kewenvoyouma law, pllc tempe, arizona 85283 …1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21...

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i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING

DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT

David A. Clifford (CA Bar No. 224532) KEWENVOYOUMA LAW, PLLC 700 East Baseline Road, Suite C1 Tempe, Arizona 85283 Telephone: (480) 428-4590 Facsimile: (480) 223-6398 Email: [email protected] Attorney for Specially Appearing Defendant HWAL’BAY BA:J ENTERPRISES, INC., dba GRAND CANYON RESORT CORPORATION

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MIN ZHANG,

Plaintiff, vs.

HWAL’BAY BA:J ENTERPRISES, INC., dba GRAND CANYON RESORT CORPORATION, a Hualapai tribally-chartered corporation,

Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Case No.: 5:19-CV-00124-SVW-SPX MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT. [Rule 12 (b)(1) and 12 (b)(1)(2)] Date: December 16, 2019 Time: 1:30 p.m. Dept.: Courtroom 10A Honorable Stephen V. Wilson

Case 5:19-cv-00124-SVW-SP Document 60-1 Filed 11/13/19 of 92 Page ID #:689

mailto:[email protected]

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ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING


Table of Contents

I. INTRODUCTION……………………………..…………………………...1

II. RELEVANT FACTS………………………….……………………………..2

III. LEGAL ARGUMENT…………………………...………………………….3

A. Plaintiff Has Made No New Arguments in Her Amended Complaint and Latest

Filings………………………………………………………………………...3

B. This Action Against the Defendant Must be Dismissed Because Defendant

Enjoys Tribal Sovereign Immunity......…………………..……………...……4

1. The Hualapai Tribe is Immune from Unconsented Suit………………....4

2. Under the Test Adopted By the 9th Circuit in White, The Tribe’s

Sovereign Immunity Extends to Defendant………………………………..….5

i. The Tribe Created GCRC Pursuant to Tribal Law………………..6

ii. The Purpose Behind Forming GCRC Indicates That It Is an Arm of The Tribe……………………………………………………………..6 iii. As Sole Shareholder, The Tribe Asserts Significant Control Over GCRC…………………………………………………………………7 iv. It is Clear The Tribe Intended for GCRC to Have Sovereign Immunity………………………...……………………………………8 v. As Sole Shareholder, The Tribe Receives Significant Monies From GCRC…………………………………………………………………9


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iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING


3. The Court Should Dismiss This Matter………………………………...10

C. This Action Against the Defendant Must be Dismissed Because Plaintiff

Originally Brought this matter in Tribal Court and Permitting Proceed Against

the Defendant Would Infringe on the Tribal Sovereignty of the Hualapai

Tribe…………………………………………………………...…………….11

D. This Action Against the Tribal Defendants Must be Dismissed Because the

Claims Presented are Untimely Under Tribal Law…………..….……..……13

E. Plaintiff’s Amended Statement of Claim Simply Regurgitates Past Arguments

The Court Has Previously Found Non-Responsive…………………………14

IV. CONCLUSION…………………………………………………………….16


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iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING


Table of Authorities

Constitutions:

Page(s)

U.S. Const. art. I, § 8, cl. 3………….….………………………………………….12

Hualapai Tribal Const. art. XVI, § 1……………………………...…………….4, 13

Statutes:

Page(s) 25 U.S.C. §§ 5301 et. seq………………………………………………………….14

28 U.S.C. §§ 2680 et. seq………………………………………………………….14

Cases:

Page(s) Agua Caliente Band of Cahuilla Indians v. Superior Court, 40 Cal. 4th 239 (2006)

……………………………………………………………………………………...5

Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006)………..……..…… 5

American Prop. Mgmt. Corp. v. Superior Court, 206 Cal. App. 4th 491 (2012)…...6

Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d

1173 (10th Cir. 2010)…………….…………………………..……..……....6, 7, 8, 9

Brown v. Garcia, 17 Cal. App. 5th 1198 (2017)………………..…….………….....11

C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. 532 U.S. 411

(2001)……………………………………………………………….…………11, 16

Campo Band of Mission Indians v. Superior Court, 137 Cal. App. 4th 175

(2006)…………………………………………………………………….…....10, 11


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v MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING


Demontiney v. United States ex rel. Dep't of Interior, Bureau of Indian Affairs, 255

F.3d 801 (9th Cir. 2001)…………...……………………….……………..……….11

Ex parte McCardle, 74 U.S. 506 (1869)…………………………………………..10

First Nat’l Bank of Birmingham v. Perfection Bedding Co., 631 F.2d 31, 33 (5th Cir.

1980)………………………………………………………...……………………...9

Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 507, 744 P.2d 29, 33 (App.

1987)………………………………………………………………………………..1

Grand Canyon Skywalk Dev., LLC v. 'SA' Nyu Wa Inc., 715 F.3d 1196 (2013)….15

Hualapai Indian Nation v. Mukeche, SWITCA No. 97-019 SWITCA Rep., Vol. 9,

21 (Hualapai Ct. App. 1997)………………….…………………………..………..4

Hwal’bay Ba:j Enters., Inc. v. Beattie, No. 2008-AP-007 (Hualapai Ct. App.

2009)…………………………………………………………….……….…6, 10, 11

Hwal 'bay Ba.j Enters., Inc. v. Vaughn, SWITCA No. 95-004-HTC, SWITCA Rep.,

Vol.6, p.21 (Hualapai Ct. App. 1995)………………………………..……………...5

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)……………………………….12

Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751 (1998)……………………….....4, 5

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994)……………..…10

Lawrence v. Barona Valley Ranch Resort & Casino, 153 Cal. App. 4th 1364

(2007)…………………………………………………………………………...…10


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vi MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING


Matsch v. Prairie Island Indian Cmty., 567 N.W.2d 276 (Minn. Ct. App.

1997)…………………………………………………………………...………….13

McCoy v. Salish Kootenai College, Inc., 334 F. Supp. 3d 1116 (Dist. Mont.

2018)…………………………………………………………………………..6, 7, 8

Okla. Tax Comm 'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505

(1991)…………………………………………………………………………........ 4

People v. Miami Nation Enters., 2 Cal. 5th 222 (2016)...…………..…….4, 5, 8, 10

Runyon v. Ass’n of Vill. Council Presidents, 84 P.3d 437 (Alaska 2004)………….6

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)……………….……………11

Seminole Tribe v. Florida, 517 U.S. 44 (1996)……………….…………….……..12

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)……………….……...10

Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Eng’g, P.C., 476 U.S.

877 (1986)..................................................................................................................4

Trudgeon v. Fantasy Springs Casino, 71 Cal. App. 4th 632 (1999)……..………...7

United States v. James, 980 F.2d 1314 (9th Cir. 1992)…………………………….3

WD at the Canyon, LLC v. Hwal'Bay Ba:J Enters., Inc., 2015-AP-004 (Hualapai Ct.

App. 2016)………………………………………………………………………….5

White v. Univ. of Ca., 765 F. 3d 1010, 1025 (9th Cir. 2014)………………5, 14, 15

Wright v. Colville Tribal Enter. Corp., 147 P.3d 1275, 1280 (Wash. 2006)……….6


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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIALLY APPEARING


I. INTRODUCTION.

The above Specially Appearing Defendant, Hwal’bay Ba:j Enterprises, Inc.,

dba Grand Canyon Resort Corporation (“GCRC” or “Defendant”), hereby moves

the Court dismiss all claims against GCRC, including claims stated in Plaintiff’s

Amended Complaint filed as Docket #57. At all material times hereto, Defendant

GCRC is and was a wholly-owned tribal corporation of the Hualapai Tribe. The

present action should be dismissed against GCRC for the following alternative

reasons: 1) GCRC enjoys sovereign immunity from unconsented suit and thus, may

not be sued unless GCRC consents to such lawsuit, 2) all acts at issue in this lawsuit

occurred upon the Hualapai Reservation, which means the Court should defer to the

Hualapai Tribal Court in respect of the Tribe’s right to govern its own lands in

accordance with well-established notions of Tribal Sovereignty, 3) the Plaintiff had

already filed this matter in Hualapai Tribal Court before filing this matter making

the Hualapai Tribal Court the court with jurisdiction to resolve this matter and 4)

under Hualapai law, Plaintiff failed to file the action within the statute of limitations

period.

This motion is supported by the following Memorandum of Points and

Authorities, all documents previously filed in this matter by Defendant, including

the declaration of GCRC’s General Counsel, Verrin T. Kewenvoyouma originally

filed as Docket #30-3 (“Kewenvoyouma Decl.”) and the declaration GCRC’s

current Chief Financial Officer, Thomas Keeney originally filed as Docket #30-2

(“Keeney Decl.”), and exhibits attached thereto.1

1 Unlike a motion under Rule 12(b)(6), in a motion made under Rule 12(b)(1) and 12(b)(2) the Court may consider declarations and other materials outside of the complaint without converting the motion to dismiss into a motion for summary judgment. Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 507, 744 P.2d 29, 33 (App. 1987).


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II. RELEVANT FACTS.

On or about May 30, 2018, Plaintiff filed a complaint against GCRC in

Hualapai Tribal Court (“Tribal Court”) alleging that she had been injured on January

22, 2017, in a slip and fall incident during a trip to the Grand Canyon Skywalk, an

international tourist attraction located upon the Hualapai Indian Reservation and

managed by GCRC (the “Tribal Court Litigation”). Kewenvoyouma Decl. at ¶6. A

copy of the Complaint is Exhibit C to the Kewenvoyouma Decl.

Even though Plaintiff had a case still pending in Tribal Court, Plaintiff filed

an action in California Superior Court (“State Court”) on September 7, 2018,

alleging the same facts and claims as the Tribal Court Action (“State Court Action”).

See Kewenvoyouma Decl. at ¶10.

On or about January 22, 2019, Plaintiff filed a complaint in the Federal

District Court in the Central District of California alleging essentially the same facts

and claims alleged in both the Tribal Court Action and the State Court Action

(“Federal Court Action”). See Original Complaint, Docket #1.

On or about May 3, 2019, Defendant filed a motion to dismiss in the State

Court Action based upon, among other things, sovereign immunity. See

Kewenvoyouma Decl. at ¶20. On May 30, 2019, the State Court heard GCRC’s

motion to dismiss. The State Court granted the motion to dismiss on May 30, 2019,

dismissing the State Court Action. See Kewenvoyouma Decl. at ¶20.

On July 30, 2019, Defendant’s attorneys received an email indicating that a

Default had been entered on behalf of Plaintiff in the Federal Court Action. See

Kewenvoyouma Decl. at ¶22.

On or about August 1, 2019, GCRC filed a Motion to Set Aside a Default and

Motion to Dismiss (“Original Motion”) for the Federal Court Action. See Docket

#30. This Court granted GCRC’s Motion to Dismiss on October 17, 2019. See

Court Order, Docket #56. However, this Court allowed Plaintiff to amend her


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complaint noting that Plaintiff should allege facts that show the Court has

jurisdiction to hear this matter and address GCRC’s arguments regarding sovereign

immunity. See Court Order, Docket #56.

On October 31, 2019, Plaintiff filed a “First Amended Statement of Claim”,

which contains many statements and arguments this Court found unresponsive in the

past and which does not address the issues the Court requested addressed. See First

Amended Statement of Claim, Docket #57. On or about November 7, 2019, Plaintiff

personally delivered a subpoena to GCRC personnel in Arizona requesting

document production in Los Angeles (“Plaintiff’s Subpoena”), almost three hundred

(300) miles away, despite the fact the parties have not entered into the discovery

phase of this proceeding. See Exhibit 1.

III. LEGAL ARGUMENT. A. Plaintiff Has Made No New Arguments in Her Amended Complaint

and Latest Filings.

Despite the Court’s Order for Plaintiff to address issues of jurisdiction and

sovereign immunity, Plaintiff has failed to make any new arguments in her “First

Amended Statement of Claim.” Accordingly, GCRC will again direct the Court to

the applicable law referencing declarations filed with the Original Motion yet refiled

with this motion for the Court’s convenience. Afterwards, GCRC will then address

the deficiencies in Plaintiff’s “First Amended Statement of Claim.” See Argument

III(E) below. Finally, GCRC is not going to address the defects of Plaintiff’s

Subpoena at this time.2

2 Plaintiff’s Subpoena has several defects, including; 1) being premature under Fed. R. Civ. P. 26(f); 2) attempting document production outside geographic limits proscribed under Fed. R. Civ. P. 45(c)1; and 3) being unenforceable because of GCRC’s immunity from suit. See United States v. James, 980 F.2d 1314 (9th Cir. 1992) (court correctly quashed subpoena because of sovereign immunity). However, GCRC will attempt to have Plaintiff withdraw the Subpoena by letter instead of filing a motion to quash at this time because a dismissal by this Court would render Plaintiff’s Subpoena and any motion regarding it moot.


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B. This Action Against the Defendant Must be Dismissed Because Defendant Enjoys Tribal Sovereign Immunity.

1. The Hualapai Tribe is Immune from Unconsented Suit.

As previously noted in Defendant’s Original Motion, the rule that tribes are

immune from unconsented suit “is now firmly established as a matter of federal law

and is not subject to diminution by the States.” Kiowa Tribe v. Mfg. Techs., Inc.,

523 U.S. 751, 756 (1998); Okla. Tax Comm 'n v. Citizen Band Potawatomi Indian

Tribe, 498 U.S. 505, 509 (1991); Three Affiliated Tribes of Ft. Berthold Reservation

v. Wold Eng’g, P.C., 476 U.S. 877, 890-91 (1986); People v. Miami Nation Enters.,

2 Cal. 5th 222, 243 (2016). Accordingly, the Hualapai Tribe, as a federally

recognized Indian tribe3, possesses sovereign immunity from suit absent a clear

waiver or congressional abrogation. Okla. Tax Comm 'n., 498 U.S. at 505. In addition,

the Tribe's Constitution expressly recognizes and reaffirms the Tribe's sovereign

immunity. Hualapai Tribal Const. art. XVI, § 1. ("the Tribe is immune from suit

except to the extent that the Tribal Council expressly waives sovereign immunity'').

Consequently, this well-settled legal doctrine of sovereign immunity has been

wholly adopted by both the Constitution and the Courts of the Hualapai Tribe.

Hualapai Indian Nation v. Mukeche, SWITCA No. 97-019 SWITCA Rep., Vol. 9,

3 This Court may take judicial notice of the Federal Register, which lists the Hualapai Tribe as a federally recognized Indian Tribe. See FFR 84 FR 1200, 1201 (2019) attached as Exhibit 2.


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21 (Hualapai Ct. App. 1997); WD at the Canyon, LLC v. Hwal'Bay Ba:J Enters.,

Inc., 2015-AP-004 (Hualapai Ct. App. 2016).

2. Under the Test Adopted By the 9th Circuit in White, The

Tribe’s Sovereign Immunity Extends to Defendant.

As enumerated in Defendant’s Original Motion, it is also clearly settled law

that the sovereign immunity of the Hualapai Tribe extends to commercial activities

of the Tribe and to the subordinate entities the Tribe creates to carry out those

activities. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006); Kiowa

Tribe, 523 U.S. at 760. Agua Caliente Band of Cahuilla Indians v. Superior Court,

40 Cal. 4th 239, 247 (2006); Hwal 'bay Ba.j Enters., Inc. v. Vaughn, SWITCA No.

95-004-HTC, SWITCA Rep., Vol.6, p.21 (Hualapai Ct. App. 1995). Indeed, tribal

“immunity applies not just broadly but deeply, frequently protecting not just tribal

governments, but tribal entities and corporations that are considered sub-entities of

the tribe.” Miami Nation, 2 Cal. 5th at 235. In White v. University of California the

9th Circuit adopted the following set of factors to determine whether a business entity

is a sub-entity of a tribe: (1) the method of creation of the economic entity; (2) the

entity’s purpose; (3) the entity’s structure, ownership, and management, including

the amount of control the tribe has over the entity; (4) the tribe's intent with respect

to the sharing of its sovereign immunity; and (5) the financial relationship between

the tribe and the entities. See White v. Univ. of Cal., 765 F. 3d 1010, 1025 (9th Cir.


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2014). quoting Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino and

Resort, 629 F.3d 1173, 1187 (10th Cir. 2010). As has been shown before, all five

factors weigh in favor of treating GCRC as an arm of the Tribe and therefore,

immune from unconsented suit4.

(i) The Tribe Created GCRC Pursuant to Tribal Law.

In considering the “method of creation” of a tribal entity courts have focused

on the law under which the entity was formed. Formation under tribal law weighs in

favor of immunity, whereas formation under state law has been held to weigh against

immunity. See McCoy v. Salish Kootenai College, Inc., 334 F. Supp. 3d 1116 (Dist.

Mont. 2018). American Prop. Mgmt. Corp. v. Superior Court, 206 Cal. App. 4th 491,

501-503 (2012); Wright v. Colville Tribal Enter. Corp., 147 P.3d 1275, 1280 (Wash.

2006); Runyon v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 441 (Alaska 2004).

In the present case, GCRC is tribally created and chartered organization formed by

the Hualapai Tribe itself in accordance with its Constitution. See Kewenvoyouma

Decl. Ex. A. Consequently, this factor clearly weighs in favor of immunity.

(ii) The Purpose Behind Forming GCRC Indicates That It Is an Arm of The Tribe.

4 The Hualapai Appellate Court has already determined GCRC enjoys sovereign immunity and is therefore immune from unconsented suit. Hwal’bay Ba:j Enters., Inc. v. Beattie, No. 2008-AP-007 (Hualapai Ct. App. 2009). All Tribal Cases have been attached hereto as Exhibits 3-6.


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With respect to the “purpose” factor, if the entity was created to develop the

tribe's economy, fund its governmental services, or promote cultural autonomy, its

purpose pertains to tribal self-governance notwithstanding the entity's commercial

activities, which weighs toward immunity. See McCoy at 1121. On the other hand,

if the entity was created “solely for business purposes and without any declared

objective of promoting the [tribe's] general tribal or economic development” then

such factor will weigh against immunity. See Trudgeon v. Fantasy Springs Casino,

71 Cal. App. 4th 632, 640 (1999). Here, GCRC’s Second Amended and Restated

Plan of Operation specifically states that GCRC was created to promote the

economic development of the Tribe and to provide business training and

advancement for Hualapai Tribal Members. See Kewenvoyouma Decl. Ex. B. In

addition, GCRC does provide funding for the Tribe’s government. (See Financial

Relationship below). Therefore, this factor weighs toward immunity as well.

(iii) As Sole Shareholder, The Tribe Asserts Significant Control Over GCRC. The “structure, ownership, and management” factor concerns the amount of

control the Tribe has over the entity.” Breakthrough Mgmt., 629 F.3d at p. 1191.

Relevant considerations include the entity's formal governance structure, the extent

to which it is owned by the tribe, and the entity's day-to-day management. Id.

However, control of a corporation need not mean control of business minutiae; the

tribe can be enmeshed in the direction and control of the business without being


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involved in the actual management. See Miami Nation, 2 Cal. 5th at 247. Per the

Plan of Operations, GCRC is a corporation that is solely and wholly owned by the

Hualapai Tribe. See Kewenvoyouma Decl. Ex. B. As the sole shareholder, the Tribe

exercises control of GCRC through the Tribal Council, which has the absolute

discretion to appoint GCRC’s Board of Directors but also has the power to remove

the entire Board for any reason. Id. In addition, GCRC’s chairman must report to

the Tribal Council on monthly basis regarding GCRC’s adherence to GCRC’s

budget, which must be approved by the Tribal Council. Accordingly, the “control”

also weighs in favor of immunity.

(iv) It is Clear The Tribe Intended for GCRC to Have Sovereign Immunity.

When considering the “intent” of the Tribe, courts will look to a tribal

ordinance or articles of incorporation creating the entity to see whether the tribe

intended the entity to share in its immunity. See McCoy at 1123 see also

Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d

1173 (10th Cir. 2010). Not surprisingly, a positive statement of intent weighs in

favor of immunity. In the present case GCRC’s governing documents, the Second

Amended and Restated Plan of Operation, clearly state that it shall enjoy the

protections of sovereign immunity and goes so far as to clearly state the method by

which GCRC’s sovereign immunity may be waived. See Kewenvoyouma Decl. Ex.

B. So once again this factor weighs in favor of GCRC’s immunity.


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(v) As Sole Shareholder, The Tribe Receives Significant Monies From GCRC.

Finally, the courts review the “financial relationship” between the Tribe and

the entity in question to determine what impact a judgment against the entity will

have on the Tribe’s funds. Thus, courts consider the extent to which the tribe

“depends … on the [entity] for revenue to fund its governmental functions, its

support of tribal members, and its search for other economic development

opportunities.” Breakthrough Mgmt., 629 F.3d at p. 1195. If a significant percentage

of the entity's revenue flows to the tribe, or if a judgment against the entity would

significantly affect the tribal treasury, this factor will weigh in favor of immunity.

As the sole shareholder of GCRC, any funds generated by GCRC belong as a matter

of equity to the Tribe. E.g., First Nat’l Bank of Birmingham v. Perfection Bedding

Co., 631 F.2d 31, 33 (5th Cir. 1980) (explaining that “stockholders are the equitable

owners of a corporation’s assets”). In addition, GCRC is the biggest source of

funding for the Tribe, funds which are used to support vital tribal services. See

Keeney Decl. ¶6. Without GCRC’s revenues for the services of Hualapai Tribe,

those services would surely be limited or terminated, thereby causing harm to

Hualapai tribal members. Id. Again, this factor clearly weighs in granting

immunity.

Ultimately, as noted above, GCRC is a corporation, created pursuant to tribal

law, wholly-owned by the Hualapai Tribe and provides important funds to the


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Hualapai’s tribal government. Each and every factor weighs toward extending

Hualapai’s sovereign immunity to include GCRC. Consequently, the protections of

sovereign immunity extend to Defendant.

3. The Court Should Dismiss This Matter.

A motion to dismiss based on sovereign immunity raises the issue of whether

a court has subject matter jurisdiction over the case and/or defendants. See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83 (1998). Thus, a court must first resolve a

motion to dismiss based upon sovereign immunity as a threshold matter because

"[w]ithout jurisdiction the court cannot proceed at all in any cause." Hwal’bay Ba:j

Enters., Inc. v. Beattie, No. 2008-AP-007 (Hualapai Ct. App. 2009). "Jurisdiction

is power to declare the law, and when it ceases to exist, the only function remaining

to the court is that of announcing the fact and dismissing the cause." See Steel Co.,

523 U.S. at 94 fn. 1 citing to Ex parte McCardle, 74 U.S. 506, 514 (1869). Thus,

where a Tribe or other entity possesses sovereign immunity a court must dismiss all

matters against such Tribe or entity.

Given the foregoing, Plaintiff bears the burden to prove an abrogation or

waiver of sovereign immunity, if not the court lacks jurisdiction. Beattie at ¶31; see

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Miami Nation,

2 Cal. 5th at 242 (citing Campo Band of Mission Indians v. Superior Court, below;

YAN v Iipay, 201 Cal. App. 4th at 206; Lawrence v. Barona Valley Ranch Resort &


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Casino, 153 Cal. App. 4th 1364, 1369 (2007); Campo Band of Mission Indians v.

Superior Court, 137 Cal. App. 4th 175, 183 (2006); Brown v. Garcia, 17 Cal. App.

5th at 1204 (citing to Morongo Band at 1418).

"There is a strong presumption against waiver of tribal sovereign immunity."

Demontiney v. United States ex rel. Dep't of Interior, Bureau of Indian Affairs, 255

F.3d 801, 811 (9th Cir. 2001). This strong presumption exists in part because an

"essential attribute" of sovereign immunity is an "entitlement not to stand trial."

Beattie at ¶7. Accordingly, a waiver of sovereign immunity must be unequivocally

expressed and cannot be implied. Beattie at ¶31; C&L Enters. v. Citizen Band

Potawatomi Indian Tribe of Okla., 532 U.S. 411, 419 (2001); Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58-59 (1978).

In the instant case, Plaintiff has failed to identify any abrogation or express

waiver of the Defendant’s sovereign immunity. Indeed, no such abrogation or waiver

exists. Put simply, Plaintiff has not and cannot show that Defendant waived its

sovereign immunity to allow this action. As such, this suit should be dismissed in its

entirety.

C. This Action Against the Defendant Must be Dismissed Because Plaintiff Originally Brought this matter in Tribal Court and Permitting Proceed Against the Defendant Would Infringe on the Tribal Sovereignty of the Hualapai Tribe.


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Federal courts have a clear and longstanding policy of supporting tribal

governance including the jurisdiction and edicts of tribal courts. Accordingly, where

an issue arises on an Indian reservation federal courts are directed to allow tribal

courts to resolve such issues. This principle was clearly stated by the United States

Supreme Court:

We have repeatedly recognized the Federal Government's longstanding policy of encouraging tribal self-government. This policy reflects the fact that Indian tribes retain “attributes of sovereignty over both their members and their territory,” to the extent that sovereignty has not been withdrawn by federal statute or treaty. . . Regardless of the basis for jurisdiction, the federal policy supporting tribal self-government directs a federal court to stay its hand in order to give the tribal court a "full opportunity to determine its own jurisdiction." In diversity cases, as well as federal-question cases, unconditional access to the federal forum would place it in direct competition with the tribal courts, thereby impairing the latter's authority over reservation affairs. Adjudication of such matters by any nontribal court also infringes upon tribal lawmaking authority, because tribal courts are best qualified to interpret and apply tribal law.

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-15 (1987) (citations omitted, emphasis added). The Court further held that “[c]ivil jurisdiction over [the activities of non-Indians on reservation lands] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.” Id. at 18.5

In addition, the Hualapai Tribal Constitution expressly provides that the “Hualapai Tribe shall have jurisdiction over all persons, property, lands, water, air

5 This policy derives directly from the Indian Commerce Clause of the United States Constitution, which authorizes Congress “to regulate Commerce . . . with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. This provision “is a grant of authority to the Federal Government at the expense of the States” and under it, “[t]he States . . . have been divested of virtually all authority over Indian commerce and Indian tribes.” Seminole Tribe v. Florida, 517 U.S. 44, 62 (1996).


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space, resources and all activities occurring within the boundaries of the reservation ….” Hualapai Tribal Const. art. XVI, § 1. See Kewenvoyouma Decl. Ex. A. Article 2 of the Hualapai Constitution also provides for the resolution of all civil cases and controversies within the jurisdiction of the Tribe in tribal court. See Kewenvoyouma Decl. Ex. A. Thus, it is abundantly clear that the Hualapai Tribe has taken steps to exercise and preserve its sovereignty, including the use of its tribal courts to address disputes on tribal land.

In the present case, it is undisputed that Plaintiff’s putative claims arose within

the boundaries of the Hualapai Reservation. In addition, Plaintiff has admitted to

bringing a claim against a tribally-owned and chartered enterprise in Tribal Court.

Consequently, the Hualapai tribal interests at issue are clearly significant.

As these facts demonstrate, allowing plaintiffs to assert claims in federal court

in this case with respect to their on-reservation activities would clearly infringe on

the tribal sovereignty and self-government of the Hualapai Tribe. The only issue is

whether this action should be stayed or dismissed.

Because, as set forth above, this Court is without authority to adjudicate or

review civil claims arising on Indian reservations, there is no basis for this case to

proceed against GCRC regardless of how the Tribal Court ultimately rules. Instead,

dismissal is clearly appropriate. See Matsch v. Prairie Island Indian Cmty., 567

N.W.2d 276, 279 (Minn. Ct. App. 1997)

D. This Action Against Defendant Must be Dismissed Because the Claims Presented are Untimely Under Tribal Law.

Section 4.2 of the Hualapai Tribal Code provides that civil actions must be

brought within one year. See Kewenvoyouma Decl. Ex. C. Plaintiff claims that she

was injured on the Hualapai Indian Reservation sometime around January 2017.

However, Plaintiff did not file this action in this Court until January 22, 2019, more


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than a year after the alleged injuries occurred. Because the claims are untimely, this

action must be dismissed.

E. Plaintiff’s Amended Statement of Claim Simply Regurgitates Past Arguments The Court Has Previously Found Non-Responsive.

Despite this Court’s Order to address jurisdiction and sovereign immunity,

Plaintiff’s Amended Statement of Claim does not include any relevant analysis

adopted by the 9th Circuit in White v. Univ. of Ca., 765 F. 3d 1010, 1025 (9th Cir.

2014), regarding whether an entity is considered an arm of the Tribe and thus,

protected by sovereign immunity. Rather, Plaintiff has repeated irrelevant and

erroneous arguments previously made in earlier pleadings that this Court has found

non-responsive.

First, Plaintiff again claims that the Federal Tort Claims Act is somehow

applicable because GCRC is somehow acting under the Indian Self Determination

Act. 25 U.S.C. §§ 5301 et. seq. Plaintiff first made this assertion in her second

REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR

DEFAULT JUDGMENT and, not surprisingly, this Court dismissed this argument.

See Docket #51 and Docket #56. As GCRC has explained before, GCRC is a

tribally-charted corporation wholly owned by the Tribe and thus, not acting under

the Indian Self Determination Act and, even if it was, the proper Defendant would

be the United States government under the Federal Torts Claim Act, not GCRC. Id.;

28 U.S.C. §§ 2680 et. seq.


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In addition, Plaintiff again makes certain recitations of several non-

applicable and non-existent requirements for the application of sovereign immunity

to a tribal entity. For example, Plaintiff again implies or claims that since GCRC

doesn’t give 50% of its revenues to the Hualapai Tribe GCRC cannot be considered

an arm of the Tribe. Again, the Plaintiff made this argument in her

OPPOSITION TO MOTION TO SET ASIDE DEFAULT AND MOTION TO

DISMISS. See Docket #39. As GCRC has previously shown, under the White

analysis there is no such requirement. Furthermore, despite Plaintiff’s assertions,

under White, there are no requirements that there be an overlap between the Tribal

Council and GCRC Board of Directors or that the Tribal Council run the day to day

operations of GCRC 6.

Finally, Plaintiff cites to Grand Canyon Skywalk Dev., LLC v. 'SA' Nyu Wa Inc.,

715 F.3d 1196 (2013) (“GCSD v. SNA”). Previously, Plaintiff made a somewhat

faulty reference to GCSD v. SNA in her first REPLY TO DEFENDANT’S

OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, which

was filed after the Court denied the Motion for Default Judgment. See Docket # 49.

However, the citation to GCSD v. SNA only strengthens GCRC’s position. In that

6 Interestingly, GCRC’s Plan of Operation does not preclude Tribal Council Members from acting as Board Members. See Kewenvoyouma Decl. Exhibit B.


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case, Grand Canyon Skywalk Development, a Nevada LLC, (“GCSD”) entered into

a revenue sharing agreement with ‘SA’ Nyu Wa, Inc. (“SNA”), another tribally-

chartered corporation and principle defendant in that case. Under the terms of the

revenue sharing agreement, the parties had agreed to binding arbitration, which the

US Supreme Court had previously held to be a waiver of sovereign immunity. See

C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. 532 U.S. 411

(2001). However, even with the GCSD’s right to binding arbitration in that case,

the 9th Circuit required GCSD to exhaust tribal remedies in respect for Tribal

Sovereignty. Id. In this case, Plaintiff can show no waiver of immunity because

none has been granted. Thus, the only applicable principle this Court can take away

from GCSD v. SNA is the on-going respect the 9th Circuit has shown for the

Hualapai Tribe and its courts.

IV. CONCLUSION.

For the foregoing reasons, GCRC respectfully requests this Court

immediately dismiss this action with prejudice.


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Respectfully submitted this 13th day of November, 2019.

KEWENVOYOUMA LAW

By: /s/ David Clifford David Clifford Attorneys for Defendant

HWAL’BAY BA:J ENTERPRISES, INC., DBA GRAND CANYON RESORT CORPORATION


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INDEX OF EXHIBITS

KEWENVOYOUMA DECLARATION

Exhibit 1 Subpoena to Produce Documents, Information or Objects or to Permit Inspection of Premises in a Civil Action; Proof of Service

Exhibit 2 FFR 84 FR 1200, 1201 (2019)

Exhibit 3 Hualapai Indian Nation v. Mukeche, SWITCA No. 97-019 SWITCA Rep., Vol. 9, 21 (Hualapai Ct. App. 1997)

Exhibit 4 Hwal’bay Ba:j Enters., Inc. v. Beattie, No. 2008-AP-007 (Hualapai Ct. App. 2009)

Exhibit 5 Hwal 'bay Ba.j Enters., Inc. v. Vaughn, SWITCA No. 95-004-HTC, SWITCA Rep., Vol.6, p.21 (Hualapai Ct. App. 1995)

Exhibit 6 WD at the Canyon, LLC v. Hwal'Bay Ba:J Enters., Inc., 2015-AP-004 (Hualapai Ct. App. 2016)

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Exhibit 1 19


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1200 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices

USGS minimize the burden of this collection on the respondents, including through the use of information technology.

Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Abstract: Research and monitoring findings are essential to fulfilling the U.S. Geological Survey’s (USGS) responsibility under the Earthquake Hazards Reduction Act to develop earthquake hazard assessments and record earthquake activity nationwide. Residents, emergency responders, and engineers rely on the USGS for this accurate and scientifically sound information. The USGS Earthquake Hazards Program funds external investigators to carry out these important activities. In response to our Program Announcements, investigators submit proposals for research and monitoring activities on earthquake hazard assessments, earthquake causes and effects, and earthquake monitoring. This information is used as the basis for selection and award of projects meeting the USGS’s Earthquake Hazards Program objectives. Final reports of research and monitoring findings are required for each funded proposal; annual progress reports are required for awards of a two- to five-year duration. Final reports are made available to the public at the website http://earthquake.usgs.gov/research/external/.

Title of Collection: Earthquake Hazards Program Research and Monitoring.

OMB Control Number: 1028–0051. Form Number: None. Type of Review: Extension of a

currently approved collection. Respondents/Affected Public:

Research scientists, engineers, and the general public.

Total Estimated Number of Annual Respondents: 370.

Total Estimated Number of Annual Responses: 370 in total, consisting of 250 applications and narratives and 120 final and annual reports.

Estimated Completion Time per Response: 45 hours per proposal

application response and 12 hours per final or annual progress report.

Total Estimated Number of Annual Burden Hours: 12,450 (11,250 hours per application and 1,200 hours per final or annual progress report).

Respondent’s Obligation: Final reports of research and monitoring findings are required to obtain future awards. Annual progress reports for multi-year awards are required to obtain funding for the following year.

Frequency of Collection: Final reports are required once at the end of the awards period of performance. Progress reports are required annually for awards of a two- to five-year duration.

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An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

The authorities for this action are the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

Trent Richardson, Deputy Associate Director, Natural Hazards Mission Area. [FR Doc. 2019–00607 Filed 1–31–19; 8:45 am]

BILLING CODE 4338–11–P

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs

AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice.

SUMMARY: This notice publishes the current list of 573 Tribal entities recognized by and eligible for funding and services from the Bureau of Indian Affairs (BIA) by virtue of their status as Indian Tribes. The list is updated from the notice published on July 23, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Laurel Iron Cloud, Bureau of Indian Affairs, Division of Tribal Government Services, Mail Stop 3645–MIB, 1849 C Street NW, Washington, DC 20240. Telephone number: (202) 513–7641. SUPPLEMENTARY INFORMATION: This notice is published pursuant to Section 104 of the Act of November 2, 1994 (Pub. L. 103–454; 108 Stat. 4791, 4792), and in exercise of authority delegated to the Assistant Secretary—Indian Affairs under 25 U.S.C. 2 and 9 and 209 DM 8. Published below is an updated list of federally acknowledged Indian Tribes in

the contiguous 48 states and Alaska. Amendments to the list include formatting edits, name changes, and name corrections. The list is updated from the notice published on July 23, 2018 (83 FR 34863).

To aid in identifying Tribal name changes and corrections, the Tribe’s previously listed or former name is included in parentheses after the correct current Tribal name. We will continue to list the Tribe’s former or previously listed name for several years before dropping the former or previously listed name from the list.

The listed Indian entities are acknowledged to have the immunities and privileges available to federally recognized Indian Tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations, and obligations of such Tribes. We have continued the practice of listing the Alaska Native entities separately for the purpose of facilitating identification of them.

Dated: December 20, 2018. Tara Sweeney, Assistant Secretary—Indian Affairs.

Indian Tribal Entities Within the Contiguous 48 States Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs

Absentee-Shawnee Tribe of Indians of Oklahoma

Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California

Ak-Chin Indian Community (previously listed as the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona)

Alabama-Coushatta Tribe of Texas (previously listed as the Alabama- Coushatta Tribes of Texas)

Alabama-Quassarte Tribal Town Alturas Indian Rancheria, California Apache Tribe of Oklahoma Arapaho Tribe of the Wind River

Reservation, Wyoming Aroostook Band of Micmacs (previously

listed as the Aroostook Band of Micmac Indians)

Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana

Augustine Band of Cahuilla Indians, California (previously listed as the Augustine Band of Cahuilla Mission Indians of the Augustine Reservation)

Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin

Bay Mills Indian Community, Michigan Bear River Band of the Rohnerville

Rancheria, California

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http://earthquake.usgs.gov/research/external/

http://earthquake.usgs.gov/research/external/

1201 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices

Berry Creek Rancheria of Maidu Indians of California

Big Lagoon Rancheria, California Big Pine Paiute Tribe of the Owens

Valley (previously listed as the Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California)

Big Sandy Rancheria of Western Mono Indians of California (previously listed as the Big Sandy Rancheria of Mono Indians of California)

Big Valley Band of Pomo Indians of the Big Valley Rancheria, California

Bishop Paiute Tribe (previously listed as the Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California)

Blackfeet Tribe of the Blackfeet Indian Reservation of Montana

Blue Lake Rancheria, California Bridgeport Indian Colony (previously

listed as the Bridgeport Paiute Indian Colony of California)

Buena Vista Rancheria of Me-Wuk Indians of California

Burns Paiute Tribe (previously listed as the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon)

Cabazon Band of Mission Indians, California

Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California

Caddo Nation of Oklahoma Cahto Tribe of the Laytonville Rancheria Cahuilla Band of Indians (previously

listed as the Cahuilla Band of Mission Indians of the Cahuilla Reservation, California)

California Valley Miwok Tribe, California

Campo Band of Diegueno Mission Indians of the Campo Indian Reservation, California

Capitan Grande Band of Diegueno Mission Indians of California (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation, California)

Catawba Indian Nation (aka Catawba Tribe of South Carolina)

Cayuga Nation Cedarville Rancheria, California Chemehuevi Indian Tribe of the

Chemehuevi Reservation, California Cher-Ae Heights Indian Community of

the Trinidad Rancheria, California Cherokee Nation Cheyenne and Arapaho Tribes,

Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma)

Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota

Chickahominy Indian Tribe Chickahominy Indian Tribe—Eastern

Division Chicken Ranch Rancheria of Me-Wuk

Indians of California Chippewa Cree Indians of the Rocky

Boy’s Reservation, Montana (previously listed as the Chippewa- Cree Indians of the Rocky Boy’s Reservation, Montana)

Chitimacha Tribe of Louisiana Citizen Potawatomi Nation, Oklahoma Cloverdale Rancheria of Pomo Indians

of California Cocopah Tribe of Arizona Coeur D’Alene Tribe (previously listed

as the Coeur D’Alene Tribe of the Coeur D’Alene Reservation, Idaho)

Cold Springs Rancheria of Mono Indians of California

Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California

Comanche Nation, Oklahoma Confederated Salish and Kootenai

Tribes of the Flathead Reservation Confederated Tribes and Bands of the

Yakama Nation Confederated Tribes of Siletz Indians of

Oregon (previously listed as the Confederated Tribes of the Siletz Reservation)

Confederated Tribes of the Chehalis Reservation

Confederated Tribes of the Colville Reservation

Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians

Confederated Tribes of the Goshute Reservation, Nevada and Utah

Confederated Tribes of the Grand Ronde Community of Oregon

Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon)

Confederated Tribes of the Warm Springs Reservation of Oregon

Coquille Indian Tribe (previously listed as the Coquille Tribe of Oregon)

Coushatta Tribe of Louisiana Cow Creek Band of Umpqua Tribe of

Indians (previously listed as the Cow Creek Band of Umpqua Indians of Oregon)

Cowlitz Indian Tribe Coyote Valley Band of Pomo Indians of

California Crow Creek Sioux Tribe of the Crow

Creek Reservation, South Dakota Crow Tribe of Montana Delaware Nation, Oklahoma Delaware Tribe of Indians Dry Creek Rancheria Band of Pomo

Indians, California (previously listed as the Dry Creek Rancheria of Pomo Indians of California)

Duckwater Shoshone Tribe of the Duckwater Reservation, Nevada

Eastern Band of Cherokee Indians Eastern Shawnee Tribe of Oklahoma Eastern Shoshone Tribe of the Wind

River Reservation, Wyoming (previously listed as the Shoshone Tribe of the Wind River Reservation, Wyoming)

Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria, California

Elk Valley Rancheria, California Ely Shoshone Tribe of Nevada Enterprise Rancheria of Maidu Indians

of California Ewiiaapaayp Band of Kumeyaay

Indians, California Federated Indians of Graton Rancheria,

California Flandreau Santee Sioux Tribe of South

Dakota Forest County Potawatomi Community,

Wisconsin Fort Belknap Indian Community of the

Fort Belknap Reservation of Montana Fort Bidwell Indian Community of the

Fort Bidwell Reservation of California Fort Independence Indian Community

of Paiute Indians of the Fort Independence Reservation, California

Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon

Fort McDowell Yavapai Nation, Arizona Fort Mojave Indian Tribe of Arizona,

California & Nevada Fort Sill Apache Tribe of Oklahoma Gila River Indian Community of the Gila

River Indian Reservation, Arizona Grand Traverse Band of Ottawa and

Chippewa Indians, Michigan Greenville Rancheria (previously listed

as the Greenville Rancheria of Maidu Indians of California)

Grindstone Indian Rancheria of Wintun- Wailaki Indians of California

Guidiville Rancheria of California Habematolel Pomo of Upper Lake,

California Hannahville Indian Community,

Michigan Havasupai Tribe of the Havasupai

Reservation, Arizona Ho-Chunk Nation of Wisconsin Hoh Indian Tribe (previously listed as

the Hoh Indian Tribe of the Hoh Indian Reservation, Washington)

Hoopa Valley Tribe, California Hopi Tribe of Arizona Hopland Band of Pomo Indians,

California (formerly Hopland Band of Pomo Indians of the Hopland Rancheria, California)

Houlton Band of Maliseet Indians Hualapai Indian Tribe of the Hualapai

Indian Reservation, Arizona Iipay Nation of Santa Ysabel, California

(previously listed as the Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel Reservation)

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In the Southwest Intertribal Court of Appeals for the Hualapai Tribal Court

· Hwal'Bay Ba:J Enterprises, Inc. and Hualapai Tribal Council, Plaintiffs-Appellants,

v. Charles Vaughn, Defendant-Appellee.

No. 95-004-HTC

Appeal Filed November 15, 1995

Appellants, a tribally.:.created Enterprise, entered into a loan commitment agreement with a bank without approval of the membership through a special election. The agreement waived the Enterprise's sovereign immunity, not the Tribe's immunity; therefore, the Tribe's constitution's requirements that a special tribal election be held for express waivers of tribal sovereign immunity or for encumbering any tribal assets is not applicable: the Enterprise is a distinct, separate entity from the Tribe; the letter does not expose tribal lands to foreclosure or encumbrance; the agreement does not contemplate any lease of tribal property or require the sale or exchange of any natural resources or other tribal asset or require the development on a commercial or industrial basis of tribal natural resources involving more than $50,000 since land, alone, is not a natural resource and the tribal constitution distinguishes between land and natural resources. Appellee's counsel is sanctioned for filing a second jurisdictional motion with a former tribal appellate judge after the first was denied by this Court and it appears that the second was filed to delay this appeal. Appellants's motion to enjoin further challenges against the Enterprise is denied, since future action by Tribe or Enterprise may not be in constitutional compliance.

Judith M. Dworkin, for Appellant Hwal'bay Ba:j Enterprise, Inc.

Lee Bergen, B. Reid Haltom and Melanie P. Baise for Appellant Hualapai Tribal Council

Edward Roybal for Appellee Charles Vaughn

Appeal from Hualapai Tribal Court Appellate Judge Ann Rodgers

INTRODUCTION This is an appeal of th~1.fiilal judgment of the tribal

court denying appellants' request for declaratory relief. Oral argument took plate on September 1, 1995. Appellants are the Hualapai Tribal Council (hereafter referred to as the "Council") and Hwal'Bay Ba:j Enterprises, Inc., (hereafter referred to as the "Enterprise") a corporation created by the Tribal Council. Appellants seek reversal of a tribal court judgment ( 1)

that the Enterprise, by accepting the terms of a loan commitment letter violated Article XVI, Section (2)(b) of the Hualapai Constitution and Article V(n) of the Hualapai Constitution; (2) that a special election be held for the purpose of approving · the loan; and (3) that appellants inform tribal members of the purpose and the liability of this loan agreement. The tribal trial court also held that the declaratory judgment ordinance enacted by ~e !ribal Council was void because it unconstitutionally mfringed on the power of the tribal judiciary under the tribal constitution.

After reviewing the entire record in the case below legal briefs submitted by the parties, pertinent law and after hearing the oral arguments of the parties, this Court. concludes that the judgment of the tribal trial court should be reversed as to the constitutionality of the action of the Enterprise in entering into the loan commitment letter.

As to the issue of the validity of the d~claratory judgment ordinance, the Court fmds that it is not an unconstitutional infringement on the powers of the judiciary because the Tribal Council was setting out a remedy. 1 Also, to the extent that the ordinance sets out a procedure, Article VI, Section 3(d) at least acknowledges the power of the Tribal Council to act as to matters of procedure. 2 Under the terms of this section of the tribal constitution any limit on the Tribal Council's power must be based on some other constitutional limit on its powers. No such limit was raised by the parties in this appeal.3

Unlike some state courts, the Hualapai court is not given

1 The trial court found t)lat the Declaratory Judgment Ordinance violated the doctrine of separation of powers in the Hualapai constitution. It also found that it had the power to hear declaratory judgment actions under the federal Declaratory Judgment Act of 1934. The Declaratory Judgment Act of 1934 only applies to Courts of the United States. This means federal courts. The Hualapai Tribal Court is not a federal court; it is created by and exercises the power of the Tribe, not that of the federal government. Therefore, the 1934 Act does not, absent adoption of it by the Hualapai Tribe, authorize the Hualapai courts to hear Declaratory Judgments. The trial court's finding concerning the Declaratory Judgment Act of 1934 allowed the Court to go forward and hear this action on the merits. Since it was heard on the merits, this legal error was harmless.

2 Article VI, §3 states: The Hualapai Judiciary shall have the power to:

( d) establish court procedures for the Hualapai judiciary, except that the Tribal Council may by ordinance alter such procedures consistent with this constitution.

3 In the trial court appellee presented arguments that the procedures adopted with the creation of the declaratory judgment remedy violated due process because the time frame prevented a party from fully presenting their case. That issue is not before this Court because the Appellee did not pursue that issue on appeal.

6 Southwest Intertribal Court of Appeals 21

EXHIBIT 5 37


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exclusive power over court procedure. In this sense it is more akin to the federal separation of powers doctrine which gives the legislative branch some power in the area of court procedure. However, the error below was harmless because the action was heard on the merits by the trial court and not dismissed due to the trial court's determination that the declaratory judgment ordinance was void.

PRELIMINARY PROCEEDINGS BEFORE THIS COURT

Appellants listed several issues in the notice of appeal. However, after briefing by the parties, only five issues were argued in the Court:

1) Whether the Tribal Council had the power under the tribal constitution to enact the declaratory judgment ordinance;

2) Whether the Enterprise's action in entering into the loan commitment letter without approval of the tribal membership in a special election violates the tribal constitution's limits on explicit waivers of the Tribe's sovereign immunity;

3) Whether the Enterprise's action in entering into the loan commitment letter without approval of the tribal membership in a special election violates the tribal constitution's limits on the power of the Tribal Council to enter into leases of tribal assets.

4) Whether the Enterprise's_ action in entering into the loan commitment letter without approval of the tribal membership in a special election violates the tribal constitution's limits on the pqwer of the Tribal Council to sell or exchange tribal lands or assets.

5) Whether the Enterprise's action in entering into the loan commitment letter without approval of the tribal membership in a special election violates the tribal constitution's limits on the power of the Tribal Council to develop tribal natural resources.

Appellee did not file a cross-appeal, choosing instead to defend the trial court's decision and challenge the jurisdiction of this Court to hear the1 appeal. Appellee's jurisdictional challenge was in(tf~lly determined in a separate opinion and order enter,ed by this Court when it accepted jurisdiction over the ijppeal. Less than a week before the date set for oral argument, Appellee again filed a motion attacking the jurisdiction of this Court before a

· former appellate court judge which stated almost identical grounds as were in his first challenge. Appellee asked the former judge to enjoin the oral hearing. No such

injunction was issued. At oral argument this Court permitted Appellee to come forth with any additional objections to this Court's jurisdiction, none were raised, although the Court addressed an additional ground which had been raised in the brief. The Court found that it had jurisdiction over the appeal.(Transcript of Hearing at pages 12-14).

Appellant Tribal Council, at oral argument, sought sanctions against Appellee for making the second jurisdictional challenge, and for the allegedly reckless and false allegations made by Appellee in the second jurisdictional challenge. (Transcript of Hearing at pages 8-11 ). Appellant Enterprise asked this Court to enjoin appellee from "taking any further action to obstruct the Enterprise's efforts to fund this loan before September 30, 1995". (Transcript of Hearing at page 29). These motions are addressed at the end of this opinion and order.

THE CONSTITUTIONALITY OF THE ENTERPRISE AGREEING TO THE TERMS OF

THE LOAN COMMITMENT LETTER.

The narrow issue on appeal is whether the trial court's conclusion that the Enterprise, by agreeing to the terms of the loan commitment letter, violated certain provisions of the Hualapai Constitution is arbitrary, capricious, or incorrect as a matter of law.4 The first point to be considered is what, in fact, are the terms of the loan commitment letter.

The Commitment Letter

The documents presented to this Court as exhibits to briefs by the parties establish that there was first a loan commitment letter dated May 10, 1994, which expired. This was followed by a second (superseding) loan commitment letter dated September 30, 1994. The September commitment letter was further modified in June of 1995, to be effective as of March 31, 1995. (Addendum to Reply Brief of Enterprise on Appeal). This change was suggested in a letter from the bank's attorney to counsel for the Enterprise dated January 10, 1995.(Exhibit E to legal memorandum on corporate status, February 22, 1995).

4 The right to appeal is set out at Article VI, Section 12 of the Hualapai Constitution; this section also describes the appropriate standard of review to be used. It states: "All matters of law and procedure may be decided by the Court of Appeals, Findings of fact shall be made by the Trial Court and shall be reviewable only when arbitrary or capricious".


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When the trial court entered its ruling on April .18, 1995, the letter from the bank's attorney was in the record as an exhibit to the Enterprise's Legal Memorandum on Corporate Status, however, at that time the proposed modification of the September commitment letter had not been executed by appellants. These facts raise the question of whether this Court can consider the June 1995 modification when reviewing the decision of the Court below rather than remand the case for further fact finding.

Whether this Court must remand this case for further fact finding in light of the June 1995 modification?

The Hualapai Constitution gives this Court the power to determine all matters of law or procedure. Article VI, § 12. Where an issue is a matter of law, this Court has the authority to make an initial determination; no remand is necessary. The September, 1994 commitment letter directs this Court to New Mexico law as governing interpretation of the document.5 New Mexico contracts law provides that interpretation of a contract is usually a matter of fact, except where the contract is unambiguous. Kirkpatrick v. Introspect Healthcare Corp., 114 N.M. 706, 845 P.2d 800 (1992). The issue of whether a contract is or is not ambiguous is a matter of law. Teton Exploration Drilling, Inc. v. Bokum Resources Corp., 818 F.2d 1521 (10th Cir. 1987). A contract is ambiguous only if it is fairly susceptible to different constructions. Kirkpatrick, supra. The Court cannot blindly apply these rules however, because the asserted ambiguity concerns a waiver of sovereign immunity of a federally recognized Indian Tribe. Under those circumstances, a waiver can only be found to exist if it is unambiguous. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

The September, 1994 commitment letter explicitly allows the parties to modify the agreement in writing, and a written modification will be valid if acknowledged or accepted by the signatories to the September, 1994 commitment letter. The June, 1995 modification was in

5 The commitment letter contains a choice of law provision:

48. Choice of Law/ This Com.ent, all Loan Documents, the

Environmental Certifi,cation and Indemnity Agreement and any issue arising therefrom or related thereto shall be governed by federal l'aw and the laws of the State ofNew Mexico, as applicable.

Interpretation of a contract is a matter guided by common law, and this section directs the Court to the law of the State of New Mexico unless that law would be inconsistent with or conflict with federal law.

writing and was accepted or acknowledged by the signatories to the September, 1994 commitment letter. (Addendum to Enterprise Reply Brief on Appeal). All parties to the first agreement intended that the June, 1995 commitment letter modify certain tenns of the September, 1994 letter to detennine the intent of the parties. Therefore, absent any ambiguity in the June 1995 commitment letter, this Court can, as a matter of law, consider the June 1995 modification of the commitment letter as part of the agreement entered into by the parties to the September, 1994 commitment letter.

The June, 1995 commitment letter explicitly states that it "amends the Commitment Letter ("Commitment") dated September 30, 1994". It explicitly modifies four paragraphs of the commitment letter. The only modification pertinent to this appeal is to Paragraph 4 7.

The Loan Documents and the Environmental Certification and Indemnity Agreement shall include provisions whereby HBBE [the Enterprise] shall (i) give to the Bank and the BIA a limited waiver of any right or claim HBBE may have to immunity from suit and (ii) consent to suit in courts with proper jurisdiction; and as evidence thereof, HBBE shall execute and deliver to the Bank and the BIA a limited waiver of any sovereign immunity that it may have, a consent to suit, and a consent to jurisdiction, Neither the Bank or the BIA are requesting that the Nation shall execute or deliver a waiver of the Nation's sovereign immunity, consent to suit or consent to jurisdiction.

None of the parties have argued that this modification creates any ambiguity, and this Court can find none. 6 There is no ambiguity as to· whether the parties intended a modification, or what was intended with the wording of the modification. Therefore, the existence of the June, 1995 modification of the commitment letter can be considered for the first time by

6 Counsel for appellee did suggest that the modification contradicted the terms of paragraph 37 of the September, 1994 agreement. (franscript at p. 54, lines 11-12). Paragraph 37 of the September, 1994 commitment letter merely states that the Hualapai Nation "shall deliver, or cause to be delivered to the Bank copies of all balance sheets, income statements, statements of cash flow or other financial statements that it delivers to BIA from time to time". There is no portion of the June, 1995 modification that touches on this section. To the extent that counsel intended to refer to Paragraph 47, the June, 1995 commitment letter explicitly intended to modify that section. To the extent that it conflicts with the original paragraph 47, it is unambiguous that the parties clearly intended to rewrite and modify that section. That does not, in and of itself, create ambiguity.

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this Court.

The effect of the June, 1995 modification

The record below establishes that prior to the September 30, 1994 commitment letter the Enterprise and the Tribe entered into a commitment letter which required the Tribe to guarantee 100% of the loan, to lease land to the Enterprise and to grant the bank a limited waiver of sovereign immunity to allow it to enforce any future loan agreement. Several tribal members were concerned about the constitutionality of these provisions and filed a case in tribal court challenging the ability of the Tribe to agree to such tenns. Before the case could be decided the initial loan commitment letter expired. The September, 1994 loan commitment letter was then created, by rewriting the initial letter. Paragraph 47 of the September loan commitment was somewhat ambiguous as to whether the Tribe was required to waive sovereign immunity and consent to suit.7 The June, 1995 modification of paragraph 47 essentially removed any ambiguity that the Enterprise and only the Enterprise was required to waive any sovereign immunity that it may have. Thus the effect of the June, 1995 modification was to make paragraph 4 7 unambiguously clear that no waiver, consent to suit, or consent to jurisdiction would be required from the Tribe.

The trial court, in construing the September 30, 1994 loan commitment letter correctly applied the legal principle that any waiver of sovereign immunity must be explicit, and only found that the Enterprise had waived sovereign immunity, and that the waiver did not violate any tribal laws. The June, 1995 modification does not require this Court to modify or reject the trial court's finding on this issue.

The Trial Court's findings

The trial court made the following findings concerning the September 30, 1994 commitment letter and the Enterprise's action in entering into the -commitment letter:

7 Paragraph 47 of the September, 1994 loan commitment letter stated:

/

The Loan Documents and th~~vironmental Certification and Indemnity j\greements shall include provisions whereby HBBE ~hall (i) give to the Bank and the BIA a limited waiver of any right or claim either may have to immunity from suit and (ii) consent to suit in courts with proper jurisdiction; and as evidence thereof each shall execute and deliver to the Bank and BIA a limited waiver of sovereign immunity, consent to suit and consent to jurisdiction.

a. "[T]he Enterprise is an entity, distinct and separate from the Tribe, it has the authority to waive sovereign immunity".

b. "The Enterprise has waived its sovereign immunity to the Bank."

c. In waiving sovereign immunity, "the Enterprise, with the Tribal Council's approval has not legally violated any law(s)."

d. "The Commitment Letter states that 'the loan of 5 .5 million dollars,' is guaranteed under certain obligations of the Enterprise: a.) Pledge of Enterprise's bank accounts, b.) assignment of a management agreement between Enterprise and Tribe. c.) lien on Enterprise's personal property. d.) assignment of certain contracts and account receivable." 8

Based on these findings, the Court concluded:

The loan agreement dated September 30, 1994 is in violation of the Hualapai Constitution, for it places the Tribe in liability of over $250,000 dollars. The Enterprise's assets are within the jurisdiction of the Tribe, the loan agreement purposes to renovate, expand and construct commercial business, Which will no doubt involve land and money in excess of $50,000 dollars.

Appellants argue that this conclusion·is arbitrary and capricious because it is not supported by the findings made by the tribal court, or by the evidence presented below. This Court must agree.

LEGAL ANALYSIS OF CONSTITUTIONAL CHALLENGES TO LOAN

COMMITMENT LETTER.

Pertinent Provisions of Hualapai Constitution

Article XVI, section (2)(b) of the Hualapai Constitution states:

Section 2. Waivers of Sovereign Immunity.

8 No party to this appeal explicitly attacked these findings of the trial court. Appellant Tribe suggested in appellate briefing that the assignment of contracts concerns only contracts of the Enterprise.


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(b) Express waivers of sovereign immunity shall required the approval of at least thirty (30) percent of the total number of eligible voters of the Tribe voting in a special election if the waiver may:

( 1) expose the Tribe to liability in excess of $250,000 dollars, or its equivalent, or

(2) expose more than one-hundred (100) acres of land to possible foreclosure or encumbrance.

Article V(n) of the Hualapai Constitution states:

The Tribal Council shall have all of the legislative powers vested in the Hualapai Tribe through its inherent sovereignty and Federal law and shall, in accordance with established custom of the Hualapai Tribe and subject to the express limitations contained in this constitution and the applicable laws of the United States, have the following powers: * * *

(n) to lease tribal lands, natural resources, or other tribal assets within the jurisdiction of the Tribe, Provided, That leases involving more than one thousand (1000) acres or fifty thousand ($50,000.00) dollars shall also need the approval of the eligible voters of the Tribe voting in a special election; and Provided, That development of natural resources shall be done in accordance with Article XI, Section 4 of this Constitution.

Articl~ XI, Section 4 of the Hualapai Constitution states:

Limited Power to Develop Natural Resources. The Tribal Council shall not develop on a commercial or industrial basis any natural resources of the Tribe without the consent of the majority of the total number of eligible voters of the Tribe. Small scale development of natural resources involving less than $50,000.00 may be approved by the Tribal Council without the approval of the voters so long as the intent of this provision is not violated. Any tribal member may enforce th!s section in Tribal Court which shall have juris~c'tion over these matters.

No violation of Art~le XVI, section (2)(b) of the Hualapai Constitution exists by virtue of execution of the loan commitment letter because there is no waiver of the Tribe's sovereign immunity.

The trial court explicitly found that the Enterprise was a distinct and separate entity from the Tribe. It further found that the Enterprise, not the Tribe, had waived sovereign immunity that it might have. Under the terms of the first portion of Article XVI, section (2)(b) of the Hualapai Constitution, an explicit waiver of sovereign immunity must be approved by thirty percent of the eligible tribal members in a special election only where the waiver could expose the Tribe to liability in excess of $250,000 dollars, or its equivalent. In the loan commitment letter, it is unambiguous that the Enterprise is only waiving sovereign immunity; not the Tribe. thus, it is not possible that the Tribe would be exposed to liability in any amount, much less that in excess of $250,000.00.

This Court is further convinced that there is no waiver of the Tribe's sovereign immunity by its review of the other documents in the record, particularly, the Articles of Incorporation for the Enterprise, the tribal resolutions creating and empowering the Enterprise, and the document known as the Plan of Operation. These documents clearly support the trial court's finding that the Enterprise is a distinct entity from the Tribe, and as such, does not have the power to waive sovereign immunity except as to the potential liability of the Enterprise itself.

The resolutions establish that the primary purpose for the creation of the Enterprise was to avoid political influence in the active management of the certain business ventures. Resolutions No. 11-94, 12-94 and 13-94. The Articles of Incorporation empower the Enterprise to sue and be sued, however, that power is limited 'in that the Enterprise cannot consent to the attachment of any interest except that owned by the corporation itself. (Article V, §11). Control of the Enterprise is vested in the board of directors, (Article VI). Under Article VII, §E, the board cannot incur contractual obligations unless it first determines that the Enterprise (as distinct from the Tribe) "has the ability to make payments when done." The "Plan of Operation" establishes that except for minor control over the annual budgets for the Enterprise, the Tribal Council intended that control of the corporation be -removed from the Tribal Council and vested in the Board of Directors for the Enterprise. Section C of the Plan governs capitalization of the Enterprise. After an initial investment of tribal funds, anything subsequently acquired by the Enterprise would be the property of the Enterprise, not the Tribe. T4is initial investment of tribal funds is reflected as the operating account on the accounting records of the Enterprise. Any additional advances of tribal funds to the Enterprise must either be a loan that generates interest income to the Tribe or be on


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the basis of additional capital investment in the Enterprise.

These documents establish an intent on the part of the Tribe to create an entirely separate entity to operate businesses on behalf of the Tribe. It does not reflect an intent that the Tribe operate these businesses through a corporate shell. While the initial funding which created the operating account could conceivably be taken if the Enterprise defaulted on the loan, there is no evidence in the record to establish that this amounts to $250,000.00 or more. This Court cannot presume that the Tribal Council has acted in an illegal manner. Instead, the presumption is that it has acted in accordance with all laws. Appellee did not present any evidence to rebut this presumption except the amount of the loan that the bank was willing to make to the Enterprise. Based upon the amount of the loan, appellee would have the Court imply that the initial investment exceeded $250,000.00. Contrary to appellee's position, the Court cannot make the implication that the Council is violating tribal law. It is clear that the Enterprise is not empowered to waive sovereign immunity so as to expose the Tribe to liability in any amount, much less that in excess of $250,000.00. Therefore, the fact that the loan commitment letter shows that the Enterprise will be borrowing $5.5 million dollars, does not establish a violation of Article XVI, §2(b ).

No violation of Article XVI, section (2)(b) of the Hualapai Constitution exists by virtue of execution of the loan commitment letter because the letter does not expose any lands of the Tribe to possible foreclosure or encumbrance.

The second part of Article XVI, section (2)(b) requires a special election where an explicit waiver of sovereign immunity would expose any lands of the Tribe to possible foreclosure or encumbrance. The trial court did not make any finding that tribal lands could possibly be exposed to foreclosure or encumbrance under the terms of the loan commitment letter. The finding of the tribal court as to what constituted security for the loan shows that no interest in land is given as security. Therefore, execution of the commitment letter by the Enterprise could not violate this section of the Constitution.

I I

No violation of Article ~; section (n) of the Hualapai Constitution ;exists by virtue of execution of the loan coD,1mitment letter.

Article V of the Hualapai Constitution sets out the powers of the Tribal Council pertaining to the leasing of "tribal lands, natural resources, or other tribal assets within the jurisdiction of the Tribe" and sets out explicit

limits on those powers. Leases involving more than one thousand (1000) acres or fifty thousand ($50,000.00) dollars must be approved by the eligible voters of the Tribe voting in a special election. Section (n) also limits the Tribal Council's power to sell or exchange tribal lands, natural resources or other tribal assets. This cannot be done without approval of the eligible voters in a special election.

Finally, Section (n) only ·permits the Tribal Council to allow development of tribal resources if development is done in accordance with the provisions of Article XI. Section 4. This section prohibits the Tribal Council from developing on a commercial or industrial basis any natural resources of the Tribe without the consent of a majority of the eligible voters of the Tribe. Small scale development involving less than $50,000.00 need not be submitted to the voters.

No violation of Article V, section (n), part one, of the Hualapai Constitution exists by virtue of execution of the loan commitment letter because the commitment letter does not contemplate any lease of tribal property.

The commitment letter does not require any leasing of tribal lands, natural resources or other assets of the Tribe. The trial court made no findings concerning the existence of any lease of tribal lands, natural resources or other assets. At best, the Court implied the existence of a lease of tribal lands, natural resources or other assets when it found that collateral for the loan consisted, in part, of the "assignment of a management agreement between Enterprise and Tribe."

Counsel for all parties agree that no written management agreement has been produced in these proceedings. Counsel for the appellants acknowledged at oral argument that no written management agreement exists at this time, but that the agreement to be put in writing would be substantially similar to the existing plan of operation. Thus, there was no evidence in the record, except for the amount of the loan sought, the loan commitment letter and the plan of operation, from which one could even imply that the September 30, 1994 commitment letter involved a lease requiring approval in a special election under Article V(n). None of these documents require a lease of tribal lands, natural resources or other assets. This constitutional provision is not violated by the terms of the loan commitment letter or the plan of operation.

No violation of Article V, section (n), part two of the Hualapai Constitution exists by virtue of


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execution of the loan commitment letter because the commitment letter does not require the sale or exchange of any natural resources or other assets.

At most, the only incident of ownership that is in any way transferred to another entity is the Tribe's right to manage certain businesses and the unlimited right to take the profit from those Enterprises. No tribal businesses are transferred to or exchanged under the existing plan of operation of the loan commitment letter. Even in the case of default by the Enterprise, the Bureau of Indian Affairs is to step in and manage tribal businesses in place of the Enterprise until the loan in paid off. Ownership of tribal businesses stays with the Tribe. The trial court made no finding of what asset of the Tribe, if any, was to be sold or exchanged by virtue of the loan commitment letter and this Court can fmd none. Therefore, no violation of this part of section (n) has been shown or proven.

No violation of Article V, section (n), part three, or Article XI, Section 4 of the Hualapai Constitution exists by virtue of execution of the loan commitment letter because the commitment letter does not require the development on a commercial or industrial basis of natural resources of the tribe involving more than $50,000.00.

The tribal court found a violation of Article V(n) in that "the loan agreement purposes to renovate, expand and construct commercial business, Which will no doubt involve land and money in excess of $50,000 dollars". This Court agrees that under the plan of operation the activities of the Enterprise may involve land and money in excess of $50,000.00. That fact, in and of itself, does not trigger the constitutional limit on the power of the Tribal Council to develop on a commercial or industrial basis any natural resources of the Tribe.

The issue is whether land itself is to be considered a natural resource under the Hualapai Constitution. The term "natural resources II has been def med by a legal dictionary to mean "[a]ny material in its native state which when extracted has economic value" Black's Law Dictionary 925 (5th ed). The defmition of the term outside its use as a legal termyits standard defmition, is: materials (as mineral depos~· and water power) supplied by nature." Webster's , Third New International Dictionary, 1507 (1961). -pie definition of 11land11 is much broader: "the natural environment and its attributes within which production takes place: the surface of the _earth and all its natural resources" or "any ground, soil, or earth, whatsoever regarded as the subject of ownership ( as meadows, pastures, woods) and everything annexed

to it whether by nature (as trees, water) or by man (as buildings fences) extending indefinitely vertically upwards and downwards". Webster's at 1268. Therefore, in the english language, whether used as a legal term of art by lawyers, or in passing by people in general, the term "land" includes natural resources associated with the land, but the land, itself is not a "natural resource".

Appellee argues correctly that this Court should not blindly apply dictionary definitions of terms when construing a tribal constitution. This Court generally agrees with that principle. Here, however, appellee did not produce any evidence in the court below of a different tribal interpretation. The best evidence before this Court as to how the Hualapai Tribe interprets these words is the tribal constitution, itself. A review of the use of these terms in the document establishes that tribal use of the term reflects the standard English definition. For example, in Article I - Jurisdiction, the Constitution distinguishes between lands and resources ("the_Hualapai Tribe shall have jurisdiction over all persons, property, lands, water, air space, resources* * *[.]").

The distinction between 11land11 and "natural resources" is also evident in the article addressing the powers of the Tribal Council. Article V ( e) gives the Council the power to prevent or veto the sale, disposition, lease or encumbrance of tribal lands, tribal funds of other assets. V(i) gives the Council the power to purchase or accept any land or property for the Tribe. V(j) gives the Council the power to regulate the use and disposition of all land in conformity with Article XI. V(k) gives the Council the power to request the Secretary of the Interior to confer trust or reservation status on lands reserved for, granted to or purchased by the Tribe. V(n), the provision in question, distinguishes between lands and natural resources itself concerning Tribal Council power to "lease tribal lands, natural resources or other tribal assets 11

• V ( f) gives the Council the power to protect and preserve the wildlife and natural resources of the Tribe.

Finally, an entire article of the tribal constitution is devoted to Land, Article XI. In addition to Section 4 which specifically addresses "natural resources" of the Tribe, Section 3, Land Use Ordinance, states:

A comprehensive land use ordinance shall be adopted as soon as possible after the adoption of this consti~tion. The ordinance shall include sections on timber management and fuel wood cutting, zoning, wildlife management, cattle management and other natural resources management.

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Contrary to the contention of appellee's counsel, the tribal belief as evidenced in the written constitution is that land is much broader than the term "natural resource", essentially natural resources are components of the land. The tribal constitution does not imply that land, itself is meant to be considered a natural resource. The best example of this interpretation is in Section 3 of Article XI which requires the natural resources associated with a tract of land to be taken into consideration in determining the best use for the land. This is perfectly consistent with the definitions of the terms "land" and "natural resource" in Webster's as set out above.

Based on the foregoing this Court concludes that the trial court erred when it concluded as a matter of law that development of land under the loan commitment letter would necessarily involve development of natural resources valued at more than $50,000. Since this error is the basis for concluding that the loan commitment letter was a violation of Article V(n) of the tribal constitution, that conclusion is also legally erroneous and must be REVERSED.

THE MOTION FOR SANCTIONS

Appellant Hualapai Tribe requested this Court to sanction counsel for appellee due to the frivolous nature of the motion to enjoin this Court from proceeding on the basis of lack of jurisdiction after this Court had previously ruled on the same issue in an earlier motion. This Court has reviewed the two jurisdictional motions and the loose allegations made in the second to possibly create an appearance of impropriety, or perhaps raise a second ground for challenge.9

After much consideration of all of the factors, I cannot escape the conclusion that the second jurisdictional motion was frivolous and filed solely with the intention to delay any determination of this appeal. Such conduct violates ethical rules that all attorneys must adhere to in their representation of clients. Thus, the conduct of Counsel for appellee in filing the second motion is such that appellant Tribal Council's motion for sanctions should be GRANTED.

The Court disagrees, however, with the sanction suggested by counsel for the iif"ibal Council. Counsel made the argument that the appropriate sanction should

I

9 · Counsel for Appellee did not provide this Court with an original copy of this second motion, having provided it to one of the former appellate judges for the Tribe, who is no longer in that position.

be the costs to the Appellant Tribal Council of having an additional attorney attend the appeal to address this motion. In a prior pre-trial conference on the · first challenge to this Court's jurisdiction, the attorney for the Tribal Council who appeared in the oral argument on the merits successfully defended against appellee's motion. Since no new arguments were raised in the hearing onthe secondjurisdictional challenge, that same attorney could have adequately defended _the second challenge. Therefore, an appropriate sanction would only involve the costs and fees of one attorney to respond at the hearing on the motion on September 1, 1995, exclusive from other -costs such as travel, and attorney fees and costs in appearing for at oral argument on the merits.

THE MOTION TO ENJOIN APPELLEE FROM FURTHER ACTION TO OBSTRUCT ENTERPRISES'S EFFORTS TO FUND THIS LOAN.

Appellant Enterprise made a motion at oral argument for the Court to enjoin appellee from further action to obstruct the Enterprise's efforts to fund this loan prior to September 30, 1995. This would seem to be premised upon the belief that once this decision was issued there would be no other possible objection to the actions of the Enterprise in obtaining the loan. At this time, this Court does not share that assessment of the facts.

By its existing terms, and by the terms set out in the plan of operation, and the representations made by Enterprise's counsel to this Court, the ,Court has found no constitutional infirmity in the Enterprise's action 'in entering into the loan commitment as it is now formulated. Under principles of res judicata or collateral estoppel, appellee can not raise these arguments again. However, an integral part of the projects proposed by the Enterprise is the Written Management Agreement to be created between the Hualapai Tribe and the Enterprise. Since the agreement is not in writing at this time, the Court cannot determine whether the written version will comply with the Hualapai Constitution at this time.

The record in this case establishes that appellee and other tribal members have used the tribal court to require appellants to bring their actions within the spirit of the Hualapai Constitution. Although he is not the prevailing party, the record shows that appellee's efforts, with one exception noted above, have not been frivolous. This is the process that is allowed by the Hualapai Constitution. This Court will not enter an order enjoining appellee from challenging the actions of the Enterprise when, as here, an essential aspect of its proposed projects has yet to be put in writing. Careful draftsmanship of the written


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agreement in conformity with this opinion would make any further interference frivolous. Appellant Enterprise's motion is DENIED.

THEREFORE, IT IS THE ORDER OF THIS COURT THAT'the order of the trial court should be and hereby is, REVERSED.

IT IS FURTHER ORDERED that appellant Enterprise's motion to enjoin appellee from further interference with the Enterprise's efforts to fund this loan is DENIED; and

IT IS FURTHER ORDERED that the Court shall schedule a telephonic hearing to consider the amount of the award of sanctions against Edward Roybal, Counsel for Appellee after presentation of a proposed award and opposition to the proposed award to the Court in writing. Counsel for Appellant Tribal Council shall submit a proposed award to this Court and to Mr. Roybal no late~ than September 30, 1995 for review. Mr. Roybal shall file any opposition to the proposed award with the Court no later than October 15, 1995.

IT IS FURTHER ORDERED, that due to the expedited nature of this appeal, Counsel shall have five calendar days from receipt of this Order to file any motions for other relief.

Appellant's motion for reconsideration of the above opinion and order was denied on October 2, 1996.

IT IS SO ORDERED.


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