LYNN D. BECKER, Plaintiff Counterclaim Defendant -Appellee,
UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, a federally chartered corporation; UINTAH AND OURAY TRIBAL BUSINESS COMMITTEE; UTE ENERGY HOLDINGS, LLC, a Delaware LLC, Defendant Counterclaimants Third-Party Plaintiffs - Appellants,
JUDGE BARRY G. LAWRENCE, Third-Party Defendant-Appellee.
from the United States District Court for the District of
Utah (D.C. No. 2:16-CV-00958-CW)
Jeffrey S. Rasmussen (Frances C. Bassett, Thomas W.
Fredericks, Jeffrey J. Patterson, and Thomasina Real Bird,
with him on the briefs), Fredericks Peebles & Morgan LLP,
Louisville, Colorado, for Ute Indian Tribe of the Uintah and
Ouray Reservation, Uintah and Ouray Tribal Business
Committee, Ute Energy Holdings, LLC, Defendant
Counterclaimants Third-Party Plaintiffs-Appellants.
K. Isom, Isom Law Firm, PLLC, Salt Lake City, Utah, for
Plaintiff, Counterclaim Defendant-Appellee, Lynn D. Becker.
M. Johnson and Keisa L. Williams, Utah Administrative Office
of the Courts, Salt Lake City, Utah, for Third-Party
Defendant-Appellee, Judge Barry G. Lawrence.
HARTZ and EBEL, Circuit Judges. [*]
Indian Tribe of the Uintah and Ouray
Reservation appeals a preliminary injunction ordering
it not to proceed with litigation in tribal court against a
nonmember former contractor, Lynn Becker. The district court
ruled that although the parties' dispute would ordinarily
come within the tribal court's jurisdiction, their
Independent Contractor Agreement (the Contract) waived the
Tribe's right to litigate in that forum.
Tribe mounts two challenges to the preliminary injunction.
First, it contends that the tribal-exhaustion rule, which
ordinarily requires a federal court to abstain from
determining the jurisdiction of a tribal court until the
tribal court has ruled on its own jurisdiction, deprived the
district court of jurisdiction to determine the tribal
court's jurisdiction. We do not agree that the rule is
jurisdictional but agree that the district court should have
abstained on the issue. Although the Contract contains a
waiver of the tribal-exhaustion rule, Mr. Becker, on the
record and arguments before us on this appeal, has not shown
a likelihood of success based on the validity of the waiver.
He has failed to adequately counter the Tribe's
contention that the entire Contract, including the waiver, is
void because it did not receive federal-government approval,
as is required for contracts transferring property held in
trust for the Tribe by the federal government. Second, the
Tribe contends that even if exhaustion is not required, the
preliminary injunction was improper because the Contract did
not waive the Tribe's right to litigate this dispute in
tribal court. Although the author, in a separate concurrence,
believes the contention has substantial merit, the panel
relies only on the first issue as ground for reversal.
addition, the Tribe challenges the district court's
dismissal of its claims under the federal civil-rights act,
42 U.S.C. § 1983, seeking to halt state-court litigation
between it and Mr. Becker. We reject the challenge. The Tribe
has not stated a claim under § 1983 because it is not a
"person" entitled to relief under that statute when
it is seeking, as here, to vindicate only a sovereign
resolve the remaining issues raised in this case, we adopt
our decision in the companion case of Ute Indian Tribe v.
Lawrence, No. 16-4154 (August 25, 2017).
Mr. Becker and the Tribe executed the Contract, which made
Mr. Becker a manager in the Tribe's Energy and Minerals
Department. He was to receive a salary of $200, 000 and 2% of
"net revenue distributed to Ute Energy Holding, LLC from
Ute Energy, LLC." Becker Compl. at Ex. 1 (the Contract),
Aplt. App., Vol. I at 46. The two LLCs are tribal entities
"capitalized with . . . oil and gas interest[s] . . .
held in trust for the Tribe by the United States."
Id. at Ex. 3 (Tribal Court Complaint), Aplt. App.,
Vol. I at 56. Mr. Becker resigned in 2007. He claims that the
Tribe breached its compensation promises while the Tribe
maintains that he was part of a scheme to defraud it out of
valuable interests in oil and gas.
parties' litigation began when Mr. Becker filed suit in
the United States District Court for the District of Utah
seeking damages. The court dismissed the suit for lack of
subject-matter jurisdiction because the claim did not arise
under federal law. We affirmed in Becker v. Ute Indian
Tribe, 770 F.3d 944 (10th Cir. 2014). Mr. Becker then
filed suit in Utah state court in December 2014. In July 2015
the state court rejected the Tribe's attempt to have the
action dismissed on the grounds that the state court lacks
jurisdiction and that the Tribe is protected by tribal
sovereign immunity. The Tribe sued in federal court the
following June to enjoin the state proceeding on the ground
that the state court lacks jurisdiction to hear the
parties' dispute. But the district court dismissed the
Tribe's federal suit for lack of federal-court
subject-matter jurisdiction. That dismissal is the subject of
a separate appeal in this court. See Ute Indian Tribe v.
Lawrence, No. 16-4154.
been unsuccessful in state and federal court, the Tribe
turned to tribal court, seeking, among other things,
declarations (1) that the Contract is void because it grants
Mr. Becker a tribal trust asset without federal-government
approval, in violation of both federal and tribal law, and
(2) that its purported waiver of sovereign immunity in the
Contract was executed in violation of tribal law. Mr. Becker
responded on September 14, 2016, by filing this action
against the Tribe and affiliated entities. The district court
promptly granted Mr. Becker's request for a temporary
restraining order against the tribal-court proceeding. While
awaiting a hearing on Mr. Becker's request for a
preliminary injunction, the Tribe filed counterclaims against
Mr. Becker and third-party claims against the judge presiding
over Mr. Becker's state action, including claims under
§ 1983 seeking an injunction against the state-court
proceedings on the ground that they violate the Tribe's
due-process rights. The district court later granted Mr.
Becker a preliminary injunction. It also dismissed the
Tribe's § 1983 claims without prejudice. And,
adopting the decision by the district court in the related
case of Ute Indian Tribe v. Lawrence, Case No.
2:16-CV-00579-RJS (Aug. 16, 2016), the court in this case
dismissed the Tribe's remaining counterclaims and
third-party claims for lack of jurisdiction. (We reverse the
Lawrence dismissal today in a separate decision.)
THE PRELIMINARY INJUNCTION
jurisdiction under 28 U.S.C. § 1292(a)(1) to review the
grant of a preliminary injunction by a district court.
"We review the . . . grant of a preliminary injunction
for abuse of discretion. A district court abuses its
discretion when it commits an error of law or makes clearly
erroneous factual findings." Planned Parenthood of
Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th
Cir. 2014) (internal quotation marks omitted). A party must
establish four elements to obtain a preliminary injunction:
"(1) [that it has] a substantial likelihood of
prevailing on the merits; (2) [that it will suffer]
irreparable harm unless the injunction is issued; (3) that
the threatened injury outweighs the harm that the preliminary
injunction may cause the opposing party; and (4) that the
injunction, if issued, will not adversely affect the public
interest." Diné Citizens Against Ruining Our
Env't v. Jewell, 839 F.3d 1276, 1281 (10th Cir.
2016) (internal quotation marks omitted). "[E]ach of
these elements is a prerequisite for obtaining a preliminary
injunction . . . ." Id. We agree with the Tribe
that Mr. Becker has failed to establish the first element
because he has not shown a substantial likelihood that he can
escape the tribal-exhaustion rule, which usually requires
that the issue of tribal jurisdiction be decided by the
tribal court in the first instance.
tribal-exhaustion rule states that "absent exceptional
circumstances, federal courts typically should abstain from
hearing cases that challenge tribal court jurisdiction until
tribal court remedies, including tribal appellate review, are
exhausted." Crowe & Dunlevy, P.C. v.
Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011) (internal
quotation marks omitted). The rule follows from the Supreme
Court's recognition "that Congress is committed to a
policy of supporting tribal self-government and
self-determination." Nat'l Farmers Union Ins.
Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985).
It ensures that "the forum whose jurisdiction is being
challenged [is provided] the first opportunity to evaluate
the factual and legal bases for the challenge."
parties do not dispute these general propositions. The only
matters in dispute are the Tribe's contention that
exhaustion is a matter of federal subject-matter jurisdiction
and Mr. Becker's contention that exhaustion is not
required because the Tribe waived exhaustion in the Contract.
We reject both contentions, holding that exhaustion is not a
jurisdictional matter and that Mr. Becker has not satisfied
his burden of showing waiver because he has failed to
establish the validity of the Contract. 
Is the Exhaustion ...