tribe’s Iowa casino, rather than the

defunct Nebraska bingo operation which was the subject

of the award, was disturbed.

MRS has now petitioned this Court to grant certiorari

on two questions, framed by petitioner as follows:

“1. Whether a court may vacate an arbitration

award which satisfies all criteria set forth in the

Federal Arbitration Act but (assertedly) violates

extra-statutory requirements imposed by the

court?

2. Whether a federal court to which an arbitra-

tion award has been submitted for confirmation

may independently determine a question pos-

sessing jurisdictional implications where the

jurisdictional question is inextricably intert-

wined with the merits of the case and neces-

sarily was resolved by the arbitrator?”

The petition claims that there is a conflict of author-

ity within the circuits that needs to be resolved by this

Court. On the contrary, the Eighth Circuit Court of

Appeals applied traditional rules of law recognized by

this Court. The asserted errors consist of nothing more

than a claim that these rules of law were misapplied,

which this Court rarely recognizes as a basis for granting

a Petition for a Writ of Certiorari. See Rule 10, Rules of the

Supreme Court of the United States.

Il.

STATEMENT OF THE CASE

This dispute arose out of a motion by MRS to confirm

an arbitration award, and a motion by the Tribe to vacate,

or in the alternative, modify the award. The heart of the

controversy on appeal related to whether the arbitration

award exceeded the grant of authority to the arbitrator in

the agreement, and also violated the Tribe's sovereign

immunity when confirmed. The award provides that it

can be enforced out of the assets of a Tribal gaming

operation in Iowa, but the arbitrator’s authority and the

Tribe’s waiver of sovereign immunity was specifically

limited to satisfaction only out of property purchased for

the failed Nebraska gaming operation.

This case arose out of an agreement between the

Tribe and MRS, dated December 10, 1987, as amended,

establishing the terms under which MRS would build and

manage a gaming facility on reservation property in

Nebraska.! The agreement provided for arbitration of

disputes. A dispute developed under the agreement and

MRS demanded arbitration.”

The arbitrator in this case derived her authority from

Paragraph XI of the December 10, 1987 Agreement. The

pertinent portion of Paragraph XI entitled “RESOLU-

TION OF DISPUTES” states:

“In the event any controversy or claim arising

out of this Agreement cannot be settled by the

parties hereto, such controversy or claim shall

be settled by binding arbitration in accordance

with the then current rules of the American

Arbitration Association.

Owner [the Tribe] hereby waives its sover-

eign immunity from suit with respect to any

disputes arising under this Agreement, but only

to the extent of all real and personal property

purchased pursuant to this Agreement, and

Owner further agrees that judgment upon any

arbitration award may be entered in any court

having jurisdiction thereof, and that such

court’s judgment may result in any executable

lien being placed on any such Property. Any

1 The reservation includes land in both Nebraska and Iowa.

2 MRS states, as a matter of fact, on pages 7 and 8 of its

Petition, that MRS fully performed its Agreement with the Tribe

but was expelled from the reservation. While this statement

relates to the merits of the dispute before the arbitrator, which

was not disturbed by the Eighth Circuit’s decision, nevertheless

the Tribe does not agree with this characterization of the facts

and believes it is at least implicitly refuted by the arbitrator’s

findings denying MRS’ claim for breach of its alleged “exclusive

right to conduct gaming operations” on the reservation. See

Appendix G, MRS’ Petition, p. 51a.

4

monetary judgment or award may be satisfied

only out of such property and/or out of

Owner’s share of any future NOP [Net Operat-

ing Profits] under this Agreement.” (Emphasis

added)

This clear limitation of the arbitrator’s authority was in

contrast with the following award by the arbitrator:

“Find for Claimant in the amount of

$6,206,358.00, which includes interest for ten

years as described in the December 10, 1987

agreement, net of the Tribe's July 8, 1993 settle-

ment with Mr. Croll adjusted for interest

through December 31, 1998. The award is to be

paid from the Enterprise, which includes all

gaming operations on the reservation of the

Omaha Tribe of Nebraska (the “Property”),

including specifically the gaming operations at

Onawa, Iowa; or from any other funds the

respondent may elect to use.” (Emphasis

added)

The clause in the contract between the parties, from

which the arbitrator derived her authority, clearly and

unambiguously limited the source for satisfying any

award to the “real and personal property purchased pur-

suant to this Agreement... ”, and any future profits

“ander this Agreement.” An Amendment to Agreement,?

approved by the Secretary of Interior on February 12,

1988, explicitly limited the “location of the Enterprise” to

Thurston County, Nebraska. That paragraph stated in

part:

3 See Appendix I to this Brief containing relevant portions

of the Amendment to Agreement.

“The Enterprise will conduct its preliminary

gaming activities . . . at the presently existing

cultural center presently held in trust by the

United States of America for the benefit of the

owner... in Thurston County, Nebraska con-

sisting of 1.25 acres more or less.

Following construction of a permanent facility

the Enterprise will conduct its business activ-

ities at a location in Thurston County, Nebraska

to be agreed upon by the parties (the “Real

Estate”).” (Emphasis added)

In that same Amendment to Agreement, in Article XX

captioned “Gaming Activities” the activities are limited

to the conduct of “Bingo and Bingo-related activities.”

These specific requirements of the location of the

Enterprise in Thurston County, Nebraska, conducting

bingo and bingo related activities, were in clear contrast

with the award of the arbitrator that specifically man-

dates its satisfaction from Tribal gaming operations in

Onawa, Iowa where Class III casino type gambling takes

place. Inexplicably, the arbitrator assumed jurisdiction,

for purposes of satisfying the award, over property

clearly excluded from the purview of the arbitrator’s

power. The dispute resolution clause in the December

10th Agreement waived the Tribe’s sovereign immunity

“only to the extent of all real and personal property

purchased pursuant to this Agreement. ...” And it was

that property from which an award could be satisfied.

With the distinct limitation in the Agreement on the

location and type of activities in Thurston County, it was

an impossibility that any property purchased for the

Onawa, Iowa casino was within the authority of the

arbitrator.

MRS filed a motion for an order confirming the arbi-

tration award in the United States District Court for the

District of Nebraska, and the Tribe filed a motion to

vacate the award or, in the alternative, to modify the

award. The issues were presented to the District Court

whether the arbitrator exceeded her authority and the

Tribe’s sovereign immunity, by allowing the arbitration

award to be enforced against and satisfied out of prop-

erty devoted to another tribal casino organized under a

different contract, in a different state, involving a differ-

ent class of gaming. The District Court confirmed the

award and overruled the motion to vacate or in the

alternative to modify.

The case was then appealed to the Eighth Circuit

Court of Appeals by the Tribe. The Court of Appeals

reversed the decision of the District Court summarizing

its holding as follows:

“In sum, we hold that the district court erred

because the Agreement, as approved by the BIA,

does not permit satisfaction of a monetary

award from profits and proceeds of the lowa

casino. Thus, the judgment in favor of MRS

should be strictly limited, as the Agreement pro-

vides, to profits of and property purchased for

the Nebraska facility.”

Missouri River Services, Inc. v. Omaha Tribe of Nebraska, 267

F.3d 848, 855 (8th Cir. 2001).

This decision was based on two independent

grounds. First, the Tribe granted a limited waiver of

sovereign immunity which allowed the enforcement of

the arbitration award only against assets directly

involved with the Nebraska contract. Since “waiver of

immunity from suit implicates jurisdictional concerns, a

court must satisfy itself that jurisdiction exists.” 267 F.3d

at 852. The court, after examining the waiver, held on this

issue that:

“As approved, the Agreement unambiguously

- restricted the ‘Location of the Enterprise’ to

‘Thurston County, Nebraska’ and ‘Gaming

Activities’ to ‘Bingo and Bingo related activ-

ities’. By the express terms of the only enforce-

able, valid agreement before the court, the

Tribe’s waiver of immunity was limited to entry

of a judgment and execution thereon only as to

property or profits from the Nebraska Bingo

facility.”

267 F.3d at 854.

Second, the Eighth Circuit based its reversal on its

conclusion that the arbitrator exceeded the scope of her

authority under the Federal Arbitration Act, 9 U.S.C.

§ 10(a). In reaching this conclusion, the Eighth Circuit

stated:

“{Tjhe contractual language cannot reasonably

be construed to include proceeds generated

under a different agreement the Tribe had exe-

cuted with a different party to conduct Class III

gaming in a different state. To the contrary,

‘It]he arbitrator’s decision does not draw its

essence from the contract because it is expressly

contrary to the terms of the Agreement.’ ”

267 F.3d at 855.

III.

REASONS FOR DENYING WRIT

The Eighth Circuit Court of Appeals decided this

case upon properly stated rules of law consistent

with applicable decisions of the United States

Supreme Court, and the decision does not present a

direct conflict with the decisions of other Courts of

Appeals.

The petition for certiorari essentially cites two rea-

sons for granting certiorari.

First, MRS argues that the Eighth Circuit’s decision

erroneously ruled that the arbitration award could be

vacated based on “extra-statutory grounds” imposed by

the court rather than the Federal Arbitration Act, and this

decision is in conflict with the decisions of other circuits.

Second, MRS argues that the Eighth Circuit decided a

jurisdictional question which was “intertwined” with the

merits of the arbitration decision which required the

court to defer to the arbitrator’s ruling on that issue. This

decision MRS claims also conflicts with the decisions of

other circuit courts.

It is evident from a careful review of the decision of

the Court of Appeals that MRS’ assertions in this respect

are inaccurate. The Court of Appeals was not in error,

and its decision does not pose any direct conflict with the

decisions in other circuits.

Extra Statutory Requirements.

In section IA of Petitioner’s Argument it claims that

the Eighth Circuit did not base its decision on any of the

statutory grounds set forth in 9 U.S.C. § 10(a) of the

Federal Arbitration Act. This is inaccurate.

The Eighth Circuit specifically cited 9 U.S.C. § 10(a)

as authority. 267 F.3d at 854. That section provides that:

“(a) In any of the following cases the United

States court ... may make an order vacating the

award upon the application of any party to the

arbitration —

* * +

(4) Where the arbitrators exceeded their powers,

or so imperfectly executed them that a mutual,

final, and definite award upon the subject mat-

ter submitted was not made.”

The Eighth Circuit specifically discussed Article XI of

the contract which provided for binding arbitration and

said that “[aJny ... award may be satisfied only out of”

property purchased pursuant to “this Agreement” or any

share of the Tribe’s-profits “under this Agreement.” Very

simply, the Court of Appeals held that the arbitrator

exceeded her powers because she authorized MRS to

satisfy the award out of totally unrelated property subject

to a different agreement.

In reaching this conclusion, the court cited various

rules it had applied in the past defining when an arbitra-

tor exceeds its powers. For example, the Eighth Circuit

recognized that an arbitrator may interpret ambiguous

language but may not “disregard or modify unambiguous

contract provisions.” An award will be set aside where it

is “completely irrational or evidences a manifest disre-

gard for the law.” And, an arbitration award is “irrational

10

where it fails to draw its essence from the agreement.”

267 F.3d at 854-855.

What is critical to recognize here is that the court was

examining the arbitrator’s abuse of its power based upon

Article XI of the contract defining the power of the arbi-

trator. This decision had nothing to do with the merits of

the case, but everything to do with the arbitrator's

authority. This is precisely what is intended by 9 U.S.C.

§ 10(a)(4) when it states that an award can be vacated

“Iw]here the arbitrators exceeded their powers. . . - "

Comparing an arbitrator’s exercise of authority, against

the contract which grants it, is a recognized judicial func-

tion under the decisions of this Court and the Federal

Arbitration Act.

A court derives its authority, or jurisdiction, from the

applicable legislative body or constitution. An arbitrator,

on the other hand, must look to the contract between the

parties as the sole source of his or her authority. As one

court so aptly stated:

“(T]he genesis of arbitral authority is the con-

tract, and arbitrators are permitted to decide

only those issues that lie within the contractual

mandate. By necessary implication, an arbitrator

award regarding a matter not within the scope

of the governing arbitration clause is one made

in excess of authority, and a court is precluded

from giving effect to such an award.”

Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 165 (D.C.

Cir. 1981), citing as authority for the statement the United

States Supreme Court Case of United Steelworkers of Amer-

ica v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597

(1960).

11

It was the Tribe’s contention in the lower court that

the contract stated that it was not for the arbitrator to

decide what assets could be used to satisfy an award.

That was decided by the parties to the contract and

placed beyond the arbitrator’s authority or jurisdiction in

the arbitration clause. Furthermore, this Court recognized

in AT&T Technologies v. Communications Workers of Amer-

ica, 475 U.S. 643, 648 (1986) that “[u]nless the parties

clearly and unmistakably provide otherwise, the question

of whether the parties agreed to arbitrate is to be decided

by the Court, not the arbitrator.”

It is therefore apparent that the Eighth Circuit

decided this case upon the appropriate section of the

Federal Arbitration Act, and did so by applying properly

stated rules of law. It did not challenge, or disagree with,

any contrary decisions from other circuits.

Petitioner persists in this theme by suggesting that

the Eighth Circuit’s decision was based upon non-statu-

tory, judge-made criteria emanating largely from dicta in

this Court’s decision in Wilko v. Swan, 346 U.S. 427 (1953).

Wilko, it is argued, was later criticized and then overruled

in Shearson/American Express, Inc. v. McMahon, 482 U.S.

220 (1987) and Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989).

Petitioners argue that the Wilko court used such

terms as “manifest disregard of the law” and “draw its

essence from the contract” in describing the legal bound-

aries of an arbitration award. While Wilko was overruled

by Rodrigues de Quijas v. Shearson/American Express, Inc.,

supra., it was not overruled for the use of these terms, but

rather for holding that arbitration was not an appropriate

12

forum for deciding claims under the Securities Act of

1933. More importantly, these terms have been used by

this Court in cases decided after Wilko suggesting that the

underlying premise of petitioner’s argument, in attempt-

ing to demonstrate a conflict between the Eighth Circuit

decision and this Court’s cases, is flawed. See, e.g., United

Steelworkers of America v. Enterprise Wheel & Car Corp., 363

U.S. 593, 597 (1960) (“[Y]et his award is legitimate only so

long as it draws its essence from the collective bargaining

agreement.”); United Paperworkers Int'l Union v. Misco,

Inc., 484 U.S. 29, 41 (1987) (“[T]he arbitrator’s decision

must draw its essence from the agreement. . . ”); First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995)

(“[P]arties [are] bound by arbitrator’s decision not in

“manifest disregard of the law”, citing Wilko v. Swan and

noting “overruled on other grounds.”).

For petitioner to suggest, therefore, that the Eighth

Circuit’s decision in this case is in direct conflict with the

decisions in other circuits is a misguided effort to create a

conflict where none exists. The very language which sup-

posedly creates the conflict among circuit courts has been

used, not only by the Eighth Circuit in this case, but also

by the United States Supreme Court itself.

Jurisdictional Issue Intertwined with the Merits.

Petitioner next argues that the sovereign immunity

jurisdictional issue addressed by the Court of Appeals

was intertwined with the merits of the arbitration award,

and therefore the court should have deferred to the deci-

sion of the arbitrator on the merits to resolve this issue.

Several cases from various circuits are cited as authority

13

for this proposition, including the Eighth Circuit decision

of Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).

The Obsorn case discussed the obligation of a district

court to request an evidentiary hearing if it thinks it lacks

subject matter jurisdiction, and rule on that issue. As the

court further stated, “[t]he only exception is in instances

when the jurisdictional issue is ‘so bound up with the

merits that a full trial on the merits may be necessary to

resolve the issue.’ ” 918 F.2d at 730.

The first problem with petitioner’s argument on this

point is that none of the cases it cited dealt with arbitra-

tion, and therefore are factually remote to the case before

the court. Second, the jurisdictional issue was not in any

way “intertwined” with the merits of the case, or the

arbitration award. The arbitration clause on its face pro-

hibited making the award applicable to any assets other

than those associated with “this Agreement.” The arbitra-

tor, for whatever reason, clearly violated that clause when

she made the assets of a completely different casino oper-

ation, governed by a different agreement, subject to the

award.

Furthermore, the Eighth Circuit doubted that the

arbitrator even interpreted the arbitration clause on this

waiver of immunity issue. As the court stated:

“Assuming the arbitrator attempted to interpret

the scope of the waiver of immunity, which we

doubt, we agree with the Tribe that the district

court erred in believing it could not disturb her

interpretation. Because a waiver of immunity

from suit implicates jurisdictional concerns, a

court must satisfy itself that jurisdiction exists.”

14

267 F.3d at 852. Obviously, the Eighth Circuit never

believed this jurisdictional issue was in any way “intert-

wined” with the merits. The merits of the case had noth-

ing to do with the arbitration clause, the sovereign

immunity jurisdictional issue, or the arbitrator’s usurpa-

tion of power specifically denied it by the contract.

Again, despite petitioner’s strained attempt to create

a conflict among the circuits, where none really exists, it

is apparent that the Eighth Circuit decided this case upon

a correct application of properly stated rules of law.

Sovereign immunity has always been viewed by the

courts as a limitation on their jurisdiction, and as a matter

for the court to examine and decide on its own. In United

States v. Sherwood, 312 U.S. 584, 586-87 (1941), the

Supreme Court stated that “[t]he United States, as sover-

eign, is immune from suit save as it consents to be

sued ... and the terms of its consent to be sued in any

court define that court’s jurisdiction to entertain the suit.”

Any such consent must be “strictly interpreted.” 312 U.S.

at 590. As sovereigns, Indian Nations also enjoy immu-

nity “from judicial attack absent consent to be sued.”

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523

U.S. 751, 757 (1998).

In United States v. U.S. Fidelity and Guaranty Co., 309

U.S. 506 (1940), the Supreme Court held that the Choctaw

and Chickasaw Nations, and the United States as their

trustee, could not be held liable on a judgment rendered

on a cross-claim in state court because there had been no

congressional consent. Therefore, the judgment was sub-

ject to collateral attack. The Supreme Court stated:

15

“Consent alone gives jurisdiction to adjudge a

sovereign. Absent that consent, the attempted

exercise of judicial power is void.”

309 U.S. at 514. Furthermore, the failure to object to the

Court’s jurisdiction did not constitute a waiver of this

immunity because “immunity cannot be waived by offi-

cials”, otherwise “it would subject the Government to

suit in any court in the discretion of its responsible offi-

cers.” 309 U.S. at 513.

On pages 11 and 18 of its Petition, MRS argues that

the Tribe had stipulated that the arbitrator had the

authority to decide the Tribe’s waiver of sovereign immu-

nity. The Tribe disputes this suggestion. The stipulation,

Appendix H to the Petition, does not specifically identify

that as an issue subject to arbitration. Furthermore, the

Eighth Circuit, citing this Court’s decision in the United

States v. U.S. Fidelity and Guaranty Co., stated that “the

Tribe’s attorney could not expand the scope of the Tribe’s

waiver from suit in the pre-hearing submission to the

arbitrator.” 267 F.3d at 852.

What MRS is really arguing is that the parties agreed

that the arbitrator should decide the issue of the Tribe’s

scope of its waiver of sovereign immunity in the Arbitra-

tion Clause. This is an issue of who properly decides an

arbitrator’s scope of authority - the arbitrator or the

court. This Court has held that the scope of an arbitra-

tor’s power to decide an issue, or arbitrability of an issue,

is- subject to independent review by the courts. First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). This

Court further admonished that “[c]ourts should not

assume that the parties agreed to arbitrate arbitrability

unless there is ‘clea[r] and unmistakabl[e]’ evidence that

16

they did so.” 514 U.S. at 944. Not only did the Tribe’s

attorney not have the authority to expand by stipulation

the arbitration clause’s delegation of power to the arbitra-

tor, but there is no “clear and unmistakable” evidence

that the parties agreed to do so.

IV.

CONCLUSION

It is evident from a review of the Eighth Circuit's

decision in this case that it followed well established

principles of law rendered by this Court. There is no

conflict among the circuits, represented by this case, that

calls for a resolution by this Court. The case is simply one

in which an arbitrator exceeded her authority under the

arbitration clause in granting a remedy, and in the pro-

cess violated the sovereign immunity of the Omaha Tribe

of Nebraska. The Eighth Circuit reviewed the case on

very narrow and traditional grounds, and prevented

what would have otherwise been a clear injustice to the

Tribe.

The arbitrator’s decision on the merits was not dis-

turbed. The court merely limited the applicability of the

award, and its satisfaction, to assets within the limits of

the Tribe’s waiver of sovereign immunity.

The Eighth Circuit based its decision on two indepen-

dent grounds, the arbitrator’s violation of its authority

and a violation of the Tribe’s sovereign immunity. Either

basis alone is sufficient to sustain the Court’s decision.

_— %

17

We therefore respectfully request that the Court deny

the Petition for Certiorari.

Dated this 8th day of April, 2002.

OMAHA TRIBE OF NEBRASKA, a

federally recognized Indian

Tribe, Respondent

LYMAN L. LarsEN, #12398

Stinson, Mac & Fizzett, P.C.

1299 Farnam St.

Omaha, NE 68102

App. 1

APPENDIX I

AMENDMENT TO AGREEMENT

This Amendment to the Agreement dated December

10, 1987 (the “Amendment”) is made on the date set forth

opposite the signature of the parties, by and between the

Omaha Tribe of Nebraska (hereinafter referred to as the

“Owner”), which is a federally-recognized Indian Tribe

organized pursuant to the Indian Reorganization Act of

June 18, 1934 (25 U.S.C. §476) and Missouri River Ser-

vices, Inc., a Delaware corporation f/k/a Streicher &

Stearns, Inc. a Delaware corporation (hereinafter referred

to as “MRS”).

RECITALS

WHEREAS, the owner is a federally-recognized

Indian Tribe and

WHEREAS, Streicher & Stearns, Inc. has changed its

name to Missouri River Services, Inc.; and

WHEREAS, the Owner and MRS entered into an

Agreement dated December 10, 1987 whereby MRS was

retained by the Owner to finance, establish, operate, and

manage property owned by the Owner (the “Enterprise”)

and to conduct, manage, and operate Bingo and other

gaming activities of the Enterprises on behalf of the

Owner; and

WHEREAS, the Department of Interior, Bureau of

Indian Affairs, has requested that the parties make cer-

tain changes to the Agreement to comply with a mem-

orandum from Under-Secretary Ross Swimmer dated

App. 2

April 7, 1986 prior to the time that it will issue its

approval of the Agreement, and

WHEREAS, the parties wish to amend and modify

the agreement to comply with the April 7, 1986 memoran-

dum from Under-Secretary Swimmer.

NOW, THEREFORE, in consideration of mutual

promises and covenants contained herein, the parties

agree to amend the Agreement as follows:

WITNESSETH

* * *

3. The Agreement does not currently specify the

location where the Enterprise will conduct its activities.

Accordingly, the Agreement should be, and is hereby

amended by inserting the following language at the end

thereof:

XIX. LOCATION OF THE ENTERPRISE

The Enterprise will conduct its Preliminary

Gaming Activities, as that term is defined in the

Supplemental Agreement of December 10, 1987,

at the presently existing Cultural Center pres-

ently held in trust by the United States of Amer-

ica for the benefit of the Owner and legally

described as follows:

S[illegible] of the NE[illegible] of the SE[illegi-

ble] of the NW[illegible)] Section 25 Township 25

Range 9 in Thurston County, Nebraska consist-

ing of 1.25 acres more or less.

Following construction of a permanent

facility the Enterprise will conduct its business

activities at a location in Thurston County,

App. 3

Nebraska to be agreed upon by the parties (the

“Real Estate”).

In the event that the Real Estate is owned by

a third party MRS will purchase the Real Estate,

and for the sum of One Dollar ($1.00), convey

the Real Estate to the Owner whereupon the

Owner shall place the Real Estate in trust with

the United States of America for the benefit of

the Owner. The cost of acquisition of the Real

Estate shall be deemed a capital investment and

repaid to MRS in the manner set forth in Article

II(A). The parties acknowledge and agree that

notwithstanding anything in this Agreement to

the contrary, the Owner is not required to

obtain, or provide, the Real Estate to MRS, but,

instead, MRS will secure the same at its sole cost

and expense, which cost and expense shall be

repaid to MRS pursuant to the terms of Article

II(A).

4. The Agreement should be, and is hereby

amended by inserting the following language at the end

thereof:

Article XX, Gaming Activities

The Enterprise shall conduct Bingo and

Bingo-related activities.

5. This Amendment is intended to be construed in

accordance with the terms of the Agreement. In the event

that there is any conflict between this Amendment and

the Agreement, the terms of the prior shall govern the

terms of the latter to the extent of any such inconsistency.

IN WITNESS WHEREOF, the parties hereto have exe-

cuted this Amendment at the place, and upon the day

and year set forth opposite their respective signatures.

App. 4

“OWNER”

Executed this 2nd day By: /s/ [Illegible]

of February, 1988 at Its: Chairman, Omaha

Macy, Nebraska Tribe Nebraska

“MRS”

By: /s/ [Illegible] |

Executed this 4th day Its: Secretary/Trea-

of February, 1988 at surer

Barrington, Illinois

RECEIVED AND /s/ [Illegible]

APPROVED: Office of the Secretary

of Interior/Bureau of

Date 2/12/88 Indian Affairs