MM&A PRODUCTIONS, LLC v. YAVAPAI-APACHE NATION , 234 Ariz. 60 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
MM&A PRODUCTIONS, LLC,
AN ARIZONA LIMITED LIABILITY COMPANY,
Plaintiff/Appellant,
v.
YAVAPAI-APACHE NATION, A FEDERALLY RECOGNIZED INDIAN TRIBE;
YAVAPAI-APACHE NATION’S CLIFF CASTLE CASINO, A BUSINESS
ENTERPRISE OF THE YAVAPAI-APACHE NATION;
TRIBAL GAMING BOARD; AND
CLIFF CASTLE CASINO BOARD OF DIRECTORS,
Defendants/Appellees.
No. 2 CA-CV 2013-0051
Filed January 16, 2014
Appeal from the Superior Court in Pima County
No. C20085949
The Honorable Paul E. Tang, Judge
The Honorable Carmine Cornelio, Judge
AFFIRMED
COUNSEL
Law Office of Michael Meehan, Tucson
By Michael J. Meehan
Counsel for Plaintiff/Appellant
Crowell Law Offices Tribal Advocacy Group, Sedona
By Scott Crowell
William Foreman, Scottsdale
Co-counsel for Defendants/Appellees
MM&A PRODS., LLC v. YAVAPAI-APACHE NATION
Opinion of the Court
OPINION
Presiding Judge Kelly authored the opinion of the Court, in which
Judge Espinosa and Judge Eckerstrom concurred.
K E L L Y, Presiding Judge:
¶1 MM&A Productions, LLC, appeals from the trial court’s
judgment dismissing its contract action against the Yavapai-Apache
Nation and related entities for lack of subject matter jurisdiction. It
argues the court erred by concluding it had failed to show a valid
waiver of the Nation’s sovereign immunity, and by not allowing
further discovery and holding an evidentiary hearing before ruling.
We affirm.
Factual and Procedural Background
¶2 In 2008, MM&A filed a complaint against the Yavapai-
Apache Nation, its tribal gaming board, the tribe’s Cliff Castle
Casino, and the casino’s board of directors (collectively, the Nation),
alleging breach of a 2006 “Exclusive Entertainment and Production
Agreement” and associated claims, including breach of the implied
covenant of good faith and fair dealing, unjust enrichment, tortious
interference with prospective business advantage, and fraud. The
complaint stated the casino’s marketing director, Steven Wood, had
signed the 2006 agreement with MM&A and had waived the
Nation’s sovereign immunity. Attached to the complaint was a copy
of the contract, which had been signed on May 18, 2006, and a
“Waiver of Sovereign Immunity Addendum,” which Wood had
signed on June 30, 2006. MM&A also attached a 2002 “Exclusive
Entertainment Booking Agreement” and a 2003 “Waiver of
Sovereign Immunity,” both signed by a previous marketing director.
¶3 The Nation filed a motion to dismiss the complaint
pursuant to Rule 12(b)(1), Ariz. R. Civ. P., arguing, inter alia, that the
trial court lacked subject matter jurisdiction over the action because
MM&A had not shown a valid waiver of the Nation’s sovereign
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Opinion of the Court
immunity. In support of its motion, the Nation attached a copy of
the Constitution of the Yavapai-Apache Nation, which states in
article XIII:
The Yavapai-Apache Tribe hereby declares
that, in exercising self-determination and
its sovereign powers to the fullest extent,
the Tribe is immune from suit except to the
extent that the Tribal Council expressly
waives sovereign immunity, or as provided
by this constitution.
It also provided a copy of the Cliff Castle Casino Board of Directors’
Act (Board Act), adopted by the Tribal Council in 2005. The Board
Act described the procedure for negotiating and approving
contracts, which required either a majority vote of the Board or
consent of the Tribal Council. It also stated “[a]ll contracts shall to
the greatest extent possible be drafted or negotiated to include
language preserving the sovereign immunity of the Nation.”
¶4 The Nation submitted two declarations by the Tribal
Council’s Executive Secretary, which stated that she had reviewed
the Tribal Council minutes from January through August 2006 and
there had been no motions authorizing any casino employee to
execute the 2006 contract or waiver of immunity. She further stated
there had been no Tribal Council resolution to that effect in 2006 or
2007. It also attached the declaration of a casino board member,
stating there was no resolution in 2006 or 2007 authorizing the board
to enter into a contract with MM&A or to waive the Nation’s
immunity. The casino board’s Administrative Assistant further
declared there had been no motion from January 2006 through
August 2006 for any board member or casino employee to execute
the contract or a waiver of immunity. The Nation’s Acting Attorney
General from October 2005 through December 2006 described the
approval procedure for casino contracts and stated the contract with
MM&A had not been submitted to her office or approved for
consideration by the board.
¶5 In its response to the Nation’s motion to dismiss,
MM&A argued the contract was “an explicit waiver of [the Nation’s]
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Opinion of the Court
sovereign immunity,” Wood “had at least apparent authority” to
waive immunity, the Board could have delegated authority to Wood
to execute the contract, the Nation’s Attorney General had approved
the contract, and the Tribal Council or board may have passed a
resolution prior to 2006 granting Wood the authority to enter into
the contract and waive sovereign immunity. In support of its
contentions, MM&A attached the affidavit of its Executive Director,
who had negotiated the 2006 contract, stating that Wood had told
him the Nation’s Attorney General had reviewed the contract and
the casino’s board of directors had “given him . . . authority to sign
the Contract and the waiver of sovereign immunity,” and that the
Chairperson of the board and a Tribal Council member had told him
in “conversations” that the board and council were “aware of and
approved the waiver of sovereign immunity.”
¶6 After a hearing on the motion, the trial court granted
the Nation’s motion to dismiss. The court was “not persuaded Mr.
Wood possessed authority to waive the sovereign immunity of the
. . . Nation and its affiliates” and concluded MM&A had failed to
demonstrate the Nation had made a “valid sovereign immunity
waiver.” It found “the Yavapai-Apache Nation possesses a clear
protocol by which a business like MM&A can secure a waiver” and
MM&A had “utterly failed to avail itself of these tribal procedures.” 1
This appeal followed.
Apparent Authority to Waive Immunity
¶7 MM&A first argues the trial court erred by concluding
the doctrine of apparent authority was not “available” to prove a
valid waiver of the Nation’s sovereign immunity. Because MM&A
raises a purely legal question, we review it de novo. See City of
Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 50, 181 P.3d
219, 233-34 (App. 2008). And although the trial court may resolve
factual issues bearing on its jurisdiction, we review de novo the
1The trial court also found that MM&A was required to file
this action in federal court, pursuant to the parties’ agreement.
Because we conclude the Nation is immune from suit, we do not
reach that issue.
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Opinion of the Court
court’s ultimate conclusion that the doctrine of sovereign immunity
applies to divest the Arizona courts of jurisdiction over MM&A’s
claims. See Filer v. Tohono O’Odham Nation Gaming Enter., 212 Ariz.
167, ¶ 5, 129 P.3d 78, 80 (App. 2006); Mitchell v. Gamble, 207 Ariz. 364,
¶ 6, 86 P.3d 944, 947 (App. 2004).
¶8 “Indian tribes have long been recognized as possessing
common-law immunities from suit co-extensive with those enjoyed
by other sovereign powers including the United States as a means of
protecting tribal political autonomy and recognizing their tribal
sovereignty which substantially predates [the United States]
Constitution.” Pan Am. Co. v. Sycuan Band of Mission Indians, 884
F.2d 416, 418 (9th Cir. 1989). Pursuant to the doctrine of sovereign
immunity, lawsuits against Indian tribes are barred “absent a clear
waiver by the tribe or congressional abrogation.” Okla. Tax Comm’n
v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).
MM&A does not dispute that each defendant in this action, as a
tribal entity or economic enterprise, is “clearly entitled to the
protection of sovereign immunity.” See In re Greene, 980 F.2d 590,
593 (9th Cir. 1992) (subordinate economic enterprise of tribe immune
from suit for breach of contract); see also Filer, 212 Ariz. 167, ¶ 6, 129
P.3d at 80-81 (subordinate economic enterprise entitled to same
immunity as tribe). But it argues it should be able to “use . . . the
doctrine of apparent authority to establish that the waiver of
sovereign immunity [in this case] was binding against the Nation.”
¶9 As the trial court noted in its ruling, waivers of
sovereign immunity are strictly construed in favor of the sovereign.
Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d
315, 320 (10th Cir. 1982). The United States Supreme Court has
articulated repeatedly that a waiver of sovereign immunity “‘cannot
be implied but must be unequivocally expressed.’” Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978), quoting United States v.
Testan, 424 U.S. 392, 399 (1976). In other words, the waiver must
“expressly indicate[] the [tribe]’s consent” to suit. Pan Am. Co., 884
F.2d at 418. In addition, “if a tribe ‘does consent to suit, any
conditional limitation it imposes on that consent must be strictly
construed and applied.’” Mo. River Servs., Inc. v. Omaha Tribe of Neb.,
267 F.3d 848, 852 (8th Cir. 2001), quoting Namekagon Dev. Co. v. Bois
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Forte Reservation Hous. Auth., 517 F.2d 508, 509 (8th Cir. 1975). In this
case, the Nation’s Constitution states it is “immune from suit except
to the extent that the Tribal Council expressly waives sovereign
immunity, or as provided by this constitution.” Yavapai-Apache
Nation Const., art. XIII.
¶10 Federal law indicates that an Indian tribe’s
authorization to waive its immunity by agreement must be express,
contrary to MM&A’s suggestion that an official cloaked with
apparent authority may execute a valid waiver absent actual
authority to do so. Generally, sovereign immunity “cannot be
waived by officials” in a way that “subject[s] the [sovereign] to suit
in any court in the discretion of its responsible officers.” United
States v. U.S. Fid. & Guar. Co. (USF&G), 309 U.S. 506, 513 (1940); see
also Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288,
1295 (10th Cir. 2008) (tribal company not equitably estopped from
asserting immunity where company officials told distributor it did
not need waiver because misrepresentations of tribe’s officials or
employees “cannot affect its immunity from suit”). This is
consistent with the principle that “[c]onsent alone gives jurisdiction
to adjudge against a sovereign.” USF&G, 309 U.S. at 514.
¶11 For example, in Memphis Biofuels, LLC v. Chickasaw
Nation Industries, Inc., 585 F.3d 917, 918-19 (6th Cir. 2009), an energy
company that had contracted with a tribal corporation produced a
signed, written agreement with language expressly waiving
sovereign immunity. The company believed the tribal corporation
had obtained the required approval for the waiver provision from its
board, but it had not. Id. at 922. The Sixth Circuit concluded the
tribal corporation remained immune from suit, and rejected the
company’s attempt to prove waiver based on equitable doctrines
and the fact that the tribal corporation had “signed the agreement
representing that it waived sovereign immunity.” Id. The court
noted that case law had established “unauthorized acts of tribal
officials are insufficient to waive tribal-sovereign immunity,”
despite any seemingly unfair result. Id. The holding in Memphis
Biofuels later was cited with approval by the Eighth Circuit in
Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680, 688 (8th
Cir. 2011).
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Opinion of the Court
¶12 Similarly, the court in World Touch Gaming, Inc. v.
Massena Management, LLC, 117 F. Supp. 2d 271, 276 (N.D.N.Y. 2000),
rejected the proposition that the agency principle of apparent
authority can trump the requirement of an Indian tribe’s express
consent to suit. In that case, World Touch filed a breach of contract
action based on a sale agreement it had entered with the
management company operating the St. Regis Mohawk Tribe’s
casino. Id. at 272-73. The management company’s senior vice
president had signed the agreement, which provided
“Notwithstanding the aforementioned Tribal Sovereignty the Tribe
agrees to submit to the jurisdiction of the state and federal courts for
the sole and limited purpose of enforcement of the obligations under
this contract.” Id. at 273. Despite the contract’s language explicitly
waiving immunity, the court concluded the Tribe retained its
immunity from suit because its Constitution required an express
waiver of sovereign immunity by the Tribal Council and the Council
had neither expressly waived its immunity nor authorized the vice
president to do so. Id. at 275. The court rejected World Touch’s
argument that the management company’s apparent authority to
bind the casino and the Tribe to the terms of the contract could
waive the Tribe’s immunity, noting that any waiver must be
unequivocally expressed. Id. at 276, citing Santa Clara Pueblo, 436
U.S. at 58-59.
¶13 MM&A argues we should disregard World Touch,
Memphis Biofuels, Native American Distributing, and other similar
cases because it disagrees with their reasoning. It argues those cases
employed a “flawed analysis” by relying on cases that discuss
whether a waiver’s language was express—rather than whether the
authority to waive immunity was express. However, we cannot
agree with MM&A’s suggestion that these cases confuse or
improperly extend the principle that a waiver of immunity must be
unequivocally expressed. Express authorization and express
language are two distinct but related issues, and requiring an
express delegation of a tribe’s authority to waive its immunity is a
logical and consistent application of the overarching principle
encompassing both issues: that the tribe itself must expressly
consent to a waiver of its immunity. See Santa Clara Pueblo, 436 U.S.
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Opinion of the Court
at 58; Pan Am. Co., 884 F.2d at 418. To hold otherwise would result
in waivers that could not be traced to any explicit action by a tribe.
¶14 MM&A urges us instead to adopt the reasoning of a
Colorado state court appellate decision, Rush Creek Solutions, Inc. v.
Ute Mountain Ute Tribe, 107 P.3d 402, 404 (Colo. App. 2004), in which
the Chief Financial Officer (CFO) of the Ute Mountain Ute Tribe
executed a contract that expressly waived the Tribe’s immunity. In
Rush Creek, the court disagreed with World Touch and applied
apparent authority principles to hold that, where the CFO was
authorized to execute contracts on behalf of the Tribe, and where the
Tribe’s constitution and policies were silent concerning procedures
for signing contracts or waiving immunity, the CFO could validly
waive the Tribe’s immunity. Id. at 406-08. MM&A also notes that a
Supreme Court of Nebraska decision, StoreVisions, Inc. v. Omaha
Tribe of Nebraska, 795 N.W.2d 271, 278-80 (2011), adopted the
reasoning of Rush Creek and applied agency principles, including
apparent authority, to find a valid waiver where the tribal chairman
had executed a waiver in the presence of five of seven tribal council
members.
¶15 Even assuming that applying Rush Creek’s reasoning to
this case would change the outcome of the motion to dismiss,2 we
decline to adopt its reasoning as contrary to the weight of
controlling law. In deciding whether tribal sovereign immunity has
been waived, federal law controls and cannot be diminished by the
states. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998)
(“[T]ribal immunity is a matter of federal law and is not subject to
diminution by the States.”). As noted above, we agree with cases
such as Memphis Biofuels, Native American Distributing, and World
Touch that it would be inconsistent with United States Supreme
Court precedent to apply equitable principles such as apparent
authority to defeat a sovereign’s immunity from suit. See Santa Clara
2The Nation disputes this proposition, noting that Rush Creek
relied on facts that do not exist in this case, including the official’s
authority to contract on behalf of the sovereign, and silence in the
tribe’s constitution and bylaws regarding waivers of immunity. See
107 P.3d at 404, 407.
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Pueblo, 436 U.S. at 58; Pan Am. Co., 884 F.2d at 418 (requiring tribe’s
express consent to waiver).
¶16 Moreover, as the trial court noted, Rush Creek appears to
represent the minority view even among state case law on the issue.
See, e.g., Hydrothermal Energy Corp. v. Fort Bidwell Indian Cmty.
Council, 216 Cal. Rptr. 59, 63 (App. 1985) (tribal chairman could not
waive tribe’s immunity absent express delegation of duty from
tribe); Dilliner v. Seneca-Cayuga Tribe, 258 P.3d 516, ¶¶ 17, 19 (Okla.
2011) (rejecting equitable theories as basis for waiver; where tribal
council authorized Chief to execute contracts, but not waive
immunity, express waivers in those contracts were not effective);
Chance v. Coquille Indian Tribe, 963 P.2d 638, 640-42 (Or. 1998)
(rejecting apparent authority theory and holding that, even if
contract’s language waiving immunity was express, contract not
valid where signing official lacked authority under tribal law to
waive immunity); Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108,
¶ 12 (S.D. 1998) (without clear expression of waiver by tribal council,
acquiescence of tribal officials cannot waive immunity because
“waiver must be clear and unequivocal and must issue from a tribe’s
governing body, not from unapproved acts of tribal officials”).
¶17 MM&A also raises policy concerns regarding the
requirement of an express delegation of authority to waive
sovereign immunity. It contends such a rule “would unduly expand
Indian sovereign immunity at a time when its very existence, albeit
adhered to by the Supreme Court which created it, is questioned.”
In support, it notes that the United States Supreme Court in Kiowa
Tribe expressed concern about “the wisdom of perpetuating the
doctrine” of tribal immunity from suit because it extends beyond
what is necessary to protect tribal self-governance. 523 U.S. at 758.
Nonetheless, the Kiowa court rejected an invitation to abrogate the
principle of sovereign immunity, reserving such decisions to
Congress, which “is in a position to weigh and accommodate the
competing policy concerns and reliance interests.” Id. at 758-59.
Likewise, we decline the invitation to apply apparent authority
principles to waivers of sovereign immunity in order to ameliorate
its effects, recognizing that “Indian sovereignty, like that of other
sovereigns, is not a discretionary principle subject to the vagaries of
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MM&A PRODS., LLC v. YAVAPAI-APACHE NATION
Opinion of the Court
the commercial bargaining process or the equities of a given
situation.” Pan Am. Co., 884 F.2d at 419 (responding to argument
that contract implying waiver was “trap” for unsuspecting party).
To the extent the trial court implied it would not find a valid waiver
of the Nation’s sovereign immunity based on a theory of apparent
authority, it did not err.
Request for Discovery and Evidentiary Hearing
¶18 MM&A argues independently that this action should be
remanded for further discovery and an evidentiary hearing, “at least
on the basis of actual authority.” The trial court has broad discretion
to resolve discovery matters, which we will not disturb absent a
showing of abuse. Braillard v. Maricopa Cnty., 224 Ariz. 481, ¶ 52, 232
P.3d 1263, 1279 (App. 2010); cf. Simon v. Safeway, Inc., 217 Ariz. 330,
¶ 4, 173 P.3d 1031, 1033 (App. 2007) (we review for abuse of
discretion court’s ruling on Rule 56(f), Ariz. R. Civ. P., motion
requesting further discovery before ruling on motion for summary
judgment). The court’s discretion in matters of discovery includes
“the right to decide controverted factual issues, to draw inferences
where conflicting inferences are possible and to weigh competing
interests.” Brown v. Superior Court, 137 Ariz. 327, 331-32, 670 P.2d
725, 729-30 (1983). The court abuses its discretion if it makes an
error of law or the record does not provide substantial support for
its decision. Braillard, 224 Ariz. 481, ¶ 52, 232 P.3d at 1279.
¶19 “When ‘jurisdictional fact issues are not intertwined
with fact issues raised by a plaintiff’s claim on the merits, the
resolution of those jurisdictional fact issues is for the trial court.’”
Moulton v. Napolitano, 205 Ariz. 506, ¶ 8, 73 P.3d 637, 641-42 (App.
2003), quoting Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218,
1223 (App. 1991). To resolve those issues, the court may consider
affidavits, depositions, and exhibits, and does not thereby transform
a motion to dismiss into a motion for summary judgment. Id. In
reviewing the court’s determination, we view the record in the light
most favorable to upholding its ruling, “inferring any necessary
findings reasonably supported by the evidence, and keeping in
mind that the burden of demonstrating jurisdiction lies with the
Plaintiffs.” Id.
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Opinion of the Court
¶20 MM&A argues it made a “sufficient showing to require
deferral” of a decision on the issue of the trial court’s jurisdiction.
Specifically, it notes that the Board Act clearly implied a person
authorized to execute contracts also had permission to waive the
Nation’s sovereign immunity, and that MM&A “had been engaged
in successive contracts for seven years, which the defendants
recognized, honored, and paid,” suggesting the 2006 contract had
been signed with authority. It urges that “evidence of actual
delegation by the Casino Board . . . [wa]s key to the issue of waiver.”
And it suggests the trial court’s denial of its request for further
discovery and an evidentiary hearing was contrary to the
“expectation[s]” regarding discovery articulated in Gatecliff v. Great
Republic Life Insurance Co., 154 Ariz. 502, 744 P.2d 29 (App. 1987).
¶21 Gatecliff provides that, “[w]hen the court’s subject
matter jurisdiction is challenged pursuant to Rule 12(b)(1), the court
may take evidence and resolve factual disputes essential to its
disposition of the motion,” noting that the existence of a factual
dispute therefore does not require denial of the motion. Id. at 506,
744 P.2d at 33. It also noted that a court “may . . . conduct an
evidentiary hearing if necessary” to resolve a challenge to its
personal jurisdiction. Id. MM&A concedes that nothing in Gatecliff
requires the court to hold an evidentiary hearing or narrows the
court’s discretion to control the scope of discovery. See Moulton, 205
Ariz. 506, ¶ 8, 73 P.3d at 641-42 (court has discretion to determine
whether evidentiary hearing necessary).
¶22 Before making its ruling, the trial court held a hearing
on the motion where the parties discussed the evidence that had
been submitted on the motion to dismiss and supplemental
affidavits filed by MM&A. Substantial evidence supported the trial
court’s determination that the Nation had not, by virtue of the 2006
Waiver of Sovereign Immunity Addendum, waived its immunity as
to the 2006 contract.
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Opinion of the Court
¶23 The Board Act, adopted by the Tribal Council in 2005,
stated in relevant part:
SECTION XIV. Contracts; Authority; Limited
Waiver of Sovereign Immunity; Mandatory
Provisions
1. The Board shall have the power to
negotiate and approve contracts for the
expenditures of funds within the approved
budgets of the Board, Cliff Castle Casino
and Cliff Castle Lodge and Conference
Center, subject to review by the Office of
the Attorney General.
2. The Chairperson of the Board is hereby
delegated the authority to execute contracts
approved by majority vote of the Board
subject to the requirements and restrictions
in this section.
3. No contracts obligating expenditure of
funds outside the approved budgets of the
Board, Cliff Castle Casino or Cliff Castle
Lodge and Conference Center shall be
approved without prior consent of the
Council.
4. All contracts shall to the greatest extent
possible be drafted or negotiated to include
language preserving the sovereign
immunity of the Nation.
It also provided that “[a]ll official actions of the Board shall be taken
by motion or resolution approved by the affirmative vote of a
majority of those Directors present at a meeting.” Therefore, even
assuming a valid contract could waive the Nation’s sovereign
immunity, the Tribal Council authorized contracts to be executed
only with the approval of a majority vote of the board or with the
Tribal Council’s prior consent.
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MM&A PRODS., LLC v. YAVAPAI-APACHE NATION
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¶24 Viewed in the light most favorable to upholding the
trial court’s ruling, Moulton, 205 Ariz. 506, ¶ 8, 73 P.3d at 642, the
evidence established that neither the 2006 contract nor the waiver
addendum was approved by the casino’s board or the Tribal
Council. The Nation submitted two declarations of the Tribal
Council’s Executive Secretary. She stated that, since 1992, she has
been responsible for ensuring that all council motions and their
outcomes are recorded in the minutes. She had reviewed all
minutes from Tribal Council meetings from January through August
2006, and there were no motions “to approve the Tribal Council
Chairman, The Cliff Castle Casino Board of Directors, or any other
Board member or Casino employee (including Mr. Steven Wood), to
execute an exclusive entertainment and production agreement, or to
execute a waiver of sovereign immunity addendum to such
agreement.” She also declared “there exists no resolution [in 2006 or
2007] authorizing the Nation, the Tribal Council, or any Nation
entities or individual employees to enter into a contract with MM&A
Productions, LLC or to otherwise waive the Nation’s sovereign
immunity in favor of MM&A Productions.”
¶25 A member of the casino’s board declared she had
searched all Board resolutions enacted from 2006 through 2007 and
“there exists no resolution authorizing the Board, the Chairman of
the Board, or any individual Cliff Castle employees to enter into a
contract with MM&A Productions, LLC or to otherwise waive the
Nation’s sovereign immunity in favor of MM&A Productions.” The
casino board’s Administrative Assistant further declared that she
had reviewed all board minutes from January 2006 through August
2006 and that there was no “motion for the Chairman, or any other
Board member or Casino employee (including Mr. Steven Wood), to
execute an exclusive entertainment and production agreement, or to
execute a waiver of sovereign immunity addendum to such
agreement on behalf of the Board, the Casino or the Nation, in favor
of MM&A [P]roductions.” Additionally, the Nation’s Acting
Attorney General from October 2005 through December 2006
declared that she was responsible for ensuring compliance with the
casino Board of Directors Act. She stated her office had applied a
“green sheet” approval procedure to all casino contracts, under
which her signature was required on a green form attached to all
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Opinion of the Court
proposed contracts before the casino board could vote to approve
the contract. She stated Wood was advised of the procedure, and
the 2006 contract with MM&A was not submitted to her office or
approved for consideration by the board.
¶26 The Board Act does not authorize the board to allow an
individual employee to execute contracts or waive the Nation’s
immunity. To the contrary, it prescribes a clear procedure that
requires accountability to and oversight by a majority of the board
or the Tribal Council, depending on the size of the contract.
Therefore, MM&A’s speculation that the board could have, at some
point in time not covered by the affidavits, delegated authority to
Wood to take those actions is contrary to the evidence in the record.
For the same reasons, it is not only speculative but contrary to the
evidence to suggest the Tribal Council itself would have delegated
authority to a casino employee to waive its immunity only one year
after passing a Board Act that maintains careful oversight over
casino contracts. Based on the evidence in the record, and in light of
the presumption against finding waivers of sovereign immunity,
Demontiney v. United States ex rel. Dep’t of Interior, 255 F.3d 801, 811
(9th Cir. 2001), we cannot say the trial court abused its discretion in
concluding further discovery was unnecessary to reach the
conclusion that the Nation had not waived its immunity.
¶27 MM&A additionally argues the evidence was
“incomplete” because it “did not cover the entire relevant time
period.” It notes that it attached to its complaint a copy of a 2003
waiver of sovereign immunity, which stated the “Tribe hereby
expressly and irrevocabl[y] waives its sovereign immunity from any
breach or alleged breach in connection with Tribe’s obligations and
considerations under any and all the Contract(s) between Tribe and
Producer, including but not limited to . . . Exclusive Agreement(s).”
The Nation’s affidavit evidence does not cover the time period that
would be relevant to that waiver, and the Board Act in evidence was
not effective until 2005. Therefore, we address separately whether
the trial court erred by concluding further discovery was not
necessary to determine whether the 2003 purported waiver had
waived the Nation’s immunity as to the 2006 contract.
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¶28 There is a strong presumption against finding a waiver
of tribal sovereign immunity. Demontiney, 255 F.3d at 811. Any
waiver of an Indian tribe’s sovereign immunity “must be strictly
construed in its favor.” Beltran v. Harrah’s Ariz. Corp., 220 Ariz. 29,
35-36, 202 P.3d 494, 500-01 (App. 2008); S. Unique, Ltd. v. Gila River
Pima-Maricopa Indian Cmty., 138 Ariz. 378, 383, 674 P.2d 1376, 1381
(App. 1983).
¶29 Although the trial court did not address the issue
specifically in its ruling, its implied finding that it properly could
determine the issue of waiver without collecting further evidence of
the board’s and Tribal Council’s actions during 2003 or other years
was appropriate. The 2003 waiver applied to “any and all the
Contract(s) between Tribe and [MM&A].” Although it does not
explicitly exclude future contracts, neither does it include them.
MM&A provided evidence that the casino’s former marketing
director had signed at least one contract in 2002, and it is a
reasonable reading of the waiver that it was intended to apply only
to existing contracts. Therefore, construing the waiver strictly in
favor of preserving the Nation’s immunity, a 2003 waiver signed by
one marketing director was insufficient to waive the Nation’s
immunity regarding a contract executed over three years later and
signed by a different director. Therefore, whether or not the
previous director had authority to sign the 2003 waiver would not
have affected the outcome of this case, and the court did not abuse
its discretion in determining further discovery on that issue was
unnecessary.
Disposition
¶30 For the foregoing reasons, the trial court’s judgment is
affirmed.
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