First, we want to express our deepest sympathy to the family and colleagues of Rob Rosette, who recently walked on far too young. Rob’s impact on Indian country and the practice of Indian law cannot be understated. He was a true giant in the field. Over the years, Rob and his firm hired many of our alums from Michigan State’s Indigenous Law and Policy Center, and for that we are grateful. He will be missed.
Here are the newest materials in Williams & Cochrane LLP v. Quechan Tribe of the Fort Yuma Reservation (S.D. Cal.):
Can a federal court refuse to enforce the delegation clause of an arbitration agreement on the ground that a choice-of-law provision applicable to the arbitration agreement as a whole prospectively waives federal rights?
Shortly after judgment was entered in this case, PPN constituted its Tribal Court for the first time; there is no evidence that it ever existed in any meaningful way until then. Days after the newly appointed judge issued standing orders, PPN filed a civil complaint in that Tribal Court that seeks to (1) declare the judgment issued in this case invalid, (2) limit and control—indeed, vitiate—the scope of enforcement of that judgment, and (3) impose roughly eleven million dollars in liability on JW Gaming for alleged fraud stemming from the same loan agreement here. The lawsuit names not only JW Gaming but its attorneys in this matter and the bank at which PPN maintains accounts that was recently subpoenaed in the course of enforcement of the judgment. It is the first (and, as far as the record shows, only) case brought in the Tribal Court. Remarkably, up until the eve of the hearing on a temporary restraining order (“TRO”) against the proceeding, which I ultimately denied, JW Gaming could not find publicly available information about how appear in that proceeding (despite being served with a summons), who the judge was, or what the rules were.
JW Gaming moved for an order to show cause why an injunction should not issue, which I denied. It then moved for the TRO, which I converted into a motion for a preliminary injunction once PPN’s counsel committed to placing the Tribal Court proceeding on hold. That motion is now ripe for decision.
It is critical that federal courts respect tribal sovereignty and tribal court jurisdiction. Tribes are sovereign nations. Their ability to govern themselves and enjoy the full benefits of sovereignty is unquestioned. Tribal courts, as arms of the tribe, are entitled to substantial comity and deference under established federal law. I previously denied JW Gaming’s motion for an order to show cause why an injunction should not issue out of these concerns. I remain vigilant about the compelling interest that PPN has in maintaining its sovereignty.
Those concerns, however, do not prevent an injunction against a Tribal Court proceeding that seeks to invalidate or interfere with the judgment entered in this Court. There are compelling interests in ensuring that enforcement of valid federal-court judgments is not interfered with, that JW Gaming is not required to litigate a lawsuit precision-engineered to invalidate and interfere with this one, and that third parties are not exposed to court orders or liability for simply enforcing a judgment or attempting to comply with the procedures for enforcing it. To the extent the lawsuit seeks to invalidate the judgment or interfere with enforcement, it is unquestionably meritless: a tribal court lacks authority to invalidate a federal court’s judgments or to dictate the scope of executing that those judgments. JW Gaming has shown it is entitled to a preliminary injunction to the extent that the Tribal Court proceedings attempts to invalidate, interfere with, or thwart the judgment entered here. I possess jurisdiction to enter this injunction to protect and effectuate the judgment. The doctrine of tribal court exhaustion does not apply because PPN exercised its sovereign power to clearly, expressly, and unequivocally waive it.