deal with the district court's denial of the injunction of an injunction to enjoin the state court proceeding that mr becker has filed against the tribe i will be arguing those issues  miss real barer goby arguing eighteen four zero seven two which is the case in which the district court issued a preliminary injunction to enjoin the tribes tribal court suit against to begin by emphasizing what this case is not about this is not a case that presents a novel or difficult question of first impression and nor is it a case in which there are no controlling you united states supreme court or ten circuit precedents there are multiple political precedents but in our view the u s district court and the utah state court have not acknowledged and are not abiding by those controlling precedents could you tell us what the status of the state court litigation is at this time the state has voluntarily stayed that case until this appeal is resolved and they stated when i'm well we were we were like about a week away from going to a jury trial and so earlier this yes actually the district court had the district court in this case the federal district court was ordered by the tenth circuit to conduct a hearing on the tribes motion to enjoin the state court action so the u s district court had entered it t r o until that hearing could be held then the state court court action was held in abeyance until the ruling was issued which was at the end of april the tribe in this case is seeking what was promised to the tribe in one nine hundred eighty one that is an injunction to enforce seven commonly referred to as you three does this is that apply here or is are you reading it too broadly i don't believe that we are reading it too broadly because the very i mean for one reason and that is that the tribe had adopted the tribal law in order code cover both civil law and criminal law and the state of utah and two of its counties and some of  level and the court but the court recognized that the tribal court had the right to exercise both a simple before plan a plea was the phrase used by the district court the full panoply of its tribal authority within its reservations without interference by the state of utah to enforce what to enforce its civil law all of its governmental authority how does that apply here to this contract case well because this is a contract that was in or been to in the reservation on the rez at tribal headquarters mr becker was hired the tribe says is an employee he says is an independent  as any court determined factually where this contract was executed and performed yes we have put into the any court made a ruling i know there's evidence in the record but has any court ruled on that fact question yes the huge indian tribal court has made a ruling on that it found that the court was the contract was in or didn't to at tribal headquarters on the rosary issue ok as the state court made a ruling on that i believe that the state court has recognized that it was made on tribal headquarters what the state court has done has said immunity in other words the court has equated the waiver of sovereign immunity to a vestment jurisdictional authority and that's where we have a disagreement i would no do we look at a contract case and utah law whether or tribal law where the where the contract is not only initially executed but also where it is performed yes and this this contract obviously in for a perform on the reservation now i do believe that there was a provision in the contract that there was evidence that mr becker was everywhere doing a lot of lang's all over the place in other states even well i mean he did occasionally travel off of the reservation yes yes he did and he was allowed to work four day work week but his office he controlled he was hired to run an entire tribal department and do you think it's significant where the not only where the contract was executed but also where it was performed to determine who has jurisdiction here if it's on tribal lands and probably the tribe if it's off tribal lands and probably the state yes but there has been no dispute that the contract itself was executed at tribal and porters it was at a meeting tribes business committee which is its governing no dispute i thought there was yes there a finding is there a fin to me like you there was some evidence before judge wanted and maybe there was some argument about it but she there's no ruling on that issue well what judge water was that to the best of my recollection what you found contends that he spent a lot of time away from the reservation but i mean the fact of the matter is that how could anyone a department manager manage a travel department held side of the reservation his job duties were on the reservation he was hired to implement one of the tribal ordinances that was attached as an exhibit to the contract at the cut but the agreement that's at the heart of this lengthy lot of litigation in that agreement he's referred to as an independent contractor well and he has explained he has testified under oath that the reason why he was hired as an independent contractor and not an employee the tribes ordinance says that it have that the tribal court has authority for anyone who conducts business with the tribe so i think i've i've used up my first ten minutes i'm going to  good morning good morning thomas in a real effort on behalf of the appellant's all refer to them as the tribal parties regarding the injunction after initially ordering the exhaustion of tribal court remed including any appeals the district court so a spawn day interrupted that exhaustion process and determined that the exhaustion rules of not apply because according to the district court the becker contract quote is valid and tribal exhaustion which was explicitly waived in the contract is both unnecessary and futile and there are at least two problems with the district court's conclusion that i would like to discuss today one the tribal exhaustion rule does apply as the tenth circuit concluded in two thousand and seventeen and as stablished by the supreme court and to the district courts reasoning here is not a recognized exception to that tribal rule in united states supreme court ruled in national farmers union insurance company the crow tribe of indians that the analysis of jurisdictional limitations that federal law places on tribal courts should be conducted in the first instance by the tribal court itself the supreme court then said that exhaustion of tribal court remedies is required before any such claim may be entered by a federal court this is known as the tribal exhaustion rule the supreme court recognized the policy reasons behind the rule one it furthers federal policy of supporting tribal self determination and tribal self government to it promotes the orderly administration of justice three it provides other courts with the benefit of tribal court expertise on substrings diction matters i want to quote a couple of the supreme court cases that i think directly speak to this point in national farmers union and the court said tribal exhaustion ensures that the forum whose jurisdiction is being challenged is provided the first opportunity to evaluate the factual and legal basis for the challenge in iowa mutual of the plot the supreme court said tribal authorities over the activities of non indians on the reservation lands as an important part of tribal sovereignty civil sure a section over such activities presumptively lies in the tribal court unless affirmatively limited by a specific treaty provision or a federal  statute and here the courts have recognized some exceptions to the tribal exhaustion rule by my count there are five three and national farmers the first one being three where exhaustion would be futile because the lack of adequate opportunity to challenge the tribal courts jurisdiction for that the tenth circuit recognized in a system case where it is clear that the jurisdiction and that judicial proceedings with serve no purpose other than just on delay and the fifth one recognized by the tenth circuit is when it is plain that no federal grant provides for tribal governments governance of nonmember conduct on land covered by the montana rule and importantly the supreme court in iowa mutual said that alleged incompetence of tribal court is not among the exceptions to the exhaustion rule as that would be contrary to the congressional policy of promoting tribal court development the tenth circuit applies these exceptions  it typically will not apply the exceptions so long as tribal courts can make a colorable claim that they have jurisdiction none of the exceptions apply here and what's important is the district court did not rule that any of the exceptions apply here what happened is the district court concluded that exhaustion would be unnecessary and few tile and to us this seems to be a misstatement of that third exception that the supreme court articulated in national farmers in if exhaustion would occur here tell me what would follow then the tribe tribal courts ruling what are the next steps that should occur in your view so the tribal court issued a ruling that covered most of the tribes complaint against mr bakker the court previously had bifurcated i believe was three of the count from the four thick fourth count and said we're going to decide these three counts first so that those counts were decided on by the tribal court and then they were subject to a state so that's where the tribal court was paused but what can happen is because under the law in order code the tribal court as a court that reviews it up the appeals level if one of the parties wish to appeal that decision that the tribal court entered tribe could even venture down that path or any of the parties decide to appeal or how the court was going to consider the rest of the tribal court case the district court here entered the a junction and we look at the chronology of what happened when here if you have this ongoing litigation in state court and it's gone to the point that it's being set for trial when in the chronology did the tribal court enter its ruling court begins to proceed or had the tribal court started its were before the courts were going at the same time so for example in february on february fourteenth there was a hearing before a judge water and the district court he initially denied mr becker's injunction on february sixteenth that the tribal court had hearings on the tribes motions for summary judgment and then later in the month  but that was through a sponsor in this course case he had originally said you know i'm going to not issue the injunction against the tribal court exhaustion does apply here there's a consensual relationship and that needs to play out even through but it doesn't even matter let's see the smith v moffitt and brown versus washer housing authority we didn't brief that because it wasn't an issue but the tenth circuit has said in both of those cases that the absence what what is your view of what jurisdiction we have what is or statute you're relying on for federal jurisdiction here well under twenty eight u s c thirteen thirty one the federal courts have jurisdiction to determine whether a tribal court has exceeded the bounds of tribal court jurisdiction in light of federal treaties or statute you reserve to get you to follow up where i thought you were going but we steered you elsewhere on the futility exception that you were about to tell us i think why in your view it was improperly employed here can i just get you to finish that thought thank you judge i'd that's that's great because i we do want to make that point here the district court seemed to misstate the third exception he said it's unnecessary and few of an adequate opportunity to challenge here mr becker has actually challenged tribal court jurisdiction three times in the motion to dismiss and he also has the avenue of tribal appeals that we discussed earlier thank you morning your honor is nancy sylvester for the animal barry lawrence i only have a couple points to make and that's probably pretty clear from our brief that we don't have a lot to say here this is really a dispute between the parties and then just that  would like to just make a couple points and then see the rest of my time to mr i some the first one is just lawrence has determined that the state court has jurisdiction to proceed as you've seen has determined the same if this  and judge lawrence stayed the case february twentieth twenty eight and what what state court jurisdiction is relied on here i'm sorry i'm not sure i understand is the basis for the state courts jurisdiction by judge lawrence as regards where the agreement was executed and performed it was a mention about where it was executed his rulings were really limited to the legal issues he didn't get into any jurisdiction i think you're and i haven't closely looked at that question i was starting to try to go through his opinions to figure out if he had actually gotten to that but my understanding was he went primarily to the legal issues but again he went through you know we've got a contract action jurisdiction well and i guess that's where that butts up against judge watts as opinion because they judge lawrence as he went through the case law determined that the reservation all right so then if you're off of the reservation then you're in the state of utah and then the question becomes all right can you sue the tribe and you can sue the tribe until now unless they have sovereign immunity so then you get down to the waiver of sovereign immunity when i guess what are the state courts biggest concern at this point is if we have a contract action that actually says that the utah that there could be if it could encompass on reservation conduct and so i the courts are really our state courts the biggest interest is when would be we'd be able to get involved in these kind of cases if if not this one when you have a really clear waiver that's followed tribal law then when i think i'll see the rest of my time to  good morning your honor saluted by some representing lynn bakker who was with me up the table may it please the court i would like to start answering the questions that i've heard the first is is there any record evidence of where the contract was entered the only evidence that i'm aware of about that is that the contract itself says that it was approved by resolution on the reservation in utah i'm not aware of any record evidence as to where it was executed as to where it was performed there is a lot of record evidence about that first it is an independent contractor agreement and b terms it provides that the contractor this is section four of the agreement the contractor shall determine when where and how to perform those activities necessary to fulfill that position and then it says we're an appellate court we don't make findings of district court other trial courts tribal courts i don't find there's any funding as to where it was x so we're just sort of a draft here is far as jurisdictions concerned is that right i don't think so at all your honor i don't about forty five percent of mr becker's efforts were conducted off the reservation throughout the united states the reason we think the place of execution is not important is that it's a contract that states that it's governed by utah law the law the courts of utah have general jurisdiction there's no doubt that there's minimum contacts that give them jurisdiction over this action we think the only remaining question that could apply to state court jurisdiction is whether anything will issue supersedes or either of two circumstances where congress has so authorized or where the tribe has waived sovereign immunity that was applied and by the way it said that the immunity that it was  address and was for immunity for matters both on and off the reservation c n n picked up that language and noted that the building at issue there was off the reservation though owned by the tribe but it picked up the kiowa language and said the sovereign immunity in the waiver of their of that we're analyzing applies in commercial contract cases whether the conduct or the execution or the performance is on reservation or off reservation our position your honor is that the location of execution for a commercial contract between a tribe and on the indians is not dispositive of whether a state court has jurisdiction this state court has jurisdiction partly because the contract says that it does and i'll get into those terms and partly because the supreme court says that in general state courts have jurisdiction where congress has given authority and where where is that happened do you agree that the language just section thirteen twenty six is quite broad right and it doesn't seem to distinguish tribal consent for special hour in limited situations it doesn't seem to matter what the scope right of the of the jurisdictions your honor that makes sense we are a lying crime prince principally on the language of both come and see now that say that and i again i hurts my brain to say jurisdiction and sovereign immunity in the same sentence because sovereign immunity should be quickly followed with the word defense or preceded with the word defense of sovereign immunity shouldn't it isn't  defense we doesn't create jurisdiction we think that both kyl n c l says that you can create jurisdiction in a state court by waiving sovereign immunity and consenting to that jurisdiction a specific document that is so it just be if you have a contract with the tribe and they say whatever they say in this agreement then the state court has jurisdiction your honor i haven't mentioned one of the most important this special election problem that judge maria is talking about is not applicable here how do we get round that it isn't applicable applicable the specially election only applies to the seating of general jurisdiction in other words making state courts and that was that was judge watt ups interpretation of the kennerly case but there's no case law that supports that position i of the indian tribal economic development contract encouragement that that act is extraordinarily important here in part because the legislative history of that act includes the statement that with that amendment contracts with indian tribes don't require secretarial approval  even if they are for personal services and for contracts for personal services performed on tribal land letter that just goes to secretarial approval that doesn't again get his jurisdiction i'm sorry and that just goes to whether or not you have to have the approval of the secretary of interior for your contract and you're saying in your case you didn't have to have it and i think maybe not enacted to encourage contracts between tribes and non indians the problem before the act was the statute says that you have to get secretarial approval effect of anything relative to indian tribes and the congress found that was unworkable and interfering with commerce and so they amended that statute which by the way had retroactive light shed on one seventy seven and twenty one two the result of which is under that act now it is absolutely clear that  known secretarial approval is required of this contract as to jurisdiction again seen l c n l doesn't say we're only creating jurisdiction for independent contractors relating to off reservation or on either one it applies to both and it says that state courts have jurisdiction over tribes  that's right there in the beginning second page c n l enterprises but yes that's true but their holding isn't limited to that at all nothing in most cases we you're saying yes we read the language of the contract is saying for independent contracts it is irrelevant whether the building is being built on the reservation or off the question is it think about it from another perspective the state courts are the work courses of indian related contracts that is think about what contracting would be if indians had if state courts had no jurisdiction over indian related matters there are only two other alternatives the states one is federal court judge briscoe you asked about jurisdiction here i believe your honor wrote the opinion in two thousand and fourteen holding that i was a good opinion oh it was and so of course we accept that is correct so what that case illustrates is that federal courts are generally not available to adjudicate indian tribe related matters for two reasons one of which sure i want to emphasize the other is there's no diversity jurisdiction if an indian tribe is a party and as your honor emphasized if the federal issues and there are plenty are only defenses that doesn't create thirteen thirty one jurisdiction but i thought about it but when but when judge hearts in the subsequent opinions has that well in the twenty fourteen opinion we were looking very narrowly at this issue that we've been discussing and now we're looking at something different and i should go back into the pond and see what's in there right so is it was there something wrong there or are we well i think you honor that i'm assuming we're bound by that decision this court and i think it was anyway two thousand and sixteen i think our understanding of that is that where the federal issues were sort under the well we did complaint rule where only anticipated federal defenses that didn't create jurisdiction this court held in an opinion by judge hearts on and on a later appeal that there was jurisdiction here because there was an issue of whether the federal court could enjoin the state court and that issue itself created the federal jurisdiction and the court held also  through judge hearts that the action we brought mr becker brought created jurisdiction for similar reasons so we we think we are at the point where it is clear that this court now has jurisdiction but you notice that the substance isn't before the court we still don't know where we can have adjudication right now or in three courts which there's something wrong with that picture i  think in the relating he court in november seven twenty seventeen which i think was a correction of some sort of earlier one judge  opening paragraph writing for the court said we hold that the tribes claim that federal law preclude state court jurisdiction over a claim against indians are rising on the reservation he accepted that fact a claim against indians rising arising on the reservation i am still not certain any court that can make factual findings here we believe that that determination is irrelevant for the reasons i've stated and besides that there's no record evidence as to where this contract was entered into ok well then who  and why the state court you would say and why ok so leaving the federal court for the moment they're now turns out to be federal jurisdiction according to the tenth circuit recently so i suppose we could bring counterclaims adjudicate the whole thing in federal court we hope that's not necessary it's an enormous waste of the state's resources and of our resources so then let me move to tribal court tribal court clearly has no jurisdiction because it's ordinance prohibits any client any claim against the tribe or the business committee period both under the old ordinance and the new ordinance and the contract says that this must be adjudicated if not in federal court then in a court of competent jurisdiction and clearly the contract says a court of competent jurisdiction has to be a place where you know a contract dispute you can get a full determination of fact and law relating to the agreement so the statute prohibits could never could have been a court of competent jurisdiction big as the ordinance prevents any claim against the tribe in tribal court it also prevents any claim by the tribe against mr becker unless mr becker was an employee how do you determine how does the court determine whether he was an employee the answer is you look at the contract the contract says it's governed by state law utah state law makes it clear that a contract at ten different ways and times says this is an independent contractor agreement and not an employment agreement is an independent contractor agreement so we're left with either no court which by the way reminds me of the chronological question that your honor asked let me let me answer that the distribution of the net revenue of three affirmed the dismissal of that for lack of jurisdiction and shortly thereafter in december of fourteen we brought the state court action it was not until the tribe was dissatisfied with what was going on in the state court that they tried to sue in tribal court just say that another way for three and a half years the tribe presumably having read the contract that says we waive any any requirement of tribal law that you bring the action in tribal court we waive any written requirement of exhaustion we waive any requirement of the application of tribal law they didn't even dream of the tribal court until three and a half years after the litigation started and that was twenty months after they had been in the state court or should again where in three different courts at this time should we abstain what about the extension doctrines cases going on to court the same time much less three and particularly when we have a state court litigation that has been pursued for these many years normally we we say younger if we have steyn what happens now in your into court system three well i think it could turn it depends on the terms of the abstention and in part the answer that relates to the rest of the chronology the state case was set for trial in mid february of this year because of the mandate of this court to judge water ups at the last moment i think within a week before the trial was to start he read that mandate as saying that he should enjoin that and he enjoined that then there was a question and whether that was permanent or whatever that became because the state court held that it would not move forward until direction from this court  so oh so to finish so the theme of the work course of state courts we understand we understand there's been a long running dispute in those cases called you versus utah we understand there's bad blood we didn't understand those cases were going on we just sued on a contract we've we've spent a lot of time reading those contracts i mean those cases those cases don't create preclu i mean it's not the same parties they don't create stari decisis if anything they create some authority but for the life of me i can't find that they create any authority that has any impact on this case so we think they're irrelevant let me just mention in the time i have left there are arguments that tribal court oh no let me also talk about secretarial approval if these if this contract is not void we believe that it gives jurisdiction to the state courts of utah maybe colorado to about any state anyway state courts either that or it's simply not enforceable we think that ironically what is that issue in this case in the narrow sense is whether mr becker will be paid what he was promised but ironically the general issues because of the history of this case the arguments that have been made the defense is the climbs this case will have an enormous impact on the ability of people to contract with indian tribes and indian tribes to contract outside of their tribe in the whole country and ironically we believe that if the tribes positions here namely that they can five years into it say the section seventeen corporation applies even though for five years they said it didn't and they can say that there's this unpublished tool opinion and that there's this ordinance that's not publicly available if that is the way indian contracts live it's depressing to that possibility that's the exact reason section eighty one was amended in two thousand to encourage it's called the contract encouragement that it was an act to encourage contracts between tribes and non tribes if there's no state jurisdiction there's virtually no place to adjudicate and enforce and interpret those contracts and that will discourage contracts one final thing about secretarial proveable they argue the normal case requires that the normal case doesn't create any common law it interprets a statu in closing let me mention that the i a e a examined this question in its july two thousand and seven letter and read you know underlying agreements and concluded we conclude that the restated agreement and that's the operating agreement and the reason that's relevant here is the revenues distributed were distributed according to that agreement is not subject to the b a review and it creates no interest in tribal lands thank you thank you thank you ruling the tribes partial summary judgment motions and here is what the tribal court found and i will read from it that mr becker quote was a tribal employee or independent contractor he entered into an icy agreement with the tribe to manage and develop the tribes energy and mineral resources the icy agreement was negotiated in or to into on the you into an indian reservation he was given an office in the tribal business complex in fort to shane the resources that he was to manage and develop our own land belonging to the tribe and held in trust for the tribe and its matter what do we do what do we do with  posing counsel's point that under the ordinance that determines the jurisdiction of tribal court they have no jurisdiction over this type of dispute well i think misrule bird was prepared to answer that the let me answer it this way that mr becker the tribal court certainly does have jurisdiction over the tribes complaint against mr bakker and in that we have in in our complaint we have asked the tribal court to declare that that is an illegal contract under both federal law and tribal law now if and  made a preliminary or interlocutory ruling to that effect so if that contract is no longer valid because there is that contract that has a waiver of sovereign immunity and it mr it becomes a moot point as to whether or not the tribal court has jurisdiction over a counter claim that mr becker may wish to assert because if the contract is invalid there is no waiver of sovereign immunity and then reflected in their ordinances or a prism lucian's of handling such matters what they do as a practical matter is they refer any claims that are made against the tribe itself or the business committee they were for those two a independent judge that is hired and who proceeds to handle that in a regular judicial format but i would like to go back and say that mr isom is also incorrect in saying that there is no red evidence of record to say where the contract was in or didn't to the tribal court's ruling was based upon the declaration of i remain kutch who was the chair woman of the tribes governing body during a portion of the time that mr becker was employed for the tribe her declaration says as about her personal knowledge that mr becker's contract was negotiated and in or been to at the tribal headquarters complex in four to shane so there is record evidence of that so you have you have both represented representation or representatives of the tribe signing the contract and mr becker also signing the contract there are no grounds for abstention that wasn't sort of in the parameter of issues that have been raised but we did raise it in our one of our motions for injunctive relief before the district court you will find those do state interest predominate over federal issues and what this tenth circuit has has held consistently is that when an indian tribe is involved there are issues of federal law and th predominate over the issues of state law and so younger abstention is not a pluggable i'm going to turn it over to misrule oh i think one other thing i want to mention just very quickly the u s supreme court has held that public indians are there any cases actually saying that though i mean i think cases you rely on that wasn't that wasn't the issue in those cases well but it wasn't california the cabazon ban because california is one of the appealed to a the state and the supreme court said nope p l two eighty does not apply to try to sell so i didn't read it quite that way but but that is your that's the strongest case you have well i mean you would say that we wouldn't even get to the step i mean the statute just doesn't apply is what you're saying yes and it's clear from the text of the senate should itself the conferral or consent to jurisdiction is in subsection a and it does not use the word indian tribes where is it does down in the prescription which is under some paragraph are you aware of any cases other than this potential case i guess where it would be applied to indian tribes i'm not aware of  appeal that was admittedly dicta that's a possible interpretation and what mr becker seeks to have this court do is what the district court and i think what we heard the state court did is to independently analyze th tribes jurisdiction ordinances independently analyze the contract and substitute federal and state judgment for the tribes tribal court analysis of the tribes jurisdiction law under thirteen thirty one is limited to determining whether federal law has divested the tribe of its tribal court civil jurisdiction and that goes back to national farmers there has been no exhaustion of tribal court remedies at this time and third the tribal court is the proper court to interpret tribal law including the purported waiver and the language in the alleged contract and we so you know are you saying that both the federal court and the jurisdiction what we're saying is be tribal court has jurisdiction to decide the contract dispute with regard to the thirteen thirty one jurisdiction we do think that judge watt ups in and joining the parties from pursuing the tribal court has exceeded what the federal court does what the federal courts do is decide whether there is any federal limitation on the tribal courts exercise of its jurisdiction and i do want to point out that courts have held that the tribal court is the and i do want to finally emphasize that it's not necessary for the tenth circuit to take up the legality of the contract if this court determines that there's a colorable basis for tribal court jurisdiction and second that the exhaustion not happened in tribal court ok thank you thank you thank you all for your arguments this morning the case is submitted court is in recess until nine o'clock tomorrow morning