united states to study our system and to observe our system and how the lawyers and judges interact with each other and deciding the cases before us judge show is an assistant judge in the tokyo district court he is currently studying this year at the university of notre dame as a visiting scholar next to him is george to kashi o here and observe court and spent a great deal of time learning about traditional administration and we are very very pleased to have them with us they ask us questions that we probably should be asking ourselves together as the tribal parties this case is on appeal from the issuance of a preliminary injunction the injunction in joined the sovereign tribe in the tribally own corporation from litigating their claims under tribal instance and then dismiss or stay the underlying district court case the tribal parties presented a colorable claim of tribal courts or stiction in the district court upon that showing under national farmers union exhaustion should therefore be required plaintiffs a failed to identify an applicable exception to the exhaustion doctrine and the district court applied in its ruling exhaustion is particularly important here the tribal court is considering issues of tribal law and a violation of our tribal constitution the tribe itself is a party to the lawsuit ordering exhaustion fosters important federal policies including respect for tribal legal institutions recognizing the tribal courts rule in self government the orderly administration of justice and then to the development of a record in private court in the first instance its jurisdiction so that the district court on review can make its determination on the full record ordering exhaustion also avoids the procedural nightmare described in national farmers union and the absurd result this court criticised in the summer it also permits the state court in conjunction with the tribal court to conduct a teacher conference under wisconsin law which will help develop that body of law and foster comedy between the state and the tribal court bodies if the case proceeds in district court it will put the federal court in competition with the state court which will be addressing many of the same issues at the same time involving many if not all the same w will force the district court to reach issues well beyond the narrow federal question of whether the tribal court has jurisdiction over the district court or the district court plaintiffs excuse me at a minimum the current injunction and the scope of the current injunction is simply too broad we are not able to proceed against the full at all even though both stiefel in the federal court suggested that misrepresentation claim to be appropriate in trouble court and godfrey's conceded montana jurisdiction and we should be able to assert claims against godfrey as well but because of the nature of the scope of the injunction we as a travel party have been enjoined from proceeding in tribal court in any case that saybrook or is a party to you mentioned stiefel were all of staples visits to tribal land in connection with the bond transaction or were some related to the development project they were there hand in hand they were they really were all related to the bonn transaction because the bond transaction really was part and parcel with the grandslam naches project in mississippi but for example if you look at the five twenty nine zero seven date we had four members of stiefel come to trust land to do the initial pitch for the bond transaction in which the evil outlines the proposed structure of the deal and that meeting took place at the tribal center on tribal trust land that's in the dave young at deposition and it's in the supplemental appendix of page one thousand and three the second visit by steve will do young and should bilski meeting of the tribes offices to pitch two proposals again for the bond deal eleven fifteen zero seven five members from excuse me four members from stiefel and saybrook one person from saber a met at the tribes casino at the request of saybrook to kick the tires so to in front of the king tribal council to where they where they pitch the bond deal made the representations that we've identified as in our misrepresentation case and urge them to adopt the bond resolution in the tribal resolution to effectuate the bond transaction transaction so does that relate only to that document or does that trump the whole argument about jurisdiction well there's a couple of different issues in that question  selection clauses don't aren't really relevant to whether the tribal court has jurisdiction that's really the narrow federal question in front of the district court as does the tribal court with reference to federal law have jurisdiction over the nonmembers well let me i'm looking at tribal agreement five where the language seems to me to be pretty broad about the tribe expressly submit to and consent to the jurisdiction of the united states  and and in the event but only in the event that said district court fails to exercise jurisdiction in the courts of the state of wisconsin where interesting venue or otherwise proper for the adjudication of any dispute of controversy points there number one the foreign selection clause in the first instance should be considered by the tribal court has the competency has the ability to do that that that's that's the mazembe are situation where it's the court that is not identified as the proper forum to stood naked determination as to whether the case should be there in the first instance and in fact judge fletcher and tribal court has gone down that road and i started to do that analysis and it's similar in this regard that it would be sued arising out of the bond transaction the tribe has consented to venue injures stiction in the western district and west lacks jurisdiction and then the state cour originally this a couple of lawsuits ago but in the immediately preceding federal lawsuit seabrook and wells fargo and l d f acquisition sued in the western district sued the economic development corporation lost industr for claims arising out of the bond transaction very similar causes of action to the state court case currently can't say it was effective in persuading the district court at that point that it lacked federal subject matter jurisdiction  there was no federal question because they did not seek a declaration that the bond documents were valid under it or there was no diversity jurisdiction because as you drill down through the various l l seized you find incomplete diversity so that case then became essentially active in state court and they're proceeding in state court we've never said in the state court that saybrook should exhaust it state court claims arising out of the bond transaction and related to unjust enrichment misrepresentation claims against the full claims against godfrey they only have in state court two claims that relate to the bond they have a breach of the bonds against the economic development corporation claim and then they have a declaratory judgment guarantee against the tribe not of the clarity or a judgment that the guarantee is a valid document rather just a declaration that the tribe is the obligation under the bonds in the event that the d c defaults we've never said that those claims have to be litigated in the first instance in the tribal court we have other defenses we challenge the competency of the state court under federal preemption and we've challenged whether there's been a waiver of sovereign immunity and we have other defenses fraud those types of things but we've never challenge the form selection flaw in any of the documents as it applies to say brooks claims currently pending in state court they are actively litigating in the selected form what we have done is to sue in tribal court on a very narrow issue related to tribal law or gaming ordinances in our constitution because as between the state court and the tribal court it is our view that the tribal court is the only court with competency to decide those issues there's really when you look at these cases there seems to be two species of exhaustion or two contexts in which the courts consider exhaust one would be a situation like we have in all time or for example where you have competing the potential for there to be a competition on the merits between a federal court and a tribal court and the question then becomes in the absence of a pending tribal court case should the merits of the underlying litigation on the non tribal plaintiffs should they be forced to litigate or relive again in tribal court that's not our situation at all where there is a pending tribal court case and the only reason for the federal district court action is to challenge the district excuse me the tribal courts jurisdiction that's the narrow federal question and that's a very different than what we have that's that is what we have here we're not we're not arguing that say work has to go to travel quarter litigate its claims just that we have a right to litigate our claims under our constitution our laws where we're a party in our the order exhaustion it avoids the thornier issues of sovereign immunity especially on a truncated record where there was about a month's worth of discovery and there was no consideration of the allegations of fraud which the district court acknowledged would be a defense of the enforceability of the waiver the sovereign immunity so even if we reach the bigger question we still can never res enforceability the way it was a sovereign immunity on this record so every feature of the exhaustion doctrine a satisfied here and to me it's a prime candidate to go back to tribal court just on that issue develop the full record seabrooke its plenary review in the district court on the question of tribal court jurisdiction thank you i'm happy to continue about if the court's interested in why we have a colorable claim under various theories of i think under under any theory we have presented a colorable claim of tribal court jurisdiction we have whether it's a treaty right and a retained right to property owners right to exclude montana one month handed to ample evidence in the record even in the truncated record to suggest a colorable claim of tribal court jurisdiction and once we present that claim the district court should stay its hand order exhaustion and either dismiss or stay and in either event  never needs to reach the issue of our sovereign immunity a bigger fraud those are all issues by the way that are being litigated currently in state court and as between state court and tribal court the state court is deprived of the opportunity to conduct a t conference with the tribal court judge to allocate the jurisdiction so that it can decide which court is going to should decide what issues and what has  state court cases been selected by the operation of the injunction as the venue and our constitutional claims don't have a venue to be heard no one will be able to decide those claims me please report my name is charles burton i represent save reclined investors can be funded actually coles the bonds that are at issue here l d f acquisition also represent wells fargo which the court at least i believe the court is familiar with the underlying facts saybrook is the party of my fifty million dollars in good faith to a tribal party that was already in debt they had already spent the money on an unwi thought non tribal casino in natchez before they came to us we bailed them out let me say prick word about the other parties as well because mr cable wants to speak on behalf of  stiefel it's claimed was the financial advisor know at least as the initial purchaser of the bonds we have a claim against them in state court for selling us sponsored violated their warranties we also have a claim against godfrey in state court because they gave opinion letters that said we would not have any difficulties getting federal approval so as this court knows from the earlier wells fargo case those opinions turned out to be terribly terribly wrong and we relied upon so we are in a somewhat different situation than the other two parties here and frankly in the preliminary injunction hearing before judge conley mr hanson conceded that the only reason their tribal court case hardest of tribal court case is because we sued them in state court in wisconsin he wanted to complete resolution but make no mistake the issue in tribal court is exactly the reverse of our attempts to collect on the bonds that we bought  good faith seven years ago from the tribal e t c economic development corporation let me turn to i think what is should be subject to no misunderstanding mr hans talk about various visits with tribal lands there is a stipulation in the record of the supplemental appendix ten eighty six ten eighty seven it talks about the entire extent of the saber parties visit a november fifteenth got bailiffs one of our goals briefly visited the reservation of the tribe this isn't testimony it's a stipulation by us and the tribe together this visit occurred at least two weeks before the parties agreed to enter into exclusive negotiations regarding the bond purchase this visit predated the existence of l d f acquisition the entity created to hold the bonds which was formed on or about january tenth two thousand and eight  part also predated any commitment to loan money to the tribe or b b c which occurred on january eighteenth two thousand and eight by more than two months and it goes on it says he was there for five hours it talks about the few individuals he spoke with it repeats again this is a stipulation that there was no negotiation and it repeats that bayless is brief visit was for no purpose other than to gather information bayliss did not gauge in any negotiations of the tribe and or corporation bayless never had been on the reservation before and he never returned the scope of the indian tribal jurisdiction is not long jurisdiction it's not personal jurisdiction at all is quoting from planes commerce and he says in pavia these quoting planes commerzbank of supreme court opinions tribal sovereignty it should be remembered as a sovereignty outside the basic structure of the constitution the bill of rights does not apply to the indian tribes indian courts differ from traditional american courts in a number of significant respects and nonmembers get no part in tribal government they have no say in the la and regulations that govern the tribal territory consequently those laws and regulations may be fairly imposed on nonmembers only if the non member has consented either expressly or by his actions even then and this is an act alex the regulation must stem from the tribes inherent sovereign authorities to set conditions upon entry preserve travel self government or control internal relations none of those factors or  present here so the notion that there is some colorable basis for jurisdiction doesn't exist based if nothing else on the precedence of this court and the stipulated facts but let me say another word about the against our documents seeking to have them held invalid and until two thousand and thirteen after the federal court held that it had no subject matter jurisdiction because of lack of federal question a lack of diversity we have filed obviously we filed with the initial lawsuit we tried to amend that to bring the real parties in interest saybrook into that we were denied that opportunity to file a new lawsuit and there was no federal jurisdiction and we have a state lawsuit which did it jurisdiction only after all that was done all those lawsuits have been filed to try to file its tribal action and the only way it could do that w constitution it amended struggle constitution in after judge conley's ruling that he had no federal jurisdiction specifically to allow jurisdiction over any claims involving the tried as a party and they set up this procedure where they could name the judge protest in one case only and the judge they chose was a well known activist who says we don't need to follow the constitution and indeed in the opinion that  reform selection laws many of those not all of them but many of them say exclusively in federal court worst jurisdiction is lacking in federal and state court but not in trouble for and it's said again and again and again all time are clocks about the importance of honoring indian contracts and honoring their intent because if you can't rely on contract with them no one will do business with this was not an  here took place off the reservation we have free will never have to be in tribal court we agree that the court federal courts or failing that the courts of wisconsin will govern if those contracts can't be honored then really nothing can i don't have a is interested in sovereign immunity that's an issue that's very important to us we've covered in the briefs extensively there are particular want to highlight the chevron argument judge ripples footnote fifteen and wells fargo set off a chain of curiosity that continues to this day and we've tried to express our view on that in the briefs i'm happy to discuss it but i also see that my time is very near up we hope the court will honor these contracts look at what the parties actually stipulate the facts are and find that no exhaustion is necessary no jurisdiction lies counterclaim in the federal court action that's pending as well they are they are in fact proceeding with the claims against the full number to the claims of misrepresentation alike are not even before the tribal courts so they have full access to immunity waiver cannot be reached as the enforceability at this time on this record because of the lack of the record related to the supposed fraud but the lack of a full record as to fraud is not the fault of anyone but the trouble parties the port in and at the start of this litigation in the western district sent out procedures to all the parties and all the parties recent were aware of the circumstances that the pullin or injunction hearing would be related and would deal only with those issues that were part of the proposed finding of facts of the party's proposed findings the facts were submitted by six by all of the parties by all of the plaintiffs and after that the tribal parties and submitted there is including what they called their proposed defendant's rebuttal fax during that time the there had been a number of assets management contracts nowhere nowhere in the proposed findings of fact by the tribe was there ever any use of the word fraud or mr presentation it does february twenty first three weeks before the hearing gate in an e mail the issue of fraud was first raised to counsel for the plaintiffs and the court properly did not allow that to proceed at that point and allow them to introduce evidence but it would only be evidence but only relevant to the extent and only to the extent that it was in the proposed findings of fact if that had not been the case it would have been an entirely different the if that if if the proposed findings of fact by the tribe had included fraud allegations there would have been substantially more discovery and there would have been a hearing that would have included not just argument with the court and then some some  declarations of some of the parties here would have had live witnesses would have been a completely different circumstance that was not there was anticipated here the only one who caused this problem was the tribe they still have the ability to do is that that as as a district will recognize when this comes back it becomes time eventually for this to go to a permanent injunction they will have all the opportunity in the world to argue this is a preliminary injunction they were right they had the opportunity to raise it they did not i want to be clear that there was no fraud by steel here and what it is not even before the court because if we had had the opportunity to show this we've shown that it's just simply not true but that was not what was before the court i'd like to was asked to come to the reservation lands and trust lands on one occasion by the truckload but the key to the montana exception the first exception is that the tribal court action must be an attempt to regulate the conduct of the defendant in this case stiefel if in no way attempts to regulate appearing on tribal land to answer questions and to not pitch but to propose to the tribe that they would help them with their investment there isn't there is nothing in the trial court action that tries to regulate the conduct of stiefel all they did it was interesting they threw allegations of fraud in the tribal court complain but never asked for really didn't ask the court to void the bond documents because of fraud by steeple didn't ask the tribal court to give misrepresentation damages didn't ask for reformation the contract didn't ask for recision the contract based on anything that stiefel did all these they made allegations about this if this were the case that wouldn't end in that he supposedly would give montana jurisdiction of the for under the first exception that would mean that any time that the tribe has a contract that would not be subject to tr there was no steeple conduct that is in any way related to the to the trial court action and also it's important to remember that montana's first exceptions requires an entry into a consensual relationship when you have to look at the consensual relationship and what was the conceptual the consensual relationship at stake here the consensual relationship was steven will be the initial purchaser of these bonds with the understanding that if there is any dispute arising out of these b it will be resolved not in tribal court it will be resolved in either federal court or the wisconsin state courts that was the consensual relationship that we're talking about you have to look at that they way sovereign immunity waive exhaustion and they took that they entered into a consensual relationship this was not a transaction bonding tribal lands they applied wisconsin law they made representations that the transaction did not violate any ordinance and did not violate their constitution this was not a tribal matter that is subject to exhaustion i just want to be just addresses very very briefly under exhaustion the key is not the pendency of trouble court action that's not what's at stake the question becomes it's the futility that's involved here and the futility of in this case is that the there is a clear waiver sovereign immunity and a clear way but waiver of travel court jurisdiction particularly in the us and that's the key here this is an action this action relates to the bottom's now they have raised a case with which i'm also familiar which is  actually resolve it but it was a very different kind of case because it was not an action on the bond at all and it was not an action to in any way take the tape to avoid those bond got going it was an action for damages against evil for suppose and mr presentation had nothing to do with the bond documents it dealt with all everything called side of things very different type of situation here it's very clear it's an action on the bo excluded that's in the bonds themselves it's in limited offering as well it is excluded it would be futile for us to have to go to tribal court go through the entire trial of this matter through trouble and then come back and have to do behalf of god korean congress to you to reverse that portion of judge connally's order that did not include got a free account i don't intend to comment on it on the exhaustion issue except to say your honour's that i really urge you to read all higher because i think all time are basically controls the exhaustion question and that are all climbers it's clear that if you've got a clearly expressed form selection clause like we have in the bonds and in the tribal agreements which are the only two documents that are really an issue here then there's no place for exhaustion because the parties have agreed on the formal and therefore the exhaustion doctrine the rationale for the exhaustion jock and falls we think the judge of got off track with regard to the issues surrounding got free and con because he really didn't apply as he should have this court's ruling in significant sagada is another key case here and i really urge you to to read that case because i think it answers a lot of questions and it simplifies these issues to the point that we really get down to what the district court should have been decided in this case rather than all of the other issues that the district given up teaches first of all that form selection clauses like the ones we have here are in fact express waivers of sovereign immunity you don't have to look at these other documents or you don't have to look at the enforceability of the documents because by entered into the form selection clauses like the exclusive the tribal court of jurisdiction the tribe has  basically waived sovereign immunity if you create a right to sue what if you look at the language you read the language in the body it clearly creates a right to sue in the form selection clauses in these children forums you create a right to sue doesn't exist in the test that the courts have used and most recently in adabas this court i think to adopt a very pragmatic approach to this the question is you know closely related are very intertwined in the in the transaction and you look at issues of affiliation and you look at issues of mutuality and like like in the adams case that the discourse decided it's evident that this this case all of these issues should be decided in one  his discretion but this gets back to sagada because the reason why judge connelly felt that maybe he was at least for now going to exercise supplemental jurisdiction was because he believed that where i think that the tribe is really muddling this up it's clear under those cases that a foreign selection clause served by notwithstanding allegations of fraud or notwithstanding that the underlying documents may be void because of in this case the ignorant rule and the only way you can you can get around a foreign selection clause under the clear hold of this court the clause itself is infected by fraud and there's absolutely no allegation that there was any misrepresent representation or any fraud involved in the formation of these of these forms lushin clauses so as a result of that the form selection clauses stand regardless judge connelly didn't have to get into all these issues about the course the bill the documents he didn't have to worry about suppose he did suppose he did have to get into those documents is that really make any difference with respect to the and i think you got what you get what he should have done he should away the fact that he had a duel little extra work assuming that even had to get into these documents against the concepts of judicial efficiency which is that's the touchstone or one of the touchstones of supplemental jurisdiction jurisdiction when not being conned was even a part of these documents and the only relief being sought in tribal court as as the pleading stand the only relief there are signals of declaratory judgment that the documents are invalid form selection clauses because his observation was how can the tri bring godfrey and con into a case in tribal court that they shouldn't have you know brought up to begin with because they agreed in the underlying documents that the only forms would be federal or state court how can they bring got crme khan into a case like that and then turn around and say the got and claim they got being conned isn't closely related or extra probably tied up in the in the transaction such as they ought to be able to take advantage of the form selection clause what sense does that make so you kind of danced around this but i want to be clear on this what was the purpose of your waiver of any argument that the trial court lack selection clause that it was it was actually clear on its face in the bonds and in the in the tribal agreement that the actions could only be brought in state or federal court exclusive of tribal court and that we were if we read the cases and we cited all the cases to you to your honor's that you have is can read and come to your own conclusion but as we read the cases those who are in selection we should have the benefit of those form selection clauses because we were closely related and it was we had there was a reasonable expectation they were involved in the negotiation of the underlying documents the court said hard as hard hard too hard to imagine someone be more closely related then them than to the underlying transaction so if there's ever a reason to apply this doctrine of pull solely related and extract oblique interwoven to someone who's not party to the agreement it seems to me lawyers or other parties who are quickly involved in the situation should be able to to benefit from those clauses and we just concluded that because of our relationship with the tribe and are involved in the transaction we get into those issues on the montana side compared to where these form selection clauses should've left us from a from a jurisdictional stance point that that that we were fine and and the idea that there's no federal jurisdiction that a judge kindly concluded there was no federal jurisdiction no federal question with regard to godfrey because we were aligned in the form selection clause which is a contract i think completely overlooked your honour's the fact that  the issue of tribal sovereignty or the jurisdiction the tribal court is a federal question clearly no question about that and so if you're dealing with a question of a waiver whether or not these form selection had been way oh well sure well yes but really that should be subject to the exhaustion rule and should be decided by the tribal court in the first instance and it's going to the party the party can't waive the tribal court's jurisdiction we don't have any power to waive the jurisdiction of the court we can consent and stipulate in certain contracts which we did to the venue of certain places and but we cannot confer or deny a court its jurisdiction that exists separate and apart from any contract the the enforcement of form selection clauses in a group of contracts that have already been decided by the district court in a prior litigation raise only questions of state law are not a federal question they don't present a federal question the only federal question pending in front of the district court in this case is whether the tribal court has jurisdiction that's it form selection clauses are not at issue and to the extent they are there being exercised by the litigants in state court they are getting the form selection clauses they bargain for we're not asking them to exhaust those remedies in tribal court at all which  and supplemental jurisdiction district court if there was if there was a claim to take supplemental jurisdiction over potentially that would matter but there's no there's one claim stiefel godfrey saybrook wells fargo all plaintiffs all one cause of action in the district court a decade a declaratory judgment request that the tribal court lacks jurisdiction over them nothing else there is no contract claim there is no other request  for declaratory judgment as to the political year and force ability of any of these documents to the effect of the form selection clauses there is one question that the district court has to answer under federal law does the tribal court have jurisdiction over the plaintiffs in the district court that's it once we show a colorable claim to montana jurisdiction the district court has to stay its hand just remit exams to district court didn't see it that wouldn't do with respect you got for it i don't understand how the district court concluded that there would be supplemental jurisdiction because there's no other claim to the extent such a claim might invoke the form selection clauses in the effect of those private state law government contracts on us  exhaustion well again this is the distinction between two courts with competing jurisdiction for the merits of the close of the case and the court and all time are looked at whether it should  compared all time or to national farmers union and i will mutual and say where there is no challenge where there is no pending court case challenging the jurisdiction of the tribe the court does often required under those circumstances answers not i think that all time or could have been decided the exact same way with no form selection clauses even in the absence of a form selection clause there would not been there not been a merits back in tribal court are cases very different the the true the federal district court here is not supposed to be considering the merits of what's pending in state court it's only supposed to be considering whether there's tribal court jurisdiction you mention those in dar in that in that case the court said that the court could enforce a valid form of selection clause even if the closet shelf was void is there any similar case with respect to clauses waiving sovereign immunity whether the non form court would consider the sovereign immunity issue yes i believe nicorette might be on point on that although i've not considered that exact question the point of those number i think is that it is the non form court that looks at the form selection clause in the first instance and with respect to the waiver of sovereign immunity and whether it obtains because the documents are valid invalid or even if the form selection plazas as mr clarke suggests survive voiding war and force ability still you would go to the tribal court for a determination as the enforceability the form selection clauses it gets to decide that in the first distance because it's not related to tribal court jurisdiction if the first decide the what the district west first decide whether the whether the tribal court has made a colorable claim or whether we have made a and i submit to you that the evidence is overwhelming even on the truncated record that we have well with respect to god through being you know subject to some sort of inconsistent judgment because if it can be proceeded against and tribal court and not the others if the if the injunction is vacated as it should be then that concern is gone and everyone is in equal footing in tribal court i'd like to talk a little bit about some of the issues saybrook raised the extent of scott bayless as a visit on trust land there's no rule that says five or six hours is insufficient amount of time there's no rule that says you have to negotiate he was there conducting business on trust land and they were conducting business on trust land to convince us to enter into a financing and to subject our gaming regulations and subject to our constitution we are required by federal law to greg lake gaming we enacted ordinance concert ordinance stipulations in the trial in the district court as to what occurred we don't have a full record on that but even if they didn't engage in negotiations bayless was there to determine whether the casino was adequate security before he was willing to enter into the bond transaction it was he was there to be regulated and subsequently they did enter into the bond transaction it was it's a highly regulated area on the trial question is the sceptically not specific to that visit no but there's more than that saber also has a security interest in the tribal in the casino assets and casino revenue that's an ongoing current contractual right that saybrook enjoys macon and the and they have a right under those documents to enter the trust land seize casino assets they have that right currently existing in a document and under our right to exclude in our treaty rights and our own our regulatory rights we can challenge those rights it's better to do it now in a prospect of looking declaratory judgment action in tribal court than to wait for them to enter the trust land to be a score to the reservation borders we should be able to avoid that by resort to the tribal court there's also you know so you've got a visit to the tribe you've got security interest currently in travel assets on trust land in the casino and you've got the ability in these documents as they currently exist to enter trust land and seize assets we have a right to regulate that relationship and those parties i see my time's up but