Name of Assigned Judge or Magistrate Judge Elaine E. Bucklo
Sitting Judge if Other than Assigned Judge
Motion by Defendant Ponca Tribe of Indians of Oklahoma to vacate  is granted. The case is dismissed for lack of subject-matter jurisdiction.
O[ For further details see text below.] Docketing to mail notices.
Defendant Ponca Tribe of Indians of Oklahoma ("the Tribe") moves pursuant to Fed. R. Civ. P. 60(b)(4) to vacate the default judgment entered against it in this Court on September 5, 2008. For the reasons discussed below, the motion is granted.
In January 2005, plaintiff Merit Management Group ("Merit") agreed to loan the Tribe $122,500. When the Tribe allegedly failed to repay the amount due under the terms of the agreement, Merit filed suit in this Court for breach of contract. In doing so, Merit invoked the court's diversity jurisdiction. Despite being served with process and receiving notice of the proceedings, the Tribe never answered or responded to the suit. In September 2008, I entered a default judgment against the Tribe in the amount of $158,896.10 (plus additional amounts for legal fees and costs). In February 2011, after Merit filed an action in Western District of Oklahoma to enforce the judgment, the Tribe filed the instant motion in this Court seeking to vacate the judgment. The Tribe claims that the judgment is void because subject-matter jurisdiction was lacking over Merit's suit.
It is well-settled "that Federally recognized Indian tribes enjoy sovereign immunity from suit because they are 'domestic dependent nations' that exercise inherent sovereign authority over their members and territories." Big Horn County Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 954 (9th Cir. 2000). As a result, tribes are not citizens of states and, accordingly, are not subject to diversity jurisdiction. See, e.g., Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007) ("[A]n Indian tribe is not a citizen of any state and cannot sue or be sued in federal court under diversity jurisdiction."); see also Frazier v. Brophy, 358 Fed. App'x. 212, 213 (2d Cir. 2009); Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, 207 F.3d 21, 27 (1st Cir. 2000); CTGW, LLC v. GSBS, PC, No. 09-cv-667-bbc, 2010 WL 2739963, at (W.D. Wis. July 12, 2010) (collecting cases). Thus, "[a]bsent congressional or tribal consent to suit, state and federal courts have no jurisdiction over Indian tribes; only consent gives the courts the jurisdictional authority to adjudicate claims raised by or against tribal defendants." George v. Sycuan Casino, 19 Fed. App'x. 623, 624 (9th Cir. 2001) (quotation marks omitted). Courts have repeatedly emphasized that any waiver of sovereign immunity must be clear and unambiguous. See, e.g., Nanomantube v. Kickapoo Tribe in Kansas, 631 F.3d 1150, 1152 (10th Cir. 2011) ("[T]he waiver or abrogation of sovereign immunity must be unequivocally expressed rather than implied.") (quotation marks omitted).
Merit argues that the Tribe consented to being sued by virtue of an "exclusivity agreement" that the parties signed in connection with the loan transaction. In particular, Merit cites section 5 of the agreement, which in relevant part provides:
(a) Limited Waiver of Sovereign Immunity. The parties acknowledge that the Tribe is a federally recognized Indian Tribe and that the Tribe and its instrumentalities possess sovereign immunity from unconsented suit and other legal proceedings. Nothing in this Agreement shall be deemed to be a waiver of any Tribal Party's sovereign immunity, except as provided in this Section 5. Notwithstanding the foregoing, with respect to all Claims, the Tribe hereby irrevocably waives its sovereign immunity and the sovereign immunity of all other Tribal Parties, and all defenses based thereon, to permit as provided in this Section: (i) the adjudication or enforcement of Claims in any federal or state court of competent jurisdiction sitting in the State of Oklahoma and all courts to which appeals therefrom may be taken (each, a "Non-Tribal Court"), (ii) the arbitration of Claims as provided in Section 5(e), and (iii) judicial proceedings before any Non-Tribal Court or before any court or other forum of the Tribe of competent jurisdiction (each, a "Tribal Court") to determine the arbitrability of such Claim pursuant to this Section 5, or to enforce, modify, or vacate any arbitration award arising from such arbitration. The Tribe hereby irrevocably consents to the jurisdiction and venue of all Non-Tribal Courts and Tribal Courts.
Exclusivity and Dispute Resolution Agreement (Doc. 29-1) ¶ 5(a).
Merit seizes on the provision's final sentence, "[t]he Tribe hereby irrevocably consents to the jurisdiction and venue of all Non-Tribal Courts and Tribal Courts," as evidence that the Tribe has completely waived its sovereign immunity. When read in its entirety, however, it is clear that the terms "tribal court" and "non-tribal court" are defined in specific terms. In particular, a "non-tribal court" is, by definition, applicable only to courts located in Oklahoma (i.e., "any federal or state court of competent jurisdiction sitting in the State of Oklahoma and all courts to which appeals therefrom may be taken."). And if, as Merit claims, the Tribe intended categorically to waive its sovereign immunity, it is difficult to understand why it should have included it in a provision bearing the heading, "Limited Waiver of Sovereign Immunity." In consenting to jurisdiction in all "non-tribal courts," therefore, the Tribe did not waive sovereign immunity except in Oklahoma.
Merit advances a number of additional arguments, but these are unavailing. For example, Merit argues that the consent provision in the exclusivity agreement is permissive, not mandatory. According to Merit, many circuits have held that whereas a "mandatory forum selection clause has express language limiting the action to the courts of a specific locale which is clear, unequivocal and mandatory," a "permissive forum selection clause authorizes jurisdiction or venue in a selected forum, but does not prohibit litigation elsewhere." Resp. at 6. However, Merit does little to explain why the agreement's waiver clause ...