Here is the order.
The Bay Mills CVSG notice is on page 2 (we called it here), and the Contour Spa denial notice is on page 4.
Contour Spa at Hard Rock v. Seminole Tribe
Contour Spa at the Hard Rock v. Seminole Tribe Cert Stage Briefing Complete
Here:
No Conference date has been set for this petition.
Seminole Tribe Brief in Opposition to Contour Spa Cert Petition
Contour Spa v. Seminole Tribe Cert Petition
Here:
Questions Presented:
1. Does Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2003), provide a basis for finding a waiver of tribal sovereign immunity where an Indian Tribe has expressly waived sovereign immunity, is sued in state court, removes to federal court, and then asserts sovereign immunity based on the Tribe’s concealment of the fact that the Tribe did not comply with the Secretary of the Interior’s lease approval requests?
2. Does Justice Brandeis’ opinion in Turner v. United States, 248 U.S. 354 (1919). support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), be revisited and discarded.
3. Does the Indian Civil Rights Act, Title 25 U.S.C. § 1302(a)(5) and (a)(8) create an implicit cause of action permitting the Tribe to be sued for the taking of property without due process of law?
Lower court materials here.
Eleventh Circuit Affirms Tribal Immunity in Contour Spa v. Seminole Tribe
Dreveskracht on “Keeping Tribal Business Partners Close – and Their Lawyers Closer”
Ryan Dreveskracht has written a short paper for publication on Turtle Talk titled “Keeping Tribal Business Partners Close – and Their Lawyers Closer”: Keeping Tribal Business Partners Close – and Their Lawyers Closer.
The paper is intended for tribal attorneys, and details some of the lessons tribal lawyers can learn from two recent cases involving the Seminole Tribe of Florida (Everglades Ecolodge and Contour Spa). In both cases, argues Dreveskracht, attorneys for the non-Indian business interests didn’t do their Indian law due diligence, and in the adversarial proceedings that followed in court, the Tribe pounced:
Of course, waiving tribal sovereign immunity where appropriate is always one option, but this is not always feasible. In Contour Spa and Everglades, for example, the Tribe had in fact waived its sovereign immunity via its contract with the non-Indian parties. In those cases, ultimately, the fault rested with those parties tasked with overseeing the negotiation and maintenance of those business transactions.
Dreveskracht believes that tribal lawyers may have some sort of obligation (practical, if not ethical) to make sure that the other side doesn’t fall into any Indian law traps:
Another solution is that tribes, in appropriate instances, ensure that their non-Indian business partners have engaged attorneys that are familiar with the fundamental principles of Indian law. Although this strategy may seem counterintuitive, a tribal party should pause during the deal to consider the old adage that “bad facts make for bad law,” while also accepting that commercial disputes are inevitable, especially in modern economic times. The tribal party should also pause to consider that it is increasingly appropriate to litigate these disputes on the merits, rather than bank on seeking a quick dismissal on Indian jurisdictional grounds – a dismissal that will very likely result in appeal. There is great potential that the appellate courts will force an exception to a sovereignty-based affirmative defense – and that the exception could swallow the rule. This proverb is particularly true for commercially successful tribes, where the perception of big-business/small-entrepreneur inequality is even more likely to drive bad results in the courts, and in the court of public opinion. Accordingly, the parties and their lawyers should ensure clarity and understanding regarding the various issues of tribal jurisdiction and federal Indian law that are implicated in Indian Country commercial transactions.
I’m largely in agreement with Dreveskracht. When I started practicing in the 1990s, senior attorneys counseled me to draft contract language that would facilitate these kinds of traps. One example involved a private vendor that refused to adjudicate disputes in tribal court, insisting on state court jurisdiction and governing law. We negotiated for federal court review as a “compromise.” Of course, there is no federal subject matter jurisdiction over contract claims just because one of the parties is an Indian tribe. In California especially, cases started coming out in the 2000s where federal court judges were forced to dismiss contract claims, but the federal judges openly criticized tribal lawyers for negotiating those provisions. They frankly are borderline unethical, and may implicate professional responsibility canons.
Business partners are partners before they are adversaries, and tribal businesses depend on goodwill of their own businesses and those of other tribes to create a groundwork for doing business with non-Indian entities. It seems reasonable to rethink the arms-length negotiations strategies in at least some contracts. It may be a difficult pill to swallow for tribal lawyers. Well, face it, most just won’t do it. Lawyers are trained in an adversarial process, and always lean toward strictly assessing risk. Maybe that’s why lawyers are such lousy business people.
Tribal Immunity, Tribal Court Jurisdiction, and Separation of Powers
There are two active cases out there involving Florida tribes that raise interesting questions relating to tribal courts and tribal immunity in federal and state courts. The two cases, Miccosukee Tribe v. Kraus-Anderson Constr. (which is currently pending before the Supreme Court — an invitation brief from the OSG may be forthcoming soon), and last week’s district court decision in Contour Spa at Hard Rock v. Seminole Tribe (see today’s post here).
It is our understanding that both tribes have unusual government structures (unusual by federal and state standards, and to most but not all tribes) in which the tribal legislature serves as the appellate court of final resort for the tribal judiciary. This is less common, we think, than it once was in Indian country, but a goodly number of tribes retain this structure. Many tribes in Michigan, by contrast, have very clear constitutional boundaries between the tribal political branches and the tribal courts, and the Harvard Project strongly recommends an independent judiciary as part of its prescription for solid economic growth in Indian country.
Tribes can and should establish whatever governmental structure they believe fits best for their communities, but there may be consequences to the tribal council-as-appellate court structure for tribes that have large commercial operations. Miccosukee, for example, is trying to enforce a tribal court judgment in federal court, and their tribal court judgment creditor is vehemently arguing that tribal jurisdiction is not viable because the tribal appellate court — the tribal council — is an interested party in the underlying suit. [That case likely will turn on whether the federal court had subject matter jurisdiction over the contract claim, however.] But if the Miccosukee Tribe or other tribes try to enforce tribal court judgments in state or federal courts, it could be very difficult to persuade a foreign court to enforce a judgment ultimately controlled by the tribal council.
Such bad government structure “facts” almost made terrible law in the Contour Spa case, where the district court gave a great deal of credence to the Tenth Circuit’s maligned Dry Creek Lodge exception (this exception allows federal courts to review tribal government action under the Indian Civil Rights Act under certain circumstances, such as the lack of a tribal court forum). Other than the actual Dry Creek Lodge case (which was “bad facts make bad law” exemplified), no other court has adopted it. And outside of the Tenth Circuit, few (if any) courts have even invoked it to see if it was worth adopting. But last week, in large part because the tribal legislature sits as the tribal court at Seminole (according to the opinion), the district court invoked Dry Creek Lodge and applied the facts of the Contour Spa contract breach claim to it. While the court did not, in the end, apply the “exception,” likely because the non-tribal party didn’t attempt to resolve the dispute in “tribal court,” the mere fact that it was willing to take the Dry Creek Lodge exception seriously is worth contemplating.
Two commercially successful tribes with no independent tribal judiciary. While nothing disastrous has occurred yet, there are commercial costs associated with this government structure. Maybe for these tribes, those costs are worth paying. But they should be taken seriously.
Federal Court Remands Contract Breach Claim against Seminole Tribe to State Court
Here are the materials in Contour Spa at Hard Rock v. Seminole Tribe (S.D. Fla.):
DCT Order Remanding Case to Fla. Cir. Ct.
Seminole Tribe Motion to Dismiss
Contour Spa Response to Cypress Motion
Contour Spa Response to Tribe Motion
Of note, the court here appeared to assume that the so-called “Dry Creek lodge exception” could apply here, but found that the plaintiffs did not meet the requirements (one of which was essentially exhaustion of tribal forums). This is a potentially troubling development (that is, the spread of Dry Creek Lodge to areas outside of the Tenth Circuit).
Turtle Talk 