PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, a federally recognized Indian Tribe and a federally chartered corporation; UINTAH AND OURAY TRIBAL BUSINESS COMMITTEE; UTE ENERGY HOLDINGS, a Delaware LLC, Plaintiffs - Appellants,

v. BARRY G. LAWRENCE, District Judge, Utah Third Judicial District Court, in his individual and offi cial capacities; LYNN D. BECKER, Defendants - Appellees. No. 18-4013

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CV-00579-CW)

________________ _________________ Frances C. Bassett and Thomasina Real Bird (Thomas W. Fredericks and Jeremy J. Patterson, with them on the briefs), Freder icks Peebles & Morgan LLP, Louisville, Colorado, for Plaintiffs-Appellants. David K. Isom, Isom Law Firm PLLC, Sa lt Lake City, Utah, for Defendant-Appellee Lynn D. Becker. Nancy J. Sylvester (Brent M. Johnson, with her on the brief), Admi nistrative Office of the Courts, Utah District Court, Salt Lake City, Utah, for Defe ndant-Appellee Judge Barry G. Lawrence. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 12 ________________ _________________ Before MORITZ , BRISCOE , and EID , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ This appeal marks the latest chapte r in a long-running contract dispute between the Ute Indian Tribe of the Ui ntah and Ouray Rese rvation (the Tribe) 1 and Lynn Becker, a non-Indian. Th e contract concerned Becker’s work marketing and developing the Tribe’s mineral resources on the Ute reservation. Almost seven years ago, Becker sued the Tribe in Utah state court for alle gedly breaching the contract by failing to pay him a percentage of certain revenue the Tribe received from its mineral holdings. Later, the Tribe filed this laws uit, challenging the st ate court’s subjectmatter jurisdiction under federal law. The dist rict court denied the Tribe’s motion for a preliminary injunction against the state- court proceedings, and the Tribe appeals. We reverse and hold that th e Tribe is entitled to inj unctive relief. The district court’s factual findings establish that Be cker’s state-court claims arose on the reservation because no substantial part of the conduct supporting them occurred elsewhere. And because the claims arose on the reservation, the state court lacks subject-matter jurisdiction absent congressi onal authorization. Bu t contrary to the

1 As in prior iterations of this dispute, this appeal is brought not only by the Tribe but also “the Uintah and Ouray Trib al Business Committee (the Tribe’s elected governing body)” and “Ute Energy Hold ings, LLC (whose 100% owner and sole member is the Tribe).” Ute Indian Tribe of the Uint ah & Ouray Rsrv. v. Lawrence , 875 F.3d 539, 540 n.1 (10t h Cir. 2017). “Because the appellants raise identical arguments, we will generally refe r to them all as the Tribe.” Id. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 23 district court’s ruling, 25 U.S.C. § 1322 does not provide such authorization. Section 1322 requires tribal consent to state-court jurisdiction, a nd tribal consent is obtained only by holding a special election under 25 U.S.C. § 1326. Here, the Tribe never provided such consent. Thus, the Tribe suc ceeds on the merits of its claim that the state court lacks subject-matter jurisdicti on. The Tribe further satisfies the other requirements for obtaining injunctive relief. Accordingly, under the particular circumstances of this appeal, we close this chapter in Beck er’s dispute with the Tribe by ordering the district court to perman ently enjoin the stat e-court proceedings. Background The contract dispute at the heart of this appeal has spawned la wsuits in federal, state, and tribal court. Our court alone has issued four separate opinions. See Becker v. Ute Indian Tribe of the Uintah & Ouray Rsrv. , 770 F.3d 944 (10th Cir. 2014) ( Becker I ); Becker v. Ute Indian Tribe of the Uintah & Ouray Rsrv. , 868 F.3d 1199 (10th Cir. 2017) ( Becker II ); Ute Indian Tribe of the Uintah & Ouray Rsrv. v.
Lawrence , 875 F.3d 539 (10th Cir. 2017) ( Lawrence ); Becker v. Ute Indian Tribe of the Uintah & Ouray Rsrv. , 11 F.4th 1140 (10th Cir. 2021) ( Becker III ). 2 Those opinions provide detailed accounts of both the underlying contract dispute and the dense procedural history that followed. We therefore provide an abridged version of this history, covering only the events relevant to the ap peal before us.

2 Becker III was initially consolidated with this appeal, and the cases were argued together. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 34 Becker’s formal relationship with the Tribe began in 2004 , when the Tribe hired him to help market and develop th e Tribe’s vast mineral resources. During Becker’s time working for th e Tribe, those resources were located exclusively within the borders of the Ute reservation. Becker and the Tribe executed a contract, which we refer to as “the Agreem ent,” under which Becker woul d receive for his services an annual salary and 2% of certain reve nue the Tribe accrued through its various mineral holdings. After Becker and the Trib e terminated their relationship in late 2007 or early 2008, a dispute arose over th e Tribe’s purported failure to pay Becker the 2% interest. So in 2014, Becker sued the Tribe in Utah stat e court for breach of contract, breach of the implie d covenant of good faith a nd fair dealing, and unjust enrichment. 3 Judge Barry Lawrence denied the Trib e’s motion to dismiss for lack of subject-matter jurisdiction and eventu ally set the case for trial. In June 2016, about a year after Judge Lawrence denied th e Tribe’s motion to dismiss the state-court action, the Tribe file d this federal lawsui t against Becker and Judge Lawrence, challenging in part the state court’s subject -matter jurisdiction under federal law. Initially, the district court determined that it lacked federal subject-matter jurisdiction to consider the Tribe’s challenge and dismissed the case. We reversed and remanded fo r further proceedings, holding that “the Tribe’s claim— that federal law precludes state-court juri sdiction over a claim ag ainst Indians arising

3 Becker initially brought these claims in federal court, but the district court dismissed them for lack of federal s ubject-matter jurisdiction under 28 U.S.C. § 1331, and we affirmed. See Becker I, 770 F.3d at 948–49. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 45 on the reservation—presents a federal ques tion that sustains fe deral jurisdiction.”
Lawrence , 875 F.3d at 540. On remand, the Tribe reasse rted its position that the st ate court lacked subjectmatter jurisdiction in a motion for both preliminary and permanent injunctions against the state-court proceedings. Rather than take up those motions, the district court sua sponte directed the parties to addr ess a different issue, resulting in an order that purported to avoid consideration ofthe Tribe’s motions on supplementaljurisdiction grounds. 4 The Tribe then filed this appeal, but we abated it, instructi ng the district court to follow Lawrence ’s mandate and “decide the Tribe’ s request for injunctive relief against the state[-]court pro ceedings.” App. vol. 8, 1541. The district court ultimately denied a preliminary injunction, finding that the Tribe was unlikel y to succeed on the merits of its claim that the Utah state court lacks jurisdic tion. In so doing, it reasoned that even assuming Becker’s claims involve events that occurred on the reservation, a

4 The district court may have mi sinterpreted our statement in Lawrence that on remand, it “should address in the first in stance whether the Tribe’s claims for declaratory relief fall within its supplemental jurisdicti on.” 875 F.3d at 548. As the Tribe pointed out below, the only declarator y claims “that concei vably require[d] the exercise of supplemental jurisdiction [we]re the Tribe’s alternative claims” about the Agreement’s validity and s overeign immunity. App. vol . 3, 510 (emphasis omitted). Supplemental jurisdiction wa s not required for the Tribe’s primary claim, that the state court lacked jurisdiction; Lawrence held that federal- question jurisdiction existed for that claim. See 875 F.3d at 543–44. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 56 federal statute authori zes state-court jurisdic tion over such claims. 5 See 25 U.S.C. § 1322. We then lifted the abatement. But fo llowing oral argument, we abated the appeal for a second time, ordering the dist rict court to make supplemental factual findings on the issue it had merely assumed—whether Beck er’s state-court claims arose from events that occu rred on the reservation. The district court eventually issued supplemental findings 6 and certified the supplementa l record to this court. Having lifted the second abatement, we now resolve the Tribe’s appeal. Analysis We review the district court’s decisi on to deny a preliminary injunction for abuse of discretion. See Crowe & Dunlevy, P.C. v. Stidham , 640 F.3d 1140, 1157 (10th Cir. 2011). The district court abuses its discretion if it “commits a legal error,” if it “relies on clearly errone ous factual findings,” or if “t here is no rational basis in the evidence fo r its ruling.” Id. (quoting Davis v. Mineta , 302 F.3d 1104, 1111 (10th Cir. 2002)). To obtain a preliminary injunction, the m oving party must show that (1) it is substantially likely to preva il on the merits; (2) it will suffer irreparable harm without

5 Four days before the district court ru led, the Tribe moved to sanction Becker and his counsel for making a llegedly disparaging comments about the Tribe. In this appeal, the Tribe argues that “the district court erred in denying” this motion. Aplt. Br. 51 (capitalization omitted). Yet it acknow ledges that “[t]he district court has never ruled on the . . . motion,” and it suggests that the district court erred in failing to do so. Id. Because the motion remains pending in the district court, it is not ripe for our review and we do not resolve it here. 6 We discuss those findings , as relevant, below. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 67 the injunction; (3) this th reatened injury outweighs the harm that granting the injunction may cause the oppos ing parties; and (4) the in junction will not adversely affect the pub lic interest. Becker II, 868 F.3d at 1202. Here , the district court concluded that the Tribe failed the first requirement—it had not shown a substantial likelihood of success on its claim that fede ral law precludes the state court from exercising jurisdiction over Beck er’s lawsuit. On appeal, the Tribe challenges that conclusion, arguing that it can show even more than a likeli hood of success on the merits—it can show actual success on the merits. The Tr ibe further argues that it satisfies the remaining injunction requirement s and thus asks, as a remedy, that we order the district court to gr ant a permanent injunction.
I. The State Court’s Jurisdiction The Tribe argues that the Utah state c ourt lacks subject-matter jurisdiction over Becker’s lawsuit as a ma tter of federal law. Admi ttedly, federal law usually plays a limited role in assess ing whether a state court ha s jurisdiction because state courts, as courts of general jurisdiction, can hear a wide variety of cases. 13 Charles Alan Wright & Arthur R. Miller, Fede ral Practice and Procedure § 3522 (3d ed. 2021) (“Most state courts ar e courts of general jurisdic tion, and the presumption is that they have subject matter jurisdiction over any controversy un less a showing is made to the contrary.”); cf. Aldinger v. Howard , 427 U.S. 1, 15 (1976) (“[F]ederal courts, as opposed to state tr ial courts of general jurisd iction, are courts of limited jurisdiction marked out by Congress.”). But this general jurisdiction does not necessarily hold true when a case involves a tribe or its members. Instead, state Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 78 courts’ “adjudicative authority over Indian s for on-reservation conduct is greatly limited by federal law.” Lawrence , 875 F.3d at 542. These limits reflect a longstanding fede ral policy—enforceable against the states under the federal government’s plenar y and exclusive constitutional authority “to legislate in respect to Indian tribes”—of “lea ving Indians free from state jurisdiction and control.” Id. at 541–42 (first quoting United States v. Lara , 541 U.S. 193, 200 (2004), and then quoting McClanahan v. State Tax Comm’n of Ariz. , 411 U.S. 164, 168 (1973)); see also Williams v. Lee , 358 U.S. 217, 220, 223 (1959) (noting that Congress has “act ed consistently upon the a ssumption that the [s]tates have no power to regulate th e affairs of Indians on a rese rvation” and that judicial precedents “have consistently guarded the authority of Indian governments over their reservations”). Thus, when a case brought against a tribe or its members “aris[es] from conduct in Indian country,” state courts lack jurisdiction “absent clear congressional authorization.” Navajo Nation v. Dalley , 896 F.3d 1196, 1204 (10th Cir. 2018). On the other hand, such author ization is generally not required if the claims stem from events occurring off tribal land. 7

7 We say “generally” because specific treaties and fe deral statutes limit statecourt jurisdiction over specific off-reser vation claims “that might otherwise be brought in state court.” 1 Cohen’s Handbook of Federal Indian Law § 7.03(1)(a)(i) (2019). And of course, ev en if a state court has jurisdiction over such claims, tribal sovereignty may inde pendently prevent it from u ltimately adjudicating them. Id. (noting that tribal sovereign immunity “bars suits against tr ibes in state court, even for cases involving off-reservation conduct”); see also Michigan v. Bay Mills Indian Cmty. , 572 U.S. 782, 785 (2014) (declining to revisit “prior decisions holding that, absent [congressional abrogation or waiver], Indian tribes have immunity even when a suit arises from off-reservation commercial activity”). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 89 Accordingly, to assess the Tribe’s argument that the state court lacks jurisdiction over this dispute, we consider (1) whether B ecker’s claims arose on the reservation; and (2) if they did, whet her Congress has authorized state-court jurisdiction over such claims.
A. Where Becker’s Claims Arose The Supreme Court has never set out a precise standard for determining whether a lawsuit or a claim arose in Indi an country. Even so, its precedents make clear that the inquiry requi res examination of where th e material factual events underlying the plain tiff’s claims occurred. 8 In Williams , for example, a non-Indian sued a Navajo couple in state court to rec over a debt stemming from goods sold at the non-Indian’s store located on tribal land. 358 U.S. at 217– 18. The Court held that the state court lacked jurisdiction over that cl aim, which it described as “aris[ing] on an Indian reservation.” Id. at 218; see also id. at 223 (noting that plaintiff “was on the [r]eservation and the transa ction with an Indian t ook place there”). And in Fisher v. District Court of Montana , the Court stated that an adoption proceeding between

8 The Tribe sometimes frames this inquiry in terms of “minimum contacts,” a phrase typically associated with the standard for personal jurisdiction. Int’l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945) (holding th at states may exercise personal jurisdiction over out-of-state defendants with “certain minimum contacts with [the forum] such that th e maintenance of the suit does not offend ‘traditional notions of fair play and substan tial justice’” (quoting Milliken v. Meyer , 311 U.S. 457, 463 (1940))). But whether the Ut ah state court may assert personal jurisdiction over the Tribe is distinct from the i ssue we face here—whether fe deral law deprives the state court of subject-matter jurisdiction. See 1 Cohen’s Handbook of Federal Indian Law § 7.03(1)(b) n.15 (2019) (noting that jurisd ictional bar “against st ate courts hearing actions that arise on the reservation is broader than the [personal-jurisdiction] requirement that a dispute have mi nimum contacts with the forum”). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 910 tribal parties who resided on a reservation c ould not be brought in state court because the proceeding was “appropriately characteri zed as litigation arising on the Indian reservation.” 424 U.S. 382, 389 (1976) (per curiam). In doing so, it noted one party’s failure to argue that “any substantial pa rt of the conduct s upporting the adoption petition took place off the reservation.” Id. ; see also id. at 389 n.14 (“[I]t appears that none of the acts giving rise to the adoption proceedings occurred off the reservation.”). For some claims, determining that the material conduct occurred on tribal land is a straightforward task. A tort claim based on a slip-and -fall injury at a casino on a reservation, for instance, clea rly “aris[es] on Indian land.” Dalley , 896 F.3d at 1200, 1204–05. So does a laws uit “springing from [an] on-reservation automobile accident[].” Crawford v. Genuine Parts Co. , 947 F.2d 1405, 1408 (9th Cir. 1991). We cannot so easily classify Becker’s claims as arisi ng on the reservation, however, because the district court’s supplemental fact ual findings suggest that at least some of the underlying events took place off the reservation. As a result, we assess the district cour t’s factual findings to determine whether any “substantial part of the conduct supporting the [claims] took place off the reservation.” 9 Fisher , 424 U.S. at 389; cf. also 1 Cohen’s Handbook of Federal Indian

9 In so doing, we review the district court’s factual findings for clear error. See Crowe & Dunlevy , 640 F.3d at 1157. Whether those findings establish that Becker’s claims arose on the reservation, however, is a legal question we consider de novo. See Norton v. Ute Indian Tribe of the Uintah & Ouray Rsrv. , 862 F.3d 1236, 1242 (10th Cir. 2017) (noting de novo review of legal conclusions in prelimin ary-injunction appeal). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1011 Law § 6.01(5) (2019) (“Where activities occu r partially within a nd partially outside Indian country, and a substantial part of the activity takes place outside, courts have generally upheld nondiscriminato ry applications of state ju risdiction.”). In a contract case like Becker’s, this inquiry involves several factors, including where the parties executed, negotiated, and performed the contr act; where the contract subject matter is located; and where the parties reside. See R.J. Williams Co. v. Fort Belknap Hous. Auth. , 719 F.2d 979, 985 (9th Cir. 1983). When weighing these factors, we “evaluat[e] each [one] according to its re lative importance with respect to the dispute.” Id. The district court’s findings establish that the parties ex ecuted the Agreement on the reservation. The district court f ound that the Tribe’s Business Committee Chair signed the Agreement at tribal headquarters on the reservation, citing undisputed statements to that effect from two witnesses. As for Becker, the district court concluded it was “unclear where [he] executed” the Agre ement. Supp. App. vol. 3, 25. But the record reveals no such uncertainty. True, Beck er himself testified that he did not recall where he signed th e Agreement. But he also specifically testified that he and the Ch air signed the Agreement at the same time. Supp. App. vol. 2, 483 (stating that duri ng conversation with Chair, “ we signed the Agreement” (emphasis added)). Thus, gi ven the undisputed evidence th at the Chair signed on the reservation, the only reasonable inferen ce is that Becker also signed on the reservation, and the district court cl early erred in conc luding otherwise. See McDonnell v. City & Cty. Of Denver , 878 F.3d 1247, 1256–57 (10th Cir. 2018) Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1112 (factual finding supporting district court’ s preliminary-injunction analysis was clearly erroneous “[b]ecause there [wa]s no record support for [it]”). Because both parties signed on the reservation, the place- of-execution factor favors concluding that Becker’s contract claims arose on the reservation. The place-of-performance fa ctor likewise supports the conclusion that Becker’s claims arose on the reservation. Th e district court interpreted the record as inconclusive on where the Tribe perform ed, explaining that “[n]o evidence was submitted to suggest that [it] performed [its] obligations on, or off of, [t]ribal [l]and.” Supp. App. vol. 3, 24. That statement is puzzling given the district court’s recognition that, “[b]ecause the Tribe is not a natural person,” its conduct “must be interpreted through its . . . ordi nances, resolutions, and actions.” Id. at 6. Such conduct necessarily occurred on the reservation where, as the district court also recognized, the Tribe conducts its business from tribal hea dquarters. Thus, absent any contrary evidence, we fail to see how the Tribe could have performed (or failed to perform) its contractual duties from anywhere but the reservation. See Sw. Stainless, LP v. Sappington , 582 F.3d 1176, 1184 (10th Cir. 2009) (“[I]nternally inconsistent findings constitute clear error.” (quoting John Allan Co. v. Craig Allen Co. , 540 F.3d 1133, 1139 (10t h Cir. 2008))). As for Becker, the district court found that he devot ed a substantial amount of time to working both on and o ff the reservation. We take no issue with the district court’s factual findings on this point. The district court es timated that Becker worked off the reservation “[a]pproximately half” or “[a]t least half” of the time, either Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1213 working remotely (rather than in his on-reservation office) or traveling out of state or to other Utah cities for business meetings. Id. at 23, 25. Becker’s appellate brief points to a similar figure and emphasi zes this off-reservation work. Yet as the district court acknowledged, a ll that off-reservati on work served the Tribe’s minerals interests wh ich were located entirely w ithin reservation boundaries. For example, when Becker attended meetings in other states, he did so “to effectively market and monetize [the Tribe’s] minerals ,” which “were located on [t]ribal [l]and.” Id. at 22. The same is true for meetings Becker attende d within Utah but off the reservation, which were “devoted to issues ‘relating . . . to . . . the Tribe’s surface or mineral estate within the exterior boundaries of the reservation.” Id. at 23 (quoting Supp. App. vol. 2, 490). Thus, the natu re of Becker’s duties diminishes the significance of Becker’s off-reservation work . Moreover, at least half of Becker’s time was devoted to working on the reservation. Finally, we find the location of the Ag reement’s subject matter especially significant. See R.J. Williams , 719 F.2d at 985 (“When a c ontract concerns a specific physical thing, such as land or a chattel, the location of the thing is regarded as highly significant.”). The Agreement c oncerned Becker’s work marketing and developing tribal mineral assets located ex clusively within the reservation; as the district court put it, “[a]t all times relevant to this matter, the Tribe did not acquire or own oil, gas, or mineral interests in lands off of” the reservation. Supp. App. vol. 3, 5. And as mentioned, while Becker may ha ve performed some ta sks off tribal land, his actions were always in furtherance of his role managing those resources. This Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1314 factor overwhelmingly suppor ts the conclusion that Beck er’s claims arose on the reservation. To summarize, both parties signed the Ag reement on the reservation, and the Tribe necessarily performed its duties there. And crucia lly, even thou gh Becker performed his duties off the reservation about half of the time, his work was always in service of his role mana ging tribal mineral resources located on the reservation. For these reasons, we conclude that no “s ubstantial part” of th e conduct supporting Becker’s claims occurre d off the reservation. Fisher , 424 U.S. at 389. Becker’s case is therefore “appropriately characterized as litigati on arising on [an] Indian reservation.” Id. B. Whether Congress Authori zed State-Court Jurisdiction Because Becker’s claims against the Tr ibe arose on the reservation, the Utah state court could exercise jurisdiction over the dispute only with “clear congressional authorization.” Dalley , 896 F.3d at 1204. The district c ourt determined that 25 U.S.C. § 1322 supplies such authorizat ion. As explained in more detail below, that statute allows states to acquire ju risdiction over “civil causes of action arising within . . . Indian country” and involving Indian parties. 10 § 1322(a), (b). But state-court

10 More precisely, the statute applies to claims arising in Indian country “between Indians or to which Indians are parties.” § 1322(a). “Because this language refers only to individual Indians,” it argua bly does not apply to suits against tribes themselves. 1 Cohen’s Handbook of Fede ral Indian Law § 6.04(3)(b)(v) (2019); see also Lawrence , 875 F.3d at 546 n.4 (acknowledging th at “there may be a question whether [§ 1322] applies to suits against tribes, as opposed to individual Indians”). Indeed, the Tribe argues as much in this appeal. The dissent likewise submits (and would find dispositive on the § 1322 issu e) that “§ 1322 addresses only suits Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1415 jurisdiction under § 1322 “require s certain prelitigation action.” Lawrence , 875 F.3d at 545–46. The Tribe argues that one such pr elitigation action is tribal consent; that is, a tribe must agree in a dvance to a state’s assumption of § 1322 jurisdiction. And because the Tribe has never consented to Ut ah courts exercising § 1322 jurisdiction, the Tribe contends, that statute does not s upply the Utah state c ourt with jurisdiction over Becker’s case. We agree. States may only assume jurisdiction under § 1322(a) “with the consent of the tribe occupying the particul ar Indian country . . . which would be affected by such assumption.” 11 § 1322(a). A neighbori ng provision, 25 U.S.C. § 1326, specifies the procedure for obtai ning a tribe’s consent: “[T]he enrolled Indians within the affected area” must “accept such juri sdiction by a majority vote of the adult Indians voting at a special electi on held for that purpose.” If a tribe has not expressed its consent by holding a special el ection, a state’s cour ts cannot exercise § 1322 jurisdiction. Kennerly v. Dist. Ct. of Mont. , 400 U.S. 423, 429 (1971) (per curiam) (“[T]he tribal consent that is prerequisite to the assumption of state

involving individual Indians, not [t]ribes.” Dissent 10. We need not consider this issue: Regardless of whethe r § 1322 applies to suits agai nst tribes, it does not apply here because—as we explain in the text—the Tribe did not consent. 11 Congress added the tribal-consent requirement in 1968 and made it applicable to all future assumptions of civil jurisdiction by states. See Washington v. Confederated Bands & Tribes of Yakima Indian Nation , 439 U.S. 463, 493 n.40 (1979) (“The 1968 legislation provides that [s]tates that have not [yet] extended . . . civil jurisdiction to In dian country can make future ex tensions only with the consent of the tribes affected.”). The tribal-consent requirement applies to Utah because it did not pass legislation accepting § 1322 jurisd iction until after the 1968 amendment. See Lawrence , 875 F.3d at 546 n.4. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1516 jurisdiction . . . must be manifested by ma jority vote of the enrolled Indians within the affected area of Indian country.”). Here, Becker does not suggest that the Tribe ever held a special election accepting Utah ’s assumption of § 1322 jurisdiction; nor does any record evidence suggest th at such an el ection took place. See Lawrence , 875 F.3d at 546 n.4; 1 Cohen’ s Handbook of Federal Indi an Law § 6.04(3)(a) & n.49 (2019) (noting that “Utah passed legi slation accepting jurisdiction subject to subsequent tribal consent” but that “no tr ibes . . . have consented to the state’s jurisdiction”). And the absenc e of a special election for ecloses the possibility that § 1322 applies because the Tribe has not provided the necessary consent. The district court resisted this straightforward conclusion by accepting Becker’s argument that a special election is not always necessary for a tribe to consent to the exercise of state jurisd iction under § 1322(a). Specifically, it found that although a tribe must conduct a speci al election before it can consent to “permanently authorize the state to assume global jurisdiction over [ it],” it need not hold a special election before it can “selectively consen t”—in a contract like the Agreement, for example—“to a state’s ex ercise of . . . jurisdiction” over a specific legal action. App. vol. 15, 3729–30 (emphases added). In other words, according to the district court, a tribe must hold a special election if it “intends to surrender all of its own jurisdiction over tribal matters to a state” but need not do so if it instead intends simply to “waive[] . . . its sovereign immunity over selected matters” in particular litigation. Id. at 3727. Based on this view, th e district court reasoned that the Tribe’s “likelihood of success on the meri ts” rests not on whether it held a special Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1617 election authorizing Utah st ate courts to assume jurisdiction under § 1322 but on “whether there is a valid selective waiver of the Tribe’s sovereign immunity in [the Agreement].” Id. at 3734. The district court then held that the Agreement validly waives tribal sovereign immunity, thus supplying th e Utah state court with jurisdiction over Becker’s clai ms. The district court’s anal ysis is flawed in several significant respects. First, we agree with the Tribe that the district court’ s interpretation is inconsistent with the explic it statutory text. Section 1326 makes clear that “[s]tate jurisdiction acquired pursuant to this subchapter . . . shall be applicable in Indian country only where the enrolled Indians within the affected area . . . accept such jurisdiction” by holding a special elect ion. § 1326 (emphases added). Congress included § 1322 in the same st atutory subchapter as § 1326, so jurisdiction acquired under § 1322 can apply in Indian country “only where” the Tribe has held a special election accepting such jurisdiction. Id. The use of the limiti ng term “only” conveys that a special election is a necessary event that must occur before a state court may assert § 1322 jurisdiction. See Merriam-Webster’s Collegi ate Dictionary 867 (11th ed. 2003) (defining adverbial use of “only” as “solely, exclusively”); Shell Oil Co. v. Manley Oil Corp. , 124 F.2d 714, 715 (7th Cir. 1941) (“The word ‘only’ is a limiting and restrictive term . . . and in th[is] sens e means ‘solely’ or the equivalent of the phrase ‘and nothing else.’”). Yet the district court’s interpretation would allow a state court to assert such jurisd iction despite the nonoccurrence of this necessary event, so long as the tribe has waived sovereign immunity. Because th e district court’s Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1718 permissive construction of § 1326’s special-e lection requirement r eads “only” out of the statute, we decline to adopt it. 12 See Dalley , 896 F.3d at 1215 (noting that courts generally “give effect to all statutory provi sions, so that no part will be inoperative or superfluous—each phrase must have distinct meaning” (quoting Chevron Mining Inc. v. United States , 863 F.3d 1261, 1283 n.15 (10th Cir. 2017))). The district court’s interpretation al so contradicts the Supreme Court’s controlling decision in Kennerly , 400 U.S. 423. There, the Court held that a Montana state court lacked jurisdiction over a non -Indian’s lawsuit against several tribe members to collect a debt in curred on that tribe’s reserva tion. 400 U.S. at 424, 429– 30. The tribal government had passed an or dinance granting state courts concurrent jurisdiction over civil cases involving tribe members name d as defendants. Id. at 425. The Court considered whether this ordinan ce satisfied the tribal -consent requirement. Id. at 428–29. After quoting § 1322 and § 1326 in full, the Court determined that “the meaning of these provisions is clear: [T]he tribal consent that is prerequisite to the assumption of state jurisdiction . . . must be manifested by majority vote of the enrolled Indians within the affect ed area of Indian country.” Id. And because the

12 We also reject the district court’ s suggestion that § 1326 does not apply because it “relates to a tribe’s ability to independently relinquish to a state the tribe’s jurisdiction over tribal matter s, whether or not the stat e has accepted the federal government’s jurisdiction.” A pp. vol. 15, 3727. Again, this suggestion is contrary to the express language of the statute. The opening words of § 1326 explicitly identify the subject to which it applies—“[s]tate jurisdiction acquired pursuant to this subchapter.” Such jurisdiction, the statute says, “shall be applicable in Indian country only where” a special election occurs . § 1326. Thus, § 1326 addresses the circumstances in which states may apply the jurisdiction transferred to them by the federal government elsewher e in the subchapter. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1819 tribal ordinance “d[id] not comport with the explicit re quirements of the Act” for obtaining tribal consent, the Montan a state court lacked jurisdiction. Id. at 429. The district court attempted to distinguish Kennerly by highlighting statements in the majority opinion about selective cons ent, statements the majority offered in response to the dissent. 13 But a close reading of Kennerly reveals the flaw in this approach. Justice Stewart’s dissent in Kennerly suggested that the majority’s opinion would “reduce[] the [self-govern ment] options available to [tribes] with respect to state[-]court jurisdiction.” Id. at 431. The dissent further speculated that “reservation Indians must now choose between exclus ive tribal[-]court jurisdiction on the one hand and permanent, irrevocable state jurisdiction on the other.” Id. Although the Kennerly dissent offered no explanati on for this all-or-nothing interpretation, the Kennerly majority explained that the dissent had inferred “from the express allowance for selectiv e state exercise of jurisdic tion” in § 1322 that Congress somehow intended “to exclude selective tr ibal consent to state exercise of jurisdiction.” Id. at 430 n.6. The majority rejected this inference, clarifying that “th[e] case present[ed ] no question concerning the power of the Indian tribes to place time, geographical, or other conditions on the ‘tribal consent’ to state exercise of jurisdiction.” Id. at 429 (emphasis added). Instead, the Court reiterated that it was “presented solely with a question of the procedures by which ‘tribal consent’ must be manifested under the [statute].” Id. (emphasis added). In other words, the Kennerly

13 The district court did so without input from Becker, who did not discuss, or even mention, Kennerly when responding to the Tribe’ s motion for injunctive relief. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 1920 majority left open the possibili ty that tribes could consen t to state-court jurisdiction

over some cases a nd not others. Nevertheless, the district court here stretched the Kennerly majority’s suggestion that § 1322 may allow selective tribal consent to mean that § 1326’s special-election procedure is only a prerequi site to state-court jurisdiction when a tribe “globally” consents to such jurisdiction. App. vo l. 15, 3730. But even if Kennerly ’s dictum supports a tribe’s ability to selectively consent to state-court jurisdiction, its holding explicitly reinforc es how this consent must be expressed— through a special election following § 1326’s particular procedures. See Kennerly , 400 U.S. at 429. And it is undi sputed here that the Tribe never held a special election to allow Utah state courts to adjudicate any civil caus e of action arising on the reservation, much less Becker’s lawsuit against the Tribe. Next, as the Tribe asserts, the distri ct court conflated tribal sovereign immunity with subject-matter jurisdiction. To support its conclusion that the Tribe’s purported waiver of sovereign immunity rendered the special-election requirement inapplicable, the district court quoted S upreme Court caselaw noting that “[a]s a matter of federal law, an Indian tribe is subject to suit onl y where Congress has authorized the suit orthe tribe has waived its i mmunity.” App. vol. 15, 3732 (emphasis added) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc. , 523 U.S. 751, 754 (1998)). Becker likewise emphasizes th is statement on appeal, noting also that the Court cited it favorably three years later in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma , 532 U.S. 411 (2001). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2021 But both Kiowa and C & L Enterprises concern issues of sovereign immunity. Their statements about when a tribe is “subj ect to suit” address the circumstances in which a tribe cannot assert sovereign imm unity as a defense: when “Congress has authorized the suit or the tr ibe has waived its immunity.” Kiowa , 523 U.S. at 754; see also id. at 760 (“Congress has not abrogated this immunity, nor has [t he tribe] waived it, so the immunity governs this case.”); C & L Enters. , 532 U.S. at 418 (“To abrogate tribal immunity, Congress must ‘unequivocally’ express that purpose. Similarly, to relinquish its immunity, a tribe’s waiver mu st be ‘clear.’” (citation omitted) (first quoting Santa Clara Pueblo v. Martinez , 436 U.S. 49, 58 (1978), and then quoting Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla. , 498 U.S. 505, 509 (1991))). And as we emphasized in Lawrence , tribal “sovereign immunity and a court’s lack of subject -matter jurisdiction are diff erent animals.” 875 F.3d at 545. Waiving sovereign immunity simply renders a party “amenable to suit in a court properly possessing jurisdiction; it does not guarantee a forum.” United States v. Park Place Assocs., Ltd. , 563 F.3d 907, 923 (9th Cir. 2009). Put differently, “the absence of immunity does not establish the presence of s ubject[-]matter jurisdiction.” Alvarado v. Table Mountain Rancheria , 509 F.3d 1008, 1016 (9th Cir. 2007). So, contrary to the district court’s view, even if the Agreement waiv es tribal sovereign immunity, that waiver does not resolve wh ether the Utah state court has subjectmatter jurisdiction over Becker’s case. Reso lving that issue, we have explained, depends instead on whether the requirements of § 1322 and § 1326 are met. And Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2122 because here they are not, Co ngress has not authorized state-court jurisdiction over Becker’s lawsuit. 14 In short, the Tribe’s argument that th e state court lacks jurisdiction rests on two issues: (1) where Becker’s lawsuit arose, and (2) if it arose on the reservation, whether Congress authorized st ate-court jurisdiction. On th e first issue, we hold that Becker’s claims arose on the reservation because, based on th e district court’s factual findings, no substantial part of the conduct supporting thos e claims took place off the reservation. On the second issue, we hol d that Congress has not authorized statecourt jurisdiction over Becker’s claims because, although § 1322 provides Utah with the means to assume such jurisdiction, the Trib e never consented by holding a

14 This conclusion makes it unnecessary to address the Tribe’s argument that the district court also erred by overlooking the so-called “infringement barrier.” The Supreme Court has referred to the infringe ment barrier as one of two “independent but related barriers to the assertion of state regulatory authority over tribal reservations”—the other being federal pr eemption—either of which “standing alone[] can be a sufficient basis for holding state la w inapplicable to activity undertaken on the reservation or by tribal members.” White Mountain Apache Tribe v. Bracker , 448 U.S. 136, 142–43 (1980). Assu ming, as the Tribe suggests, the infringement barrier remains a separate basis for c oncluding that the state court lacks jurisdiction, we have reached that conclusion under the preemption prong. See Fisher , 424 U.S. at 386 (explaining that state jurisdiction “depend[s], absent a governing Act of Congress , on ‘whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them ’” (emphasis added) (quoting Williams , 358 U.S. at 220)); Kennerly , 400 U.S. at 425–26 (rejecting state court’s reasoning—that permitting state-court jurisdicti on would be “consistent with the exercise of tribal powers of self-government”—because ther e was “a ‘governing Act of Congress’” whose procedures had not been followed) ; 1 Cohen’s Handbook of Federal Indian Law § 7.03(1)(a)(ii) (2019) (“The Court al so has held that state jurisdiction is preempted by federal legislation prescribin g ways for states to obtain jurisdiction over aspects of Indian country.”). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2223 successful special electi on as required by § 1326. 15 Thus, the state court lacks subject-matter jurisdiction, and the district court abused its di scretion in concluding that the Tribe was unlikel y to succeed on that claim. 16 Crowe & Dunlevy , 640 F.3d at
1157. II. Remedy Next, we must consider the appropria te disposition of this appeal. Our conclusion that the state cour t lacks jurisdiction means that , contrary to the district

15 The dissent “agree[s] that § 1322 does not afford the Utah state courts with jurisdiction over Becker’s action agains t the Tribe,” Dissent 10, although for a different reason, as we noted earlier, supra note 10. From that point of agreement, the dissent turns to what it consid ers the real “jurisdictional is sue” in this case: “whether a Tribe, by way of a written agreement with a non-Indian, may se lectively agree to subject itself to state[-]c ourt jurisdiction . . . for di sputes arising out of the agreement.” Dissent 10. But resolution of th at perceived issue necessarily depends on the antecedent question of whether the state court has jurisdiction in the first place, because parties cannot create, by contract, jurisdiction th at would not otherwise exist. Cf. Ins. Corp. of Ir. v. Co mpagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982) (“[N]o action of the parties can confer subject-matter jurisdiction upon a federal court.”); U.S. for Use of B & D Mech. Contractors, Inc. v. St. Paul Mercury Ins. Co. , 70 F.3d 1115, 1117–18 (10th Cir. 1995) (invalidating foru m-section clause requiring that claim subject to exclus ive federal subject-matter juri sdiction be brought in state court). The dissent does not explain why or how the state court ha s jurisdiction in the first place. And as we have explained, because Becker’s claims against the Tribe arose on the reservation—which the dissent does not dispute—the Utah state court’s jurisdiction existed only if authorized by Congress. See Dalley , 896 F.3d at 1204. So unless some other federal stat ute besides § 1322 authorized state-court jurisdiction (a suggestion neither the parties nor the diss ent makes), the Agreement could not have, as the dissent posits, allowed the Tribe to “selectively ag ree to subject itself to state[-]court jurisdiction.” Dissent 10. W ithout approval from Congress, the Utah state courts never had jurisdiction over this particular dis pute to begin with. 16 Because we conclude that the state c ourt lacks jurisdiction, we do not reach the Tribe’s alternative argument that both th e Agreement and its purported waiver of tribal sovereign immunity are invalid under tribal and federal law. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2324 court’s ruling, the Tribe satisfies th e first preliminary-injunction element. 17 See Becker II , 868 F.3d at 1202. But to obtain a pre liminary injunction, the Tribe must also prove the remaining three elements, wh ich the district court did not consider. See id. Under these circumstances, our usual practic e is to remand for the district court to reweigh all four elements anew. E.g. , Kiowa Indian Tribe of Okla. v. Hoover , 150 F.3d 1163, 1172 (10th Cir. 199 8) (reversing district cour t’s analysis on irreparableharm factor and “remand[ing] for furthe r consideration of the Tribe’s request” because district court “did not addre ss the other three conditions required for issuance of a preliminary injunction”). Th e Tribe asks that we deviate from this practice and instead order the district court to enter a permanent injunction against the state-court proceedings. Given the unique circumstances of this appeal, we agree with the Tribe’s proposed resolution.

17 It also means that we cannot, as the dissent proposes, abstain under Colorado River Wate r Conservation District v. United States , 424 U.S. 800 (1976). Notably, the appellees do not invoke th is—or any other—abstention doctrine on appeal: Judge Lawrence raised Colorado River early on in the district-court proceedings (even before our decision in Lawrence ), but neither he nor Becker has mentioned it since. And even if we were to consider the issue sua sponte, as the dissent proposes, this case does not present the “excepti onal circumstances” required to abandon our duty to “adjudicate a c ontroversy properly before [us].” Colorado River , 424 U.S. at 813 (quoting Cnty. of Allegheny v. Frank Mashuda Co. , 360 U.S. 185, 188–89 (1959)). Indeed, Colorado River itself recognized that such exceptional circumstances do not exist “if the state c ourt ha[s] no jurisdiction to decide th[e] claims.” Id. at 809; see also Arizona v. San Carl os Apache Tribe of Ariz. , 463 U.S. 545, 560 (1983) (“[A] dismissal or stay of the federal suits would have been improper if there was no jurisdiction in the concurrent state actions to adj udicate the claims at issue in the federal suits.”). Because we conclude that the Utah state court lacks jurisdiction, abstention is not an option. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2425 As an initial matter, the requirements for obtaining a permanent injunction are “remarkably similar” to those for obtaining a preliminary injunction. Prairie Band Potawatomi Nation v. Wagnon , 476 F.3d 818, 822 (10th Cir. 2007). Indeed, the same four elements apply to both types of inj unctive relief, and “[t] he only measurable difference between the two is that a permanent injunction requires showing actual

success on the merits, whereas a prelimin ary injunction requires showing a substantial likelihood of success on the merits.” Id. (emphases added). Moreover, circumstances so metimes arise in which “a decision on the merits underlying the . . . denial of a preliminar y injunction” best serves the interests of judicial economy. Oklahoma ex rel. Okla. Tax Comm’ n v. Int’l Registration Plan,
Inc. , 455 F.3d 1107, 1113 (10th Cir. 2006); see also Thornburgh v. Am. Coll. of Obstetricians & Gynecologists , 476 U.S. 747, 757 (1986) (“That a court of appeals ordinarily will limit its review in a case of this kind to abuse of di scretion is a rule of orderly judicial administration, not a limit on judicial power.”), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833 (1992). That is, we have discretion, when appropriate, to d ecide not only that a party “has shown a likelihood of success on the merits,” but also that “it is alt ogether clear that [the party] will succeed on the merits.” Solantic, LLC v. City of Neptune Beach , 410 F.3d 1250, 1272 (11t h Cir. 2005). The circumstances here warrant a judgment on the merits. The Tribe’s argument involves a pure lega l issue about the applicability of a federal statute, making it a good candidate fo r a merits decision on ap peal from a preliminaryAppellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2526 injunction denial. See Thornburgh , 476 U.S. at 757 (appr oving Third Circuit’s decision to resolve underlying merits in preliminary-injunction appeal because “district court’s ruling rests solely on a premis e as to the applicable rule of law, and the facts are established or of no controlling relevance”); Okla. ex rel. Okla. Tax
Comm’n , 455 F.3d at 1113 (decidi ng underlying merits in appeal from denial of preliminary injunction because “[t]he issue [wa]s purely lega l, the facts [we]re not in dispute, and immediate resolution [would] avoid wasteful fu ture litigation”). We acknowledge that the issue of th e state court’s jurisdiction involves assessing the district court’ s findings on where Becker’s cl aims arose. But crucially, because we remanded for supplem ental findings on that issue, we have “a full record before [us]” that is “‘unus ually complete’” for the pr eliminary-injunction stage. Thornburgh , 476 U.S. at 757 (quoting Am. Coll. of Obstetricians & Gynecologists v. Thornburgh , 737 F.2d 283 (3d Cir. 1984), aff’d , 476 U.S. 747 (1986)). Indeed, the district court held a two-day evidentiary hearing resembling a full-blown trial at which it “heard testimony from fifteen w itnesses and received over 140 exhibits.” Supp. App. vol. 3, 2. And neither party s uggests that any additio nal evidence remains to be presented, were we to remand for additional proceedings. Cf. Friarton Ests. Corp. v. City of New York , 681 F.2d 150, 161 ( 2d Cir. 1982) (directing dismissal of complaint in addition to reversing grant of preliminary injunction because “[t]he facts critical to a decision . . . are found in the record” and “t here is no indication that anything more could be produced at a trial”). Nor do they suggest that any of the Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2627 remaining injunction requi rements involve factual issues requiring a remand. 18 Doing so would only prolong the lit igation, while “immediate re solution may avoid wasteful future litigation.” Okla. ex rel. Okla. Tax Comm’n , 455 F.3d at 1113. With that in mind, we have no trouble concluding that the Tribe satisfies all four requirements for a permanent injunction. 19 On the first element, we have already explained why the Tribe succeeds on its cl aim that the Utah state court lacks jurisdiction. 20 And because the Tribe, with its “sovereign status,” “should not be compelled ‘to expend time and effort on li tigation in a court that does not have jurisdiction,’” it satisfies the seco nd requirement of irreparable harm. Hoover , 150 F.3d at 1171–72 (quoting Seneca-Cayuga Tribe of Okla . v. Okla. ex rel. Thompson , 874 F.2d 709, 716 (1 0th Cir. 1989)).

18 Indeed, although the Tr ibe requested a permanent injunction in its opening brief, Becker argued only that the Tribe was unlikely to succeed on the merits and did not address the remaining prongs. 19 Consideration of the requirements for injunctive relief “ord inarily must be performed by the district c ourt in the first instance.” Citizens United v. Gessler , 773 F.3d 200, 209 (10t h Cir. 2014). Even so, when the dist rict court “fails to analyze the factors necessary to justify a preliminary injunction, this cour t may do so if the record is sufficiently developed.” Westar Energy, Inc. v. Lake , 552 F.3d 1215, 1224 (10th Cir. 2009). We see no reason why the same prin ciple should not apply to permanent injunctions given the “remar kabl[e] similar[ity]” between the two standards. Wagnon , 476 F.3d at 822. 20 The dissent disagrees, based on its vi ew that although § 1322 does not apply, the Agreement may independently supply the Utah state court with jurisdiction. We explained earlier why this view is mi splaced: The Utah state court needed congressional authorization to assert ju risdiction over Becker’s on-reservation claims; no one suggests that any federal statute beside s § 1322 authorized such jurisdiction; and the parties could not contr actually create state-court jurisdiction that would not otherwise exist. See supra note 15. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2728 The Tribe likewise satisfies the third requirement, that the injury to the Tribe “outweighs the harm that the injunction may cause” to Becker. Wagnon , 476 F.3d at 822 (quoting Fisher v. Okla. Health Care Auth. , 335 F.3d 1175, 1180 (10th Cir. 2003)). Though granting the injunction will l eave Becker unable to sue the Tribe in state court—“something [he] ha[d] no legal en titlement to do in the first place,” given our conclusion that Congress has not aut horized jurisdiction—this harm does not outweigh the damage to trib al sovereignty that would result from denying the injunction. Ute Indian Tribe of the Ui ntah & Ouray Rsrv. v. Utah , 790 F.3d 1000, 1005 (10th Cir. 2015); see also id. (weighing this factor in favor of granting temporary injunction because doing so wo uld only prevent state defendants from prosecuting tribal members). 21 Fourth, enjoining the state-court action will not adversely affect the public interest. See Wagnon , 476 F.3d at 822. In the district court, Becker argued otherwise based on Utah’s alleged interest in adj udicating novel contract disputes between tribes and private parties th at are governed by Utah law. But again, Utah had no such interest to begin with: This contract dispute arose on the reservation, and the federallaw prerequisites for state-c ourt jurisdiction are not met. In sum, because the Tribe

21 The Tribe argues that this 2015 case—as well as other related Ute v. Utah cases dating back to 1981—provide an i ndependent basis for gr anting an injunction in this case. Given our holding in the Tribe’ s favor on other grounds, we need not and do not reach this argument. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2829 has shown all the required elements, it is entitled to a permanent injunction against Becker’s state-court lawsuit. 22
Conclusion The district court erred in denying the Tribe’s motion to enjoin Becker’s lawsuit in Utah state cour t. Becker’s claims arose on the reservation because no substantial part of the conduc t supporting them occurred else where, so the state court could assert jurisdiction only with congre ssional authorization. Section 1322 does not supply such authorization because the Trib e never consented to jurisdiction under that provision by holding a sp ecial election as provided in § 1326. For these reasons, the Tribe succeeds on the merits of its claim that the stat e court lacks jurisdiction. And the Tribe also satisfies the remain ing elements required for a permanent injunction. Thus, we reverse the district court’s decision to deny the Tribe’s motion

22 We recognize that the Anti-Injunc tion Act (AIA), 28 U.S.C. § 2283, generally bars federal courts from enjoin ing ongoing state-c ourt proceedings. In Lawrence , we flagged this issue as one that c ould “be addressed by the district court in the first instan ce.” 875 F.3d at 548. We also noted authority suggesting that one of the AIA’s exceptions may apply to lawsu its like this one brought by a tribe. See id. at 548 n.5; compare § 2283 (permitting injunction agai nst state-court proceedings if “expressly authorized by Act of Congress”), with Sac & Fox Nation v. Hanson , 47 F.3d 1061, 1063 n.1 (10th Cir. 1995) (“It is possible that [28 U.S.C. § 1362] authorizes federal courts to enter injunctions against stat e proceedings.”). Despite our urging, and even though the Tribe’s moti on for injunctive relief preemptively argued that one or more AIA exceptions apply he re, Becker mentioned the AIA only in passing on remand. On appeal, neither Beck er nor Judge Lawrence mention the AIA, let alone argue that it app lies. Accordingly, we declin e to invoke the AIA as an alternative ground for affirming. See United States v. Woodard , 5 F.4th 1148, 1154 (10th Cir. 2021) (“[W]e don’t typically ‘craft[] arguments for affirmance completely sua sponte and . . . without the benefit of the parties’ adversar ial exchange.’” (second alteration in original) (quoting United States v. Chavez , 976 F.3d 1178, 1203 n.17 (10th Cir. 2020))). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 2930 for a preliminary injunction and remand w ith directions to (1) enter an order permanently enjoining Becker’s lawsuit in Utah state court and (2) resolve the Tribe’s pending motion for sanctions, a ssuming it has not been withdrawn. As a final matter, we deny the Tribe’ s motion to reassign this case to a different judge on remand. Having carefully examined the record, we conclude that the Tribe has fallen short of estab lishing the “personal bias” or “extreme circumstances” required under our precedents to grant the “extrao rdinary” relief of reassignment. Mitchell v. Maynard , 80 F.3d 1433, 1448 (10th Cir. 1996). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 30No. 18-4013, Ute Indian Tribe of the Ui ntah and Ouray Reservation, et al. v. Lawrence BRISCOE , Circuit Judge, dissenting. I dissent. In my view, the majority errs in three respects: by proceeding to address in the first instance the questio n of whether the Utah state c ourts have jurisdiction over Becker’s pending action against the Tribe; in the manner in which it decides that issue; and by issuing permanen t injunctive relief. Given the history of this litigation, it is my view that we should abstain pursuant to the Colorado River doctrine from deciding whether the Utah state courts have jurisdiction over Becker’s pending action against the Tribe. See Colo. River Water Conservation Dist. v. United States , 424 U.S. 800, 817–821 (1976). It is indisputable that the Utah state courts are capable of determining fo r themselves whether or not they have jurisdiction over Becker’s action against the Tribe. And, in the event that the Utah state courts finally rule against the Tribe on this issue, the Tribe can seek review from the United States Supreme Court. I therefore would remand to the district court with directions to dismiss this case without prejudice. As for the merits, the majority errs by ignoring the provisions of the parties’ written agreement that address how and where di sputes should be re solved, and in turn suggesting that 25 U.S.C. § 1322 wholly resolves the jurisdic tional issue. And in terms of relief, the majority takes the remarkable, bu t wholly unwarranted, st ep of awarding the Tribe permanent in junctive relief. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 312 I
A It is of course true that in a prior re lated appeal we held “that whether the state court has jurisdiction to hear . . . Becker’s cl aim” against the Tribe “is a matter of federal law.” Ute Indian Tribe v. Lawrence , 875 F.3d 539, 543 (10th Cir. 2017) ( Lawrence I ). But we have never held that there is exclusive federal jurisdiction over that issue. To the contrary, it is well established that, at least “[u]nder normal circumstances, . . . state courts . . . can and do decide questions of federal law.” El Paso Nat. Gas Co. v.
Neztsosie , 526 U.S. 473, 485 n.7 (19 99). It is also well established that such questions include issues of state court jurisdiction over civil disputes involving Indian tribes. E.g. , Upper Skagit Indian Tribe v. Lundgren , 138 S. Ct. 1649 (2018) (reviewing decision of the Supreme Court of Washington addressing tr ibal sovereign immunity in a civil in rem dispute). The Tribe has effectively c onceded these points. After Becker filed his action in Utah state district court, the Tribe did no t respond by immediately filing this federal action. Instead, the Tribe moved to dismiss Be cker’s action against it for lack of subject matter jurisdiction. After the state district court denied the Tribe’s motion, the Tribe appealed to the Utah Court of Appeals. Th e Utah Court of Appeals summarily dismissed the Tribe’s appeal due to the lack of a final, appealable order. On remand to the state district court, the Tribe continued, unsuccessfu lly, to obtain a dismissal for lack of subject matter jurisdiction. Only after unsuccessful ly litigating the jurisd ictional issue in the Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 323 Utah state courts for approximately a year and a half did the Tribe file this federal action seeking to enjoin Becker’s state court action. In light of this history, I c onclude that abstention under the Colorado River doctrine is the proper course of action here. More specifically, I conclude, as this court did under similar circumstances in D.A. Osguthorpe Family Partnership v. ASC Utah,
Inc. , 705 F.3d 1223 (10th Cir. 2013), that “the Colorado River doctrine wisely counsels our abstention from duplicative interference with the exceptionally protracted state proceedings present here.” 705 F.3d at 1226.
B The question of whether the district court should abstain from exercising jurisdiction over the Tribe’s cas e has been lurking in this matter since shortly after the Tribe filed its federal complaint. To begi n with, Judge Lawrence moved to dismiss the Tribe’s federal complaint on the basis of a number of abstention doctrines, including the Colorado River doctrine. The Tribe responded to Lawrence’s motion, but the district court never ruled on the motion. Subsequent ly, on January 17, 2018, the district court declined to exercise supplemen tal jurisdiction over the Tribe’s case pursuant to 28 U.S.C. § 1367. The district court also offered th ree alternative rationales for why it should not reach the merits of the Tribe’s claims . In particular, it concluded that “ Younger abstention should apply here because of the pe nding state action, the fa ct that state claim issues predominate[d], and b ecause the Tribe ha[d] a mean ingful remedy in the state courts if the state [district] court [wa]s inco rrect about its jurisdiction.” Aplt. App., Vol. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 334 IV at 727–28. The district court also concluded that, “as a matter of comity,” it “should defer to the state court to d ecide its own jurisdiction.” Id. at 728. It was the district court’s January 17, 2018 decision that gave rise to the appeal that is now before us. To be sure, on February 16, 2018, a two- judge panel of this court, acting upon a motion filed by the Tribe in connection with this appeal, “abate[d] the Tribe’s appeal,” “direct[ed] a limited remand,” an d instructed the district court on remand “to exercise its original jurisdiction in acco rd with the mandate in [ Lawrence I ], and decide the Tribe’s request for injunctive relief against the [Utah] state court proceedi ngs.” Feb. 16, 2018 Order at 2. But nothing in that order addre ssed, let alone obviated, the district court’s alternative rationales for declining to exercise jurisdiction. And for good reason: the twojudge panel lacked authority to address thos e alternative rationales on the merits. As outlined in 28 U.S.C. §§ 46(b) and (c), appellate courts may hear and decide cases and controversies by panels consisting of three ju dges. Of course, two-judge panels may act in the absence of an or iginally designated third judge, but th at is not what occurred in this case. Rather, the two-judge panel, which had not been assigned to the case as a merits panel and which lacked a third member, wa s acting only pursuant to Federal Rule of Appellate Procedure 27(c), which states, in per tinent part, that “[a] circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding.” Thus, the district court’s January 17, 2018 decision offering the alternative rationales for abstaining from exercising juri sdiction remains subject to review by this Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 345 court. More specifically, as a result of th e two-judge order of this court issued on February 16, 2018, we now have before us in this appeal two related, but alternative rulings from the district court: (1) the distri ct court’s original January 17, 2018 decision concluding, in pertinent part, that the Tribe’s case should be dismissed under the Younger abstention doctrine; and (2) the district cour t’s supplemental decision and order of April 30, 2018, concluding that, even if it exercise d jurisdiction over th e Tribe’s action, the Tribe was unlikely to prevail on the merits thereof and thus was not entitled to a preliminary injunction. Moreover, even aside from th e district court’s January 17, 2018 decision, it is beyond dispute that we possess the author ity to raise the i ssue of abstention sua sponte

. See Bellotti v. Baird , 428 U.S. 132, 143 n.10 (1976) (i ndicating “that abstention may be raised by the court [s]ua sponte .”); D.A. Osguthorpe , 705 F.3d at 1231 (“[A] court may raise the issue of abstention sua sponte .”). Thus, I proceed to address the issue of abstention, starting first with the Younger doctrine that the district court relied on, and concluding with the Colorado River doctrine.
C “Abstention from the exercise of federal juri sdiction is the exception, not the rule.” Colorado River , 424 U.S. at 813. Therefore, “federal courts are obliged to decide cases within the scope of federal jurisdiction,” and “[a]bstention is not in order simply because a pending state-court proceeding invo lves the same subject matter.” Sprint Commc’ns, Inc. v. Jacobs , 571 U.S. 69, 72 (2013). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 356 The district court in this case concluded that Younger abstention was appropriate. Reviewing that conclusion de novo, I disagree. See D.A. Osguthorpe , 705 F.3d at 1231 (outlining standard of review). “ Younger exemplifies one class of cases in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrai n from enjoining the state prosecution.” Sprint
Commc’ns , 571 U.S. at 72. The Supreme Court “has extended Younger abstention to particular state civil proceedings that are akin to criminal pr osecutions, or that implicate a State’s interest in enforcing the orde rs and judgments of its courts.” Id. at 72–73 (citations omitted). On the record before us, I am not persuaded that Becker’s state court proceeding—which involves a civil disput e between private parties over a written contract—falls into any of these narrow categories. I do, however, agree with Judge Lawrence that abstention is warranted under the Colorado River doctrine. In Colorado River , the Supreme Court recognized that, in exceptional circumstances, “‘reasons of wise j udicial administration’ must weigh in favor of ‘permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding.’” D.A. Osguthorpe , 705 F.3d at 1233 (quoting Colorado River , 424 U.S. at 818). The focus of the Colorado River doctrine is on “efficiency and economy” and “the avoidance of duplicative litigation.” Id. The Supreme Court in Colorado River “declined to prescribe a hard and fast rule” for appli cation of the doctrine, “but instead described [four] factors relevant to the decision.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 367 Corp. , 460 U.S. 1, 15 (1983). Those four fact ors include: “(1) whether the state or federal court first assumed jurisdiction over th e same res; (2) ‘the inconvenience of the federal forum’; (3) ‘the desirability of avoidi ng piecemeal litigation’; a nd (4) ‘the order in which jurisdiction was obtained by the concurrent forums.’” D.A. Osguthorpe, 705 F.3d at 1234 (quoting Colorado River , 424 U.S. at 818). The Court has since identified three additional factors that may be relevant: (5) th e vexatious or reactive nature of either the federal or the state action; (6) whether federa l or state law provides the rule of decision; and (7) the adequacy of the state court action to protect the federal plaintiff’s rights.
Moses H. Cone , 460 U.S. at 17 n.20, 23, 26–27. “The weight to be gi ven any one factor may vary greatly from case to case, dependin g on the particular setting of the case.” Id.
at 16. The first two of these factors carry little, if any, weight in the case at hand. To begin with, “this is not an action in rem or qu asi in rem” and thus “[n]either the state nor district court has acquired jurisdiction over property in the course of this litigation.” D.A. Osguthorpe , 705 F.3d at 1234. The second fact or—the inconvenience of the federal forum—is essentially irrelevant because “[t] he state and federal courthouses involved in this case are at no great geographical di stance from each ot her, and no party has suggested any physical or logi stical inconvenience suffered as a result of litigating in dual forums.” Id. All of the remaining factors, however, we igh heavily in favor of dismissing the Tribe’s federal action. Becker filed his stat e court action against th e Tribe on December Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 378 11, 2014. Since that time, the parties have litigated extensivel y in the state district court, as well as in the Utah appellate courts, and th e case is ready for trial. In contrast, the Tribe did not file its federa l court action until June 13, 2016, approximately eighteen months after Becker filed his state court ac tion. Moreover, the re cord makes abundantly clear that the Tribe’s filing of its federal laws uit was reactive in natu re, coming only after the Tribe had unsuccessfully a ttempted in both the state di strict court and the Utah appellate courts to have Becker’s suit dismi ssed for lack of subject matter jurisdiction. Relatedly, the Tribe’s federal lawsuit was never intended to fully litigate the parties’ dispute regarding the Agreement, but rather onl y to stop the state court proceedings. In other words, the claims raised in the Tribe’ s federal lawsuit would effectively require the district court, and in turn this court, to se rve as an appellate tribunal over the state court’s decision regarding subject matte r jurisdiction. Thus, allowi ng the Tribe’s federal lawsuit to proceed could only result in piecemeal litigation, i.e., the federal courts weighing in on the matter of the state court’s jurisdiction ove r the Tribe, and not a full resolution of the parties’ dispute. And, even assuming that the Tribe’s defenses to Becker’s state court action implicate federal law, it appears that th e majority of the parties’ dispute—to the extent that dispute is properly before the Utah state courts—will be governed by Utah state law. Indeed, the parties’ written Agre ement expressly provides that Utah state law will govern any disputes arising out of the agreement. Lastly, any defenses the Tribe may have to Becker’s state court action—in cluding defenses that implicate federal law— can, without question, be fully and fairly litiga ted in the Utah state court system and, if Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 389 appropriate, the United States Supreme Court. See Youngblood v. West Virginia , 547 U.S. 867, 874 (2006) (noting that state courts are “independently authorized to decide issues of federal law”); Bankers Life & Cas. Co. v. Crenshaw , 486 U.S. 71, 80 (1988) (noting that the Court can, in its discretion, un dertake review of any issues of federal law decided by the state courts). Having considered all of the relevant fact ors, I conclude that the Tribe’s federal action is indeed the exceptional case warranting Colorado River abstention. I therefore vote to remand to the district court with directions to dismiss this action without prejudice.
II
A The majority ignores the procedural hist ory of this case an d Judge Lawrence’s abstention arguments, and procee ds to decide the jurisdiction issue in the first instance. In doing so, however, the majority makes what I believe to be three key errors. First, the majority makes no mention of th e fact that the parties’ Agreement, which was drafted by the Tribe’s attorneys, expressly provided that all disputes arising out of the Agreement would be governed by Utah state law, waived any requirement that disputes be brought in Tribal court, a nd purported to waive the Tribe’s sovereign immunity. Although th e Agreement did not expressly me ntion the Utah state courts, I submit that the only reasonable inference that can be drawn from reading the contractual language is that the parties in tended for any disputes to be h eard in the Utah state courts Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 3910 in the event that the United States District Court for th e District of Utah lacked jurisdiction over such disputes. 1 Second, the majority concludes that th e Utah state courts lack subject matter jurisdiction over Becker’s claims against th e Tribe because “25 U. S.C. § 1322 does not provide such authorization.” Maj. Op at 3. I agree that § 1322 does not afford the Utah state courts with jurisdiction over Becker’s ac tion against the Tribe. But that is because § 1322 addresses only suits involving in dividual Indians, not Tribes. See Bryan v. Itasca Cty., Minn. , 426 U.S. 373, 389 (1976) (noting “there is notably absent” from the statute “any conferral of state jurisdiction over trib es themselves”); 1 Cohen’s Handbook of Federal Indian Law § 6.04(3)( b)(v) (2019). In other word s, § 1322 simply does not address, nor does the majority, the jurisdicti onal issue that this case actually poses, i.e., whether a Tribe, by way of a written agreemen t with a non-Indian, may selectively agree to subject itself to state court jurisdiction a nd state law for disputes arising out of the agreement. Finally, the majority takes the remarkable step of gr anting the Tribe permanent, rather than preliminary, inj unctive relief. Of course, the standards for preliminary and permanent injunctions ar e nearly identical. Amoco Prod. Co. v. Village of Gambell, Alaska , 480 U.S. 531, 546 n.12 (1 987). But there is one impo rtant difference between the

1 Of course, however, the validity of the Agreement remains in dispute and must be resolved in the first inst ance by the Tribal courts. See Becker v. Ute Indian Tribe of Uintah and Ouray Reservation , 11 F.4th 1140, 11 50 (10th Cir. 2021). Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 4011 two standards: a plaintiff seeking a prelim inary injunction “must show a likelihood of success on the merits” of its claim, while a pl aintiff seeking a permanent injunction must establish “actual success” on the merits of its claim. Id . According to the majority, this appeal is “a good candidate for a merits decision” because, in part, “[t]he Tribe’s argument involves a pure lega l issue about the app licability of a federal statute,” i.e., 25 U.S.C. § 1322. Maj. Op. at 24. As I ha ve explained, howeve r, § 1322 simply has no relevance to the question of wh ether the Utah state courts have civil jurisdiction over the Tribe with respect to disputes arising out of the Agreement. Thus, it is apparent, at least to me, that the Tribe has not established actual success on the merits of its claim (or, indeed, a likelihood of success on the mer its) and is not entitled to a permanent injunction.
B The majority responds to my criticisms by noting that I have “not explain[ed] why or how the state court has jurisdiction in the fi rst place.” Maj. Op. at 23 n.15. That is because, as I have already outlined, I am of the view that we should abstain from addressing that question and allow the Utah st ate courts to resolve this question in the first instance. That said, I will proceed to highlight several related points that I believe are relevant to the ultimate resolutio n of this jurisdiction question. It is well established that “[a] state court’s jurisdiction is general” and thus quite broad. Nevada v. Hicks , 533 U.S. 353, 367 (2001). Broad enough, in fact, to encompass actions brought by Tribes and Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 4112 tribal members against non-Indians fo r disputes arising on Indian land. E.g. , Williams v.
Lee , 358 U.S. 217, 219 (1959) (“suits by Indian s against outsiders in state courts have been sanctioned”). That said, we know th at Congress has, by way of Public Law 280 (including § 1322), announced a “federal policy governing” and effectively limiting “the assumption by States of civil and criminal jurisdiction over the Indian Nations.” Three Affiliated Tribes of Fort Berthol d Reservation v. Wold Eng’g , 476 U.S. 877, 884 (1986) ( Three Affiliated Tribes II ). But if, as the Supreme Court itself has suggested, Public Law 280 does not address “state jurisdiction over tribes,” that leaves open the question of whether Indian tribes may, by way of a commercial contract with a non-Indian, voluntarily subject themselves to st ate jurisdiction and state law. Bryan , 426 U.S. at 389;

see Three Affiliated Tribes of Fort Be rthold Reservation v. Wold Eng’g , 467 U.S. 138, 150 (1984) ( Three Affiliated Tribes I ) (“Nothing in the language or legislative history of Pub.L. 280 indicates that it was meant to divest States of pre-existing and otherwise lawfully assumed jurisdiction.”). In resolv ing that open question, it is crucial to recognize “the federal interests in promoti ng Indian self-governa nce and autonomy” and ensure that our answer promotes those interests. Three Affiliated Tribes II , 476 U.S. at 884. Given the facts presented here, I “fai l to see how the exercise of state-court jurisdiction” over Becker’s claims against th e Tribe “interfere[s] w ith the right of” the Tribe “to govern [itself] under [its] own laws.” Three Affiliated Tribes I , 467 U.S. at 148. Indeed, in my view, the majority’s holding is directly contra ry to the principles of Indian autonomy and self-governance because it prohi bits a Tribe from affi rmatively choosing, Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 4213 in the context of a commercial contract w ith a non-Indian, to subject itself to state jurisdiction and state law for disputes arising out of the contract. Appellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 43