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 official 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), Fredericks Peebles & Morgan LLP, Louisville, 

Colorado, for Plaintiffs-Appellants. 

David K. Isom, Isom Law Firm PLLC, Salt Lake City, Utah, for Defendant-Appellee 

Lynn D. Becker. 

Nancy J. Sylvester (Brent M. Johnson, with her on the brief), Administrative Office of 

the Courts, Utah District Court, Salt Lake City, Utah, for Defendant-Appellee Judge 

Barry G. Lawrence. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 6, 2022

Christopher M. Wolpert 

Clerk of Court

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_________________________________ 

Before MORITZ, BRISCOE, and EID, Circuit Judges. 

_________________________________ 

MORITZ, Circuit Judge. 

_________________________________ 

This appeal marks the latest chapter in a long-running contract dispute 

between the Ute Indian Tribe of the Uintah and Ouray Reservation (the Tribe)1

 and 

Lynn Becker, a non-Indian. The 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 allegedly 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 lawsuit, challenging the state court’s subjectmatter jurisdiction under federal law. The district court denied the Tribe’s motion for 

a preliminary injunction against the state-court proceedings, and the Tribe appeals. 

We reverse and hold that the Tribe is entitled to injunctive relief. The district 

court’s factual findings establish that Becker’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 congressional authorization. But 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 Tribal Business Committee (the Tribe’s elected 

governing body)” and “Ute Energy Holdings, LLC (whose 100% owner and sole 

member is the Tribe).” Ute Indian Tribe of the Uintah & Ouray Rsrv. v. Lawrence, 

875 F.3d 539, 540 n.1 (10th Cir. 2017). “Because the appellants raise identical 

arguments, we will generally refer to them all as the Tribe.” Id.

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district court’s ruling, 25 U.S.C. § 1322 does not provide such authorization. Section 

1322 requires tribal consent to state-court jurisdiction, and 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 succeeds on the merits of its claim that the 

state court lacks subject-matter jurisdiction. The Tribe further satisfies the other 

requirements for obtaining injunctive relief. Accordingly, under the particular 

circumstances of this appeal, we close this chapter in Becker’s dispute with the Tribe 

by ordering the district court to permanently enjoin the state-court proceedings. 

Background

The contract dispute at the heart of this appeal has spawned lawsuits 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 appeal before us. 

2 Becker III was initially consolidated with this appeal, and the cases were 

argued together. 

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Becker’s formal relationship with the Tribe began in 2004, when the Tribe 

hired him to help market and develop the Tribe’s vast mineral resources. During 

Becker’s time working for the 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 Agreement,” under which Becker would receive for his services 

an annual salary and 2% of certain revenue the Tribe accrued through its various 

mineral holdings. After Becker and the Tribe terminated their relationship in late 

2007 or early 2008, a dispute arose over the Tribe’s purported failure to pay Becker 

the 2% interest. So in 2014, Becker sued the Tribe in Utah state court for breach of 

contract, breach of the implied covenant of good faith and fair dealing, and unjust 

enrichment.3

 Judge Barry Lawrence denied the Tribe’s motion to dismiss for lack of 

subject-matter jurisdiction and eventually set the case for trial. 

In June 2016, about a year after Judge Lawrence denied the Tribe’s motion to 

dismiss the state-court action, the Tribe filed this federal lawsuit 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 for further proceedings, holding that “the Tribe’s claim—

that federal law precludes state-court jurisdiction over a claim against Indians arising 

3

 Becker initially brought these claims in federal court, but the district court 

dismissed them for lack of federal subject-matter jurisdiction under 28 U.S.C. 

§ 1331, and we affirmed. See Becker I, 770 F.3d at 948–49. 

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on the reservation—presents a federal question that sustains federal jurisdiction.” 

Lawrence, 875 F.3d at 540. 

On remand, the Tribe reasserted its position that the state 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 address a different issue, resulting in an order 

that purported to avoid consideration of the Tribe’s motions on supplementaljurisdiction grounds.4

 

The Tribe then filed this appeal, but we abated it, instructing the district court 

to follow Lawrence’s mandate and “decide the Tribe’s request for injunctive relief 

against the state[-]court proceedings.” App. vol. 8, 1541. The district court ultimately 

denied a preliminary injunction, finding that the Tribe was unlikely to succeed on the 

merits of its claim that the Utah state court lacks jurisdiction. 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 misinterpreted our statement in Lawrence that on 

remand, it “should address in the first instance whether the Tribe’s claims for 

declaratory relief fall within its supplemental jurisdiction.” 875 F.3d at 548. As the 

Tribe pointed out below, the only declaratory claims “that conceivably require[d] the 

exercise of supplemental jurisdiction [we]re the Tribe’s alternative claims” about the 

Agreement’s validity and sovereign immunity. App. vol. 3, 510 (emphasis omitted). 

Supplemental jurisdiction was 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. 

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federal statute authorizes state-court jurisdiction over such claims.5 See 25 U.S.C. 

§ 1322. 

We then lifted the abatement. But following oral argument, we abated the 

appeal for a second time, ordering the district court to make supplemental factual 

findings on the issue it had merely assumed—whether Becker’s state-court claims 

arose from events that occurred on the reservation. The district court eventually 

issued supplemental findings6

 and certified the supplemental record to this court. 

Having lifted the second abatement, we now resolve the Tribe’s appeal. 

Analysis

We review the district court’s decision 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 erroneous factual findings,” or if “there is no rational basis in 

the evidence for its ruling.” Id. (quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th 

Cir. 2002)). 

To obtain a preliminary injunction, the moving party must show that (1) it is 

substantially likely to prevail on the merits; (2) it will suffer irreparable harm without 

5

 Four days before the district court ruled, the Tribe moved to sanction Becker 

and his counsel for making allegedly 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 acknowledges 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. 

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the injunction; (3) this threatened injury outweighs the harm that granting the 

injunction may cause the opposing parties; and (4) the injunction will not adversely 

affect the public 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 federal law precludes the state court from 

exercising jurisdiction over Becker’s lawsuit. On appeal, the Tribe challenges that 

conclusion, arguing that it can show even more than a likelihood of success on the 

merits—it can show actual success on the merits. The Tribe further argues that it 

satisfies the remaining injunction requirements and thus asks, as a remedy, that we 

order the district court to grant a permanent injunction. 

I. The State Court’s Jurisdiction 

The Tribe argues that the Utah state court lacks subject-matter jurisdiction 

over Becker’s lawsuit as a matter of federal law. Admittedly, federal law usually 

plays a limited role in assessing whether a state court has jurisdiction because state 

courts, as courts of general jurisdiction, can hear a wide variety of cases. 13 Charles 

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3522 (3d ed. 

2021) (“Most state courts are courts of general jurisdiction, and the presumption is 

that they have subject matter jurisdiction over any controversy unless a showing is 

made to the contrary.”); cf. Aldinger v. Howard, 427 U.S. 1, 15 (1976) (“[F]ederal 

courts, as opposed to state trial courts of general jurisdiction, 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 

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courts’ “adjudicative authority over Indians for on-reservation conduct is greatly 

limited by federal law.” Lawrence, 875 F.3d at 542. 

These limits reflect a longstanding federal policy—enforceable against the 

states under the federal government’s plenary and exclusive constitutional authority 

“to legislate in respect to Indian tribes”—of “leaving 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 “acted consistently upon the assumption that the [s]tates 

have no power to regulate the affairs of Indians on a reservation” 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 authorization is generally not required if the 

claims stem from events occurring off tribal land.7

 

7

 We say “generally” because specific treaties and federal statutes limit statecourt jurisdiction over specific off-reservation 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, even if a state court has jurisdiction over such claims, tribal 

sovereignty may independently prevent it from ultimately adjudicating them. Id.

(noting that tribal sovereign immunity “bars suits against tribes 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”). 

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Accordingly, to assess the Tribe’s argument that the state court lacks 

jurisdiction over this dispute, we consider (1) whether Becker’s claims arose on the 

reservation; and (2) if they did, whether 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 Indian country. Even so, its precedents make 

clear that the inquiry requires examination of where the material factual events 

underlying the plaintiff’s claims occurred.8

 In Williams, for example, a non-Indian 

sued a Navajo couple in state court to recover 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 claim, 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 transaction with an Indian took 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 that states may exercise personal 

jurisdiction over out-of-state defendants with “certain minimum contacts with [the 

forum] such that the maintenance of the suit does not offend ‘traditional notions of 

fair play and substantial justice’” (quoting Milliken v. Meyer, 311 U.S. 457, 463 

(1940))). But whether the Utah state court may assert personal jurisdiction over the 

Tribe is distinct from the issue we face here—whether federal 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 jurisdictional bar “against state courts hearing 

actions that arise on the reservation is broader than the [personal-jurisdiction] 

requirement that a dispute have minimum contacts with the forum”). 

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tribal parties who resided on a reservation could not be brought in state court because 

the proceeding was “appropriately characterized 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 part of the conduct supporting 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, clearly “aris[es] on Indian land.” Dalley, 896 F.3d at 1200, 

1204–05. So does a lawsuit “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 arising on the reservation, however, 

because the district court’s supplemental factual findings suggest that at least some of 

the underlying events took place off the reservation. 

As a result, we assess the district court’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 preliminary-injunction appeal). 

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Law § 6.01(5) (2019) (“Where activities occur partially within and partially outside 

Indian country, and a substantial part of the activity takes place outside, courts have 

generally upheld nondiscriminatory applications of state jurisdiction.”). In a contract 

case like Becker’s, this inquiry involves several factors, including where the parties 

executed, negotiated, and performed the contract; 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 relative importance with respect to the 

dispute.” Id.

The district court’s findings establish that the parties executed the Agreement 

on the reservation. The district court found 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 Agreement. Supp. App. 

vol. 3, 25. But the record reveals no such uncertainty. True, Becker himself testified 

that he did not recall where he signed the Agreement. But he also specifically 

testified that he and the Chair signed the Agreement at the same time. Supp. App. 

vol. 2, 483 (stating that during conversation with Chair, “we signed the Agreement” 

(emphasis added)). Thus, given the undisputed evidence that the Chair signed on the 

reservation, the only reasonable inference is that Becker also signed on the 

reservation, and the district court clearly erred in concluding otherwise. See 

McDonnell v. City & Cty. Of Denver, 878 F.3d 1247, 1256–57 (10th Cir. 2018) 

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(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 factor likewise supports the conclusion that 

Becker’s claims arose on the reservation. The district court interpreted the record as 

inconclusive on where the Tribe performed, 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 . . . ordinances, 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 headquarters. 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 (10th Cir. 2008))). 

As for Becker, the district court found that he devoted a substantial amount of 

time to working both on and off the reservation. We take no issue with the district 

court’s factual findings on this point. The district court estimated that Becker worked 

off the reservation “[a]pproximately half” or “[a]t least half” of the time, either 

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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 emphasizes this off-reservation work. 

Yet as the district court acknowledged, all that off-reservation work served the 

Tribe’s minerals interests which were located entirely within 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 attended 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 nature 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 Agreement’s subject matter especially 

significant. See R.J. Williams, 719 F.2d at 985 (“When a contract concerns a specific 

physical thing, such as land or a chattel, the location of the thing is regarded as 

highly significant.”). The Agreement concerned Becker’s work marketing and 

developing tribal mineral assets located exclusively 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 have performed some tasks off tribal land, 

his actions were always in furtherance of his role managing those resources. This 

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factor overwhelmingly supports the conclusion that Becker’s claims arose on the 

reservation. 

To summarize, both parties signed the Agreement on the reservation, and the 

Tribe necessarily performed its duties there. And crucially, even though Becker 

performed his duties off the reservation about half of the time, his work was always 

in service of his role managing tribal mineral resources located on the reservation. 

For these reasons, we conclude that no “substantial part” of the conduct supporting 

Becker’s claims occurred off the reservation. Fisher, 424 U.S. at 389. Becker’s case 

is therefore “appropriately characterized as litigation arising on [an] Indian 

reservation.” Id. 

B. Whether Congress Authorized State-Court Jurisdiction 

Because Becker’s claims against the Tribe 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 court determined that 25 U.S.C. 

§ 1322 supplies such authorization. As explained in more detail below, that statute 

allows states to acquire jurisdiction 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 arguably does not apply to suits against tribes 

themselves. 1 Cohen’s Handbook of Federal Indian Law § 6.04(3)(b)(v) (2019); see 

also Lawrence, 875 F.3d at 546 n.4 (acknowledging that “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 issue) that “§ 1322 addresses only suits 

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jurisdiction under § 1322 “requires certain prelitigation action.” Lawrence, 875 F.3d 

at 545–46. The Tribe argues that one such prelitigation action is tribal consent; that 

is, a tribe must agree in advance to a state’s assumption of § 1322 jurisdiction. And 

because the Tribe has never consented to Utah courts exercising § 1322 jurisdiction, 

the Tribe contends, that statute does not supply the Utah state court with jurisdiction 

over Becker’s case. 

We agree. States may only assume jurisdiction under § 1322(a) “with the 

consent of the tribe occupying the particular Indian country . . . which would be 

affected by such assumption.”11 § 1322(a). A neighboring provision, 25 U.S.C. 

§ 1326, specifies the procedure for obtaining a tribe’s consent: “[T]he enrolled 

Indians within the affected area” must “accept such jurisdiction by a majority vote of 

the adult Indians voting at a special election held for that purpose.” If a tribe has not 

expressed its consent by holding a special election, a state’s courts 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 whether § 1322 applies to suits against 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 Indian country can make future extensions only with the consent 

of the tribes affected.”). The tribal-consent requirement applies to Utah because it did 

not pass legislation accepting § 1322 jurisdiction until after the 1968 amendment. See 

Lawrence, 875 F.3d at 546 n.4. 

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jurisdiction . . . must be manifested by majority 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 that such an election took place. See Lawrence, 875 

F.3d at 546 n.4; 1 Cohen’s Handbook of Federal Indian Law § 6.04(3)(a) & n.49 

(2019) (noting that “Utah passed legislation accepting jurisdiction subject to 

subsequent tribal consent” but that “no tribes . . . have consented to the state’s 

jurisdiction”). And the absence of a special election forecloses 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 jurisdiction under § 1322(a). Specifically, it found 

that although a tribe must conduct a special 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 consent”—in a contract like the 

Agreement, for example—“to a state’s exercise 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, the district court reasoned that 

the Tribe’s “likelihood of success on the merits” rests not on whether it held a special 

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election authorizing Utah state 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 the Utah state court with 

jurisdiction over Becker’s claims. The district court’s analysis is flawed in several 

significant respects. 

First, we agree with the Tribe that the district court’s interpretation is 

inconsistent with the explicit 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 election. § 1326 (emphases added). Congress 

included § 1322 in the same statutory 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 limiting 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 Collegiate 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] sense 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 jurisdiction despite the nonoccurrence of this necessary event, so 

long as the tribe has waived sovereign immunity. Because the district court’s 

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18 

permissive construction of § 1326’s special-election requirement reads “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 provisions, 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 also 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 incurred on that tribe’s reservation. 400 U.S. at 424, 429–

30. The tribal government had passed an ordinance granting state courts concurrent 

jurisdiction over civil cases involving tribe members named as defendants. Id. at 425. 

The Court considered whether this ordinance 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 affected 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 matters, whether or not the state has accepted the federal 

government’s jurisdiction.” App. 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 elsewhere in the subchapter. 

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19 

tribal ordinance “d[id] not comport with the explicit requirements of the Act” for 

obtaining tribal consent, the Montana state court lacked jurisdiction. Id. at 429. 

The district court attempted to distinguish Kennerly by highlighting statements 

in the majority opinion about selective consent, 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-government] options available to [tribes] with respect to 

state[-]court jurisdiction.” Id. at 431. The dissent further speculated that “reservation 

Indians must now choose between exclusive tribal[-]court jurisdiction on the one 

hand and permanent, irrevocable state jurisdiction on the other.” Id. 

Although the Kennerly dissent offered no explanation for this all-or-nothing 

interpretation, the Kennerly majority explained that the dissent had inferred “from the 

express allowance for selective state exercise of jurisdiction” in § 1322 that Congress 

somehow intended “to exclude selective tribal 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. 

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20 

majority left open the possibility that tribes could consent to state-court jurisdiction 

over some cases and 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 prerequisite to state-court jurisdiction when a 

tribe “globally” consents to such jurisdiction. App. vol. 15, 3730. But even if 

Kennerly’s dictum supports a tribe’s ability to selectively consent to state-court 

jurisdiction, its holding explicitly reinforces 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 undisputed here that the Tribe never held a special election 

to allow Utah state courts to adjudicate any civil cause of action arising on the 

reservation, much less Becker’s lawsuit against the Tribe. 

Next, as the Tribe asserts, the district 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 Supreme Court caselaw noting that “[a]s a 

matter of federal law, an Indian tribe is subject to suit only where Congress has 

authorized the suit or the tribe has waived its immunity.” App. vol. 15, 3732 

(emphasis added) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 

754 (1998)). Becker likewise emphasizes this 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). 

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21 

But both Kiowa and C & L Enterprises concern issues of sovereign immunity. 

Their statements about when a tribe is “subject to suit” address the circumstances in 

which a tribe cannot assert sovereign immunity as a defense: when “Congress has 

authorized the suit or the tribe has waived its immunity.” Kiowa, 523 U.S. at 754; see 

also id. at 760 (“Congress has not abrogated this immunity, nor has [the 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 must 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 different 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 subject[-]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 waives tribal sovereign 

immunity, that waiver does not resolve whether the Utah state court has subjectmatter jurisdiction over Becker’s case. Resolving that issue, we have explained, 

depends instead on whether the requirements of § 1322 and § 1326 are met. And 

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22 

because here they are not, Congress has not authorized state-court jurisdiction over 

Becker’s lawsuit.14

In short, the Tribe’s argument that the 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 state-court jurisdiction. On the first issue, we hold that 

Becker’s claims arose on the reservation because, based on the district court’s factual 

findings, no substantial part of the conduct supporting those claims took place off the 

reservation. On the second issue, we hold that Congress has not authorized statecourt jurisdiction over Becker’s claims because, although § 1322 provides Utah with 

the means to assume such jurisdiction, the Tribe 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 infringement barrier as one of two “independent 

but related barriers to the assertion of state regulatory authority over tribal 

reservations”—the other being federal preemption—either of which “standing alone[] 

can be a sufficient basis for holding state law inapplicable to activity undertaken on 

the reservation or by tribal members.” White Mountain Apache Tribe v. Bracker, 448 

U.S. 136, 142–43 (1980). Assuming, as the Tribe suggests, the infringement barrier 

remains a separate basis for concluding 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 jurisdiction would be “consistent with the exercise of tribal 

powers of self-government”—because there 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 also has held that state jurisdiction is 

preempted by federal legislation prescribing ways for states to obtain jurisdiction 

over aspects of Indian country.”). 

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23 

successful special election as required by § 1326.15 Thus, the state court lacks 

subject-matter jurisdiction, and the district court abused its discretion in concluding 

that the Tribe was unlikely to succeed on that claim.16 Crowe & Dunlevy, 640 F.3d at 

1157. 

II. Remedy 

Next, we must consider the appropriate disposition of this appeal. Our 

conclusion that the state court 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 against 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 considers the real “jurisdictional issue” in this case: “whether 

a Tribe, by way of a written agreement with a non-Indian, may selectively agree to 

subject itself to state[-]court jurisdiction . . . for disputes arising out of the 

agreement.” Dissent 10. But resolution of that 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 that would not otherwise exist. 

Cf. Ins. Corp. of Ir. v. Compagnie 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 forum-section clause requiring 

that claim subject to exclusive federal subject-matter jurisdiction be brought in state 

court). The dissent does not explain why or how the state court has 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 statute besides § 1322 authorized state-court jurisdiction (a 

suggestion neither the parties nor the dissent makes), the Agreement could not have, 

as the dissent posits, allowed the Tribe to “selectively agree to subject itself to 

state[-]court jurisdiction.” Dissent 10. Without approval from Congress, the Utah 

state courts never had jurisdiction over this particular dispute to begin with. 

16 Because we conclude that the state court lacks jurisdiction, we do not reach 

the Tribe’s alternative argument that both the Agreement and its purported waiver of 

tribal sovereign immunity are invalid under tribal and federal law. 

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24 

court’s ruling, the Tribe satisfies the first preliminary-injunction element.17 See 

Becker II, 868 F.3d at 1202. But to obtain a preliminary injunction, the Tribe must 

also prove the remaining three elements, which the district court did not consider. See 

id. Under these circumstances, our usual practice 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. 1998) (reversing district court’s analysis on irreparableharm factor and “remand[ing] for further consideration of the Tribe’s request” 

because district court “did not address the other three conditions required for 

issuance of a preliminary injunction”). The 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 Water Conservation District v. United States, 424 U.S. 800 (1976). 

Notably, the appellees do not invoke this—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 “exceptional circumstances” required 

to abandon our duty to “adjudicate a controversy 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 court ha[s] no jurisdiction to decide th[e] 

claims.” Id. at 809; see also Arizona v. San Carlos 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 adjudicate the claims at 

issue in the federal suits.”). Because we conclude that the Utah state court lacks 

jurisdiction, abstention is not an option. 

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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 injunctive relief, and “[t]he only measurable 

difference between the two is that a permanent injunction requires showing actual 

success on the merits, whereas a preliminary injunction requires showing a 

substantial likelihood of success on the merits.” Id. (emphases added). 

Moreover, circumstances sometimes arise in which “a decision on the merits 

underlying the . . . denial of a preliminary 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 discretion 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 decide not only that a party “has shown a 

likelihood of success on the merits,” but also that “it is altogether clear that [the 

party] will succeed on the merits.” Solantic, LLC v. City of Neptune Beach, 410 F.3d 

1250, 1272 (11th Cir. 2005). 

The circumstances here warrant a judgment on the merits. The Tribe’s 

argument involves a pure legal issue about the applicability of a federal statute, 

making it a good candidate for a merits decision on appeal from a preliminaryAppellate Case: 18-4013 Document: 010110628129 Date Filed: 01/06/2022 Page: 25
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injunction denial. See Thornburgh, 476 U.S. at 757 (approving Third Circuit’s 

decision to resolve underlying merits in preliminary-injunction appeal because 

“district court’s ruling rests solely on a premise 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 (deciding underlying merits in appeal from denial of 

preliminary injunction because “[t]he issue [wa]s purely legal, the facts [we]re not in 

dispute, and immediate resolution [would] avoid wasteful future litigation”). 

We acknowledge that the issue of the state court’s jurisdiction involves 

assessing the district court’s findings on where Becker’s claims arose. But crucially, 

because we remanded for supplemental findings on that issue, we have “a full record 

before [us]” that is “‘unusually complete’” for the preliminary-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 witnesses and received over 140 exhibits.” 

Supp. App. vol. 3, 2. And neither party suggests that any additional 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 “there is no indication that 

anything more could be produced at a trial”). Nor do they suggest that any of the 

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remaining injunction requirements involve factual issues requiring a remand.18 Doing 

so would only prolong the litigation, while “immediate resolution 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 claim 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 litigation in a court that does not have 

jurisdiction,’” it satisfies the second 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 (10th Cir. 1989)). 

18 Indeed, although the Tribe 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 “ordinarily must be 

performed by the district court in the first instance.” Citizens United v. Gessler, 773 

F.3d 200, 209 (10th Cir. 2014). Even so, when the district court “fails to analyze the 

factors necessary to justify a preliminary injunction, this court 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 principle should not apply to 

permanent injunctions given the “remarkabl[e] similar[ity]” between the two 

standards. Wagnon, 476 F.3d at 822. 

20 The dissent disagrees, based on its view that although § 1322 does not apply, 

the Agreement may independently supply the Utah state court with jurisdiction. We 

explained earlier why this view is misplaced: The Utah state court needed 

congressional authorization to assert jurisdiction over Becker’s on-reservation 

claims; no one suggests that any federal statute besides § 1322 authorized such 

jurisdiction; and the parties could not contractually create state-court jurisdiction that 

would not otherwise exist. See supra note 15. 

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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 leave Becker unable to sue the Tribe in 

state court—“something [he] ha[d] no legal entitlement to do in the first place,” given 

our conclusion that Congress has not authorized jurisdiction—this harm does not 

outweigh the damage to tribal sovereignty that would result from denying the 

injunction. Ute Indian Tribe of the Uintah & 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 would 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 adjudicating novel contract disputes between 

tribes and private parties that 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-court 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 independent basis for granting 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. 

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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 court. Becker’s claims arose on the reservation because no 

substantial part of the conduct supporting them occurred elsewhere, so the state court 

could assert jurisdiction only with congressional authorization. Section 1322 does not 

supply such authorization because the Tribe never consented to jurisdiction under 

that provision by holding a special election as provided in § 1326. For these reasons, 

the Tribe succeeds on the merits of its claim that the state court lacks jurisdiction. 

And the Tribe also satisfies the remaining 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-Injunction Act (AIA), 28 U.S.C. § 2283, 

generally bars federal courts from enjoining ongoing state-court proceedings. In 

Lawrence, we flagged this issue as one that could “be addressed by the district court 

in the first instance.” 875 F.3d at 548. We also noted authority suggesting that one of 

the AIA’s exceptions may apply to lawsuits like this one brought by a tribe. See id. at 

548 n.5; compare § 2283 (permitting injunction against 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 state proceedings.”). Despite our 

urging, and even though the Tribe’s motion for injunctive relief preemptively argued 

that one or more AIA exceptions apply here, Becker mentioned the AIA only in 

passing on remand. On appeal, neither Becker nor Judge Lawrence mention the AIA, 

let alone argue that it applies. Accordingly, we decline 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’ adversarial exchange.’” (second 

alteration in original) (quoting United States v. Chavez, 976 F.3d 1178, 1203 n.17 

(10th Cir. 2020))). 

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30 

for a preliminary injunction and remand with 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, assuming 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 establishing the “personal bias” or “extreme 

circumstances” required under our precedents to grant the “extraordinary” relief of 

reassignment. Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th Cir. 1996). 

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No. 18-4013, Ute Indian Tribe of the Uintah 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 question of whether the Utah state courts have jurisdiction over 

Becker’s pending action against the Tribe; in the manner in which it decides that issue; 

and by issuing permanent 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 for 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 disputes should be resolved, and in turn 

suggesting that 25 U.S.C. § 1322 wholly resolves the jurisdictional issue. And in terms 

of relief, the majority takes the remarkable, but wholly unwarranted, step of awarding the 

Tribe permanent injunctive relief. 

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2 

I 

A 

 It is of course true that in a prior related appeal we held “that whether the state 

court has jurisdiction to hear . . . Becker’s claim” 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 (1999). 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 tribal sovereign immunity in a civil in rem 

dispute). 

 The Tribe has effectively conceded these points. After Becker filed his action in 

Utah state district court, the Tribe did not respond by immediately filing this federal 

action. Instead, the Tribe moved to dismiss Becker’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. The 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, unsuccessfully, to obtain a dismissal for lack of subject 

matter jurisdiction. Only after unsuccessfully litigating the jurisdictional issue in the 

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3 

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 conclude 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 case has been lurking in this matter since shortly after the 

Tribe filed its federal complaint. To begin 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. Subsequently, on January 17, 2018, the district court 

declined to exercise supplemental jurisdiction over the Tribe’s case pursuant to 28 U.S.C. 

§ 1367. The district court also offered three 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 pending state action, the fact that state claim 

issues predominate[d], and because the Tribe ha[d] a meaningful remedy in the state 

courts if the state [district] court [wa]s incorrect about its jurisdiction.” Aplt. App., Vol. 

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4 

IV at 727–28. The district court also concluded that, “as a matter of comity,” it “should 

defer to the state court to decide 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,” and instructed the district court on remand “to exercise its 

original jurisdiction in accord with the mandate in [Lawrence I], and decide the Tribe’s 

request for injunctive relief against the [Utah] state court proceedings.” Feb. 16, 2018 

Order at 2. But nothing in that order addressed, 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 those 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 judges. Of course, two-judge panels may act 

in the absence of an originally designated third judge, but that 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, was acting only pursuant to Federal Rule of 

Appellate Procedure 27(c), which states, in pertinent 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 jurisdiction remains subject to review by this 

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court. More specifically, as a result of the 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 district 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 court’s supplemental decision and order of April 

30, 2018, concluding that, even if it exercised jurisdiction over the 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 the district court’s January 17, 2018 decision, it is 

beyond dispute that we possess the authority to raise the issue of abstention sua sponte. 

See Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976) (indicating “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 jurisdiction 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 involves the same subject matter.” Sprint Commc’ns, 

Inc. v. Jacobs, 571 U.S. 69, 72 (2013). 

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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 refrain 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 prosecutions, or that implicate a 

State’s interest in enforcing the orders 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 dispute 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 judicial 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 application of the doctrine, “but instead described 

[four] factors relevant to the decision.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

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Corp., 460 U.S. 1, 15 (1983). Those four factors include: “(1) whether the state or 

federal court first assumed jurisdiction over the same res; (2) ‘the inconvenience of the 

federal forum’; (3) ‘the desirability of avoiding piecemeal litigation’; and (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) the vexatious or reactive nature of either the 

federal or the state action; (6) whether federal 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 given any one factor 

may vary greatly from case to case, depending 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 quasi 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 factor—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 distance from each other, and no party has 

suggested any physical or logistical inconvenience suffered as a result of litigating in dual 

forums.” Id. 

All of the remaining factors, however, weigh heavily in favor of dismissing the 

Tribe’s federal action. Becker filed his state court action against the Tribe on December 

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11, 2014. Since that time, the parties have litigated extensively in the state district court, 

as well as in the Utah appellate courts, and the case is ready for trial. In contrast, the 

Tribe did not file its federal court action until June 13, 2016, approximately eighteen 

months after Becker filed his state court action. Moreover, the record makes abundantly 

clear that the Tribe’s filing of its federal lawsuit was reactive in nature, coming only after 

the Tribe had unsuccessfully attempted in both the state district court and the Utah 

appellate courts to have Becker’s suit dismissed 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 only 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 serve as an appellate tribunal over the state court’s 

decision regarding subject matter jurisdiction. Thus, allowing 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 over 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 the 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 Agreement 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—including defenses that implicate federal law—

can, without question, be fully and fairly litigated in the Utah state court system and, if 

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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, undertake review of any issues of federal law 

decided by the state courts). 

Having considered all of the relevant factors, 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 history of this case and Judge Lawrence’s 

abstention arguments, and proceeds 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 the 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, and purported to waive the Tribe’s sovereign 

immunity. Although the Agreement did not expressly mention the Utah state courts, I 

submit that the only reasonable inference that can be drawn from reading the contractual 

language is that the parties intended for any disputes to be heard in the Utah state courts 

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in the event that the United States District Court for the District of Utah lacked 

jurisdiction over such disputes.1

 Second, the majority concludes that the Utah state courts lack subject matter 

jurisdiction over Becker’s claims against the 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 action against the Tribe. But that is because 

§ 1322 addresses only suits involving individual 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 tribes themselves”); 1 Cohen’s Handbook of 

Federal Indian Law § 6.04(3)(b)(v) (2019). In other words, § 1322 simply does not 

address, nor does the majority, the jurisdictional issue that this case actually poses, i.e., 

whether a Tribe, by way of a written agreement with a non-Indian, may selectively agree 

to subject itself to state court jurisdiction and state law for disputes arising out of the 

agreement. 

 Finally, the majority takes the remarkable step of granting the Tribe permanent, 

rather than preliminary, injunctive relief. Of course, the standards for preliminary and 

permanent injunctions are nearly identical. Amoco Prod. Co. v. Village of Gambell, 

Alaska, 480 U.S. 531, 546 n.12 (1987). But there is one important difference between the 

1

 Of course, however, the validity of the Agreement remains in dispute and must 

be resolved in the first instance by the Tribal courts. See Becker v. Ute Indian Tribe of 

Uintah and Ouray Reservation, 11 F.4th 1140, 1150 (10th Cir. 2021). 

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two standards: a plaintiff seeking a preliminary injunction “must show a likelihood of 

success on the merits” of its claim, while a plaintiff 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 legal issue about the applicability of a federal statute,” i.e., 25 

U.S.C. § 1322. Maj. Op. at 24. As I have explained, however, § 1322 simply has no 

relevance to the question of whether 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 merits) 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 first 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 state 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 resolution 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 

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tribal members against non-Indians for disputes arising on Indian land. E.g., Williams v. 

Lee, 358 U.S. 217, 219 (1959) (“suits by Indians against outsiders in state courts have 

been sanctioned”). That said, we know that 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 Berthold 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 state jurisdiction and state law. Bryan, 426 U.S. at 389; 

see Three Affiliated Tribes of Fort Berthold 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 resolving that open question, it is crucial to 

recognize “the federal interests in promoting Indian self-governance 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 “fail to see how the exercise of state-court 

jurisdiction” over Becker’s claims against the Tribe “interfere[s] with 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 contrary to the principles of Indian 

autonomy and self-governance because it prohibits a Tribe from affirmatively choosing, 

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in the context of a commercial contract with a non-Indian, to subject itself to state 

jurisdiction and state law for disputes arising out of the contract. 

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