IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

Transcription

1 Michael J. Walleri (ABA # ) GAZEWOOD & WEINER, PC th Ave., Suite 200 Fairbanks, AK tel: (907) fax: (907) Attorneys for Defendant Newtok Village IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ALASKA LOGISTICS, LLC vs. - Petitioners, NEWTOK VILLAGE, d/b/a NEWTOK VILLAGE COUNCIL and GOLDSTREAM ENGINEERING, INC. - Defendants. CASE NO. 3:18-cv (SEG) MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (Fed. R. Civ. P. 12(b)(1)) Introduction. This is a motion to dismiss Alaska Logistics' claims against Newtok Village, (Tribe) because the claims are barred by the Tribe's sovereign immunity. Alaska Logistics actions in this case amount to a classic and transparent bait-and-switch, in which Alaska Logistics bid to provide freight services to Mertarvik at specified rates using specified measurements and attempted to changed the rates and measurements after the Tribe loaded its freight on Alaska Logistic's barge. The Tribe is asserting its tribal sovereign immunity to quickly resolve this frivolous lawsuit. Memo: Dismiss Page 1 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 1 of 15

2 I. BACKGROUND A. General. Newtok, Alaska is a Yupik Eskimo village located on the Bering Sea, in the Wade Hampton Census Area of Western Alaska, approximately 100 miles west of Bethel, Alaska. 1 The the Tribe is acknowledged by the Secretary of the Interior as a Federally Recognized Tribal Entity. 2 Newtok's Tribal Status is undisputed in these proceedings. 3 The Newtok Village Council is the governing body of the Tribe. 4 Between 1989 and 2006, Newtok has been included in six (6) federal disaster declarations as a result of storms, flooding, coastal/riverbank erosion and thermal degradation (thawing permafrost). 5 The Corps of Engineers has projected with a substantial degree of certainty that the village site will suffer future damage and destruction of homes and public facilities, ending in total/functional destruction of the village site in the near term. 6 As a result, the the Tribe is relocating to Mertarvik, a more secure location on Nelson Island, nine (9) miles from the current village site across the Ninglick River. 7 As part of the the Tribe relocation effort, the the Tribe initiated the Mertarvik Roads Project, to develop road infrastructure at the Mertarvik site. 8 The the Tribe engaged Goldstream 1 See Alaska Division of Community and Regional Affairs, Community Database Online, Newtok, (last visited July 5, 2018). 2 See Indian Entities Recognized and Eligible To Receive Services From the United State Bureau of Indian Affairs, 81 FR 5019 (January 29, 2016); See Newtok Village v Patrick, Case No. 4:15-cv RRB 3 See Complaint, para 2, 4 See Newtok Traditional Council v. Acting Alaska Regional Director, Bureau of Indian Affairs, Interior Board of Indian Appeals, 61 IBIA 167 (Aug. 6, 2015). 5 See DR1571-AK, DR1618-AK, DR4162-AK, DR0832-AK, DR1426-AK, DR1657-AK. See also FEMA 0909-AK, FEMA located at 6 See generally ALASKA NATIVE VILLAGES, Limited Progress Has Been Made on Relocating Villages Threatened by Flooding and Erosion (GOA ; June 2009) located at 7 Id. 8 Plt. Ex. A attached to Complaint, p. 5 (Doc. 1-1) Memo: Dismiss Page 2 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 2 of 15

3 Engineering to manage the project. 9 B. Bid. On March 17, 2017 the Tribe issued an Invitation to Bid on barging construction fuel, equipment and supplies to Mertarvik for the Mertarvik Roads Project. 10 Alaska Logistics bid on the project offering 1) a lump sum of price of $267,899 for up to 880,000 lbs ( $ per lb.) of freight 2) Up to 25,000 gal of $4.99/ gal. 3) Extra $.25 a lb 4) demurrage at $3 a day. 11 The Tribe awarded the bid to Alaska Logistics. Alaska Logistics submitted a draft contract, which was not accepted nor signed by the Tribe, any of its officials nor agents, and was not signed by Alaska Logistics or Goldstream Engineering. 12 C. Pre-Payment and Acceptance of Freight. It is admitted in the pleadings that on or about April 14, 2017, the Tribe pre-paid the full bid amount to Alaska Logistics amounting to $316,899 which included the $267,899 lump sum amount, plus $49,900- fuel (for an estimated 10,000 gal of fuel). 13 Roughly one month later, (prior to May 15, 2017) Alaska Logistics accepted, received and loaded the freight bound for Mertarvik. 14 After accepting, receiving and loading the freight, and after the departure of the barge, Alaska 9 Id., See Complaint, para 7 10 Plt. Complaint at para. 7 See IFB at Ex.A, (Doc. 1-1) attached to Complaint. The bid was amended, Complaint, at para 15, et. seq. The bid addenda is Ex. B, to Complaint (Doc. 1-2) 11 Complaint, Ex. C (Doc. 1-3) 12 Id. The draft contract had many problems including proposing a contract between Alaska Logistics and Goldstream, not the Tribe, and 2) lacked any provisions respecting compensation. Other problems with the draft contract are discussed below. ; 13 Def. (Newtok) Answer at para 92 and Plt. Answer to Counterclaims, at para Plt. Complaint at para 36 Memo: Dismiss Page 3 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 3 of 15

4 Logistics advised Goldstream Engineering that Alaska Logistics wanted more money to ship the freight. 15 Alaska Logistics' pleadings admit that its request for additional compensation was based using freight measurements other than the rate for straight poundage stated in Alaska Logistic's bid (i.e. twenty-foot equivalent units aka TEU's). 16 D. Delivery of Freight. On or about June 1, 2017 Alaska Logistics delivered some of the freight, 17 however, there are factual disputes as to whether all the freight and fuel was delivered as promised. 18 II. GOVERNING LAW. A. Fed. R. Civ. P. 12(b)(1) Dismissal of a claim is appropriate under Federal Rule of Civil Procedure Rule 12(b) (1) when the court lacks subject-matter jurisdiction over the claim. Federal subject-matter jurisdiction must exist at the time the action is commenced. Morongo Band of Mission Indians v. California Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). To the extent that a tribe possesses immunity from suit, such (s)overeign immunity deprives a court of jurisdiction. United States v. Jones, 225 F.3d 468, 469 (4th Cir., 2000). Specifically, sovereign immunity deprives the court of subject matter jurisdiction in an action against an Indian Tribe. Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, (9th Cir. 2007). 15 Id., see also Ex. D, (Doc. 1-4) attached to complaint. Cf. Alaska Logistic's bid offer contained at Exhibit C, (Doc. 1-3) attached to Complaint 16 Plt. Answer to Counterclaims, at para Plt. Complaint, para See Def. (Newtok) Answer para 97, 104, 105, 108. Cf. Plt Answer to Counterclaims at corresponding paragraphs. Memo: Dismiss Page 4 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 4 of 15

5 A Rule 12(b)(1) motion may either attack the sufficiency of the complaint to establish federal jurisdiction (a facial challenge) or allege a lack of jurisdiction that exists despite the formal sufficiency of the complaint (a factual challenge). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack asserts lack of federal jurisdiction based on the complaint alone, and the court must accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). By contrast, with a factual challenge, a court need not assume the truth of factual allegations but may hear additional evidence about jurisdiction and resolve factual disputes when necessary. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9 th Cir. 1987) If a defendant challenges jurisdiction by presenting evidence, then the party opposing the motion must present sufficient evidence to support the court's subject-matter jurisdiction. See Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003). Defendant here advances both a facial and a factual challenge to the complaint under the doctrine of sovereign immunity. B. Tribal Sovereign Immunity- Generally Indian tribes have long been recognized as possessing common-law immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Stated otherwise, Suits against Indian tribes are... barred by sovereign immunity absent a clear waiver by the tribe or Memo: Dismiss Page 5 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 5 of 15

6 congressional abrogation. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991); Stock West Corp. v. Lujan, 982 F.2d 1389, 1398 (9th Cir. 1993). Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Kiowa, 523 U.S. at 760; See also Michigan v. Bay Mills Indian Cmty. 572 U.S., 134 S.Ct. 2024, 2028 (2014). Moreover, a tribe's sovereign immunity extends both to tribal governing bodies and to tribal agencies which act as an arm of the tribe. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). As noted above, Courts have noted that tribal sovereign powers predate the establishment of the United States and are based on the tribes' status as autonomous political entities that retain certain natural rights related to self-governance. Ninigret Development Corp. v. Narragnasett Indian Wetuomuck Housing Authority, 207 F.3d 1, 29 (1st Cir. 2000), citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), the Court, citing previous decisions, described tribal immunity as emanating from the common law immunity from suit traditionally enjoyed by sovereign powers. Because this common law immunity is an inherent attribute of sovereignty similar to the immunity of the United States, it shields tribes from suit absent an express waiver by the tribe. See Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006). It is well-settled that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Santa Clara Pueblo, 436 U.S. at 58 & 60; United States v. Memo: Dismiss Page 6 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 6 of 15

7 Testan, 424 U.S. 392, 399, S.Ct. 948, 953, 47 L.Ed. 114 (1976); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). III. ANALYSIS Alaska Logistics admits that the Tribe is a federally recognized tribal entity, 19 to which it necessarily follows that the Tribe possesses immunity from suit based upon its tribal status. 20 Essentially, Alaska Logistics asserts a daisy-chain of implication: i.e. it seeks to imply Tribal consent to a waiver of sovereign immunity contained in an implied contact. Specifically, at paragraph 26 of its complaint, Alaska Logistics claims that the Tribe waived its immunity from suit, specifically alleging, NVC s agreement to the forum selection clause set forth in the Transportation Agreement constitutes a waiver of sovereign immunity to the extent NVC is entitled to invoke or is protected by such doctrine. 21 As noted above, tribal sovereign immunity comprehensively protects recognized American Indian tribes from suit absent explicit and unequivocal waiver or abrogation. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Implicit in Alaska Logistics' paragraph 26 allegation are the presumptions that the Tribe 1) was a party to Alaska Logistics' proposed Transportation Agreement, 2) agreed to the terms of the agreement, and 3) the terms included a consent to this suit. The proposed Transportation Agreement is not an explicit nor unequivocal waiver sovereign immunity, because none of these three (3) presumptions are correct. 19 Complaint para 2 20 Santa Clara Pueblo, 436 U.S. at 58 & Complaint para 26 Memo: Dismiss Page 7 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 7 of 15

8 A. The Tribe Was Not A Party To The Proposed Transportation Agreement. The proposed Transportation Agreement does not purport, by its terms, to be an agreement with the Tribe. 22 Rather, the introductory pre-amble of the agreement states that the agreement is between Alaska Logistics, as the Carrier, and Goldstream Engineering, as the Shipper. 23 If there was any ambiguity on this point, the signature block of the agreement proposes that the agreement be signed by Alaska Logistics, as the Carrier and Goldstream Engineering, as the Shipper. The agreement does not name the Tribe as a party to the agreement nor does the agreement anticipate the Tribe to be a signatory to the agreement. By its very terms, the agreement cannot be viewed as an agreement between Alaska Logistics and the Tribe and the agreement cannot be construed to grant any right or privilege to Alaska Logistics from the Tribe. More to the point, if the Tribe was never contemplated to be a party to the agreement, it is simply nonsensical to suggest the agreement constitutes an express and unequivocal waiver of the Tribe's immunities from suit as to claims arising under the agreement. B. The Tribe Did Not Agree To The Terms of the Agreement. Implicit in Alaska Logistic's paragraph 26 allegation is the assertion that the Tribe expressly and unequivocally agreed to waive the Tribe's immunity by expressly and unequivocally agreeing to Alaska Logistics' proposed Transportation Agreement. Of course, the argument rests upon an obvious fallacy: i.e.the Tribe never expressly nor unequivocally accepted the proposed Transportation Agreement upon which Alaska Logistics relies in support of its 22 Exhibit C attached to Plt's Complaint. 23 Id. Memo: Dismiss Page 8 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 8 of 15

9 claims. 24 Not only was the Tribe not a signatory party to the agreement, (see above), at no time did the tribe otherwise sign Alaska Logistics' proposed agreement. There is simply no legal authority to suggest that a Tribe expressly and unequivocally waives its immunity from suit when it declines to enter into an agreement which might be construed to waive such immunity. Recent Supreme Court precedence illustrates the requisite elements necessary to effectuate an express tribal waiver of immunity from suit and the relatively nuanced difference between finding a express and unequivocal waiver, as opposed to finding no waiver. In Kiowa the Court found no waiver of immunity from suit where the Tribe signed a promissory note agreeing to pay the seller $285,000 plus interest. 523 U.S. at The Court found that the signed note did not contain a waiver of immunity by the Tribe. 523 U.S., at 760 In reaching this holding the Court found that absent an express waiver contained in the signed memorialized agreement, no waiver could be implied. 25 In contrast, the Supreme Court in Citizen Band Potawatomi Indian Tribe v. C& L Enterprises, 532 U.S. 411 (2001), held that when a Tribe signs a contract with a clear arbitration provision and choice-of-laws clause which results in an agreement to arbitrate under state law, the Tribe has waived its sovereign immunity. 532 U.S., at 412. Alaska Logistics' assertion simply fails to approach the threshold of the nuanced distinctions illustrated in Kiowa and C& L Enterprises: i.e. a signed agreement. The critical threshold in both cases is that the Tribe signed agreements, and the question as to 24 See unsigned proposed Transportation Agreement- Exhibit C, attached to Plt. Complaint 25 Id. Memo: Dismiss Page 9 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 9 of 15

10 whether the agreements comprised a waiver was determined by the content of the agreements. In this case, the Court need not reach the questions presented by the content of the agreements because the Tribe never signed Alaska Logistics' proposed Transportation Agreement. To the extent that the proposed Transportation Agreement might be construed to waive the Tribe's immunity (which is disputed; see below) the Tribe's declination to sign the agreement renders Alaska Logistics' conclusion a non-sequitur. The Tribe did not consent to any waiver which might be contained in the agreement because the Tribe did not consent to the agreement itself. At best, Alaska Logistics seeks to imply a waiver of sovereign immunity based upon an unsigned implied agreement. Of course, tribal waivers of sovereign immunity may not be implied. Martinez, 436 U.S. at 60 (1978); Santa Clara Pueblo, 436 U.S. at 58; United States v. Testan, 424 U.S. 392, 399, S.Ct. 948, 953, 47 L.Ed. 114 (1976); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). Alaska Logistics' assertion is nothing more than a transparent attempt to imply a waiver of sovereign immunity, which is contrary to the black letter law that tribal waivers of sovereign immunity may not be implied Martinez, Martinez, supra; Santa Clara Pueblo, supra; Testan, supra; King, supra. Alaska Logistic's has not alleged an implied waiver based upon activities/actions of the Tribe. Such an allegation, if it were made, would be equally contrary to the prescription against implied waiver of tribal immunities. Pan Am. Co. v Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9 th Cir., 1989) (finding that where Congress has not specifically abrogated tribal immunity from suit, only tribal consent gives the courts the jurisdictional authority to adjudicate claims raised by or against tribal defendants ) (A) waiver of sovereign immunity cannot be inferred from [an Indian] Nation s engagement in commercial activity. Sac and Fox Nation, 47 F.3d, 1061, 1063 (10 th Cir., 1995) (finding that tribe was immune from suit in state court although suit resulted from commercial activity engaged in by the tribe outside of the nation s reservation). See also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991) (although tribe consents to court s jurisdiction over claims brought by it, that consent does not waive sovereign immunity for counterclaims brought against it); Maynard v Narragansett Indian Tribe, 984 F.2d 14, 16 (1 st Cir,m 1993) (declining to evaluate several factors to infer a tribe s waiver of sovereign immunity); American Indian Agricultural Credit Consortium, Inc., v Standing Rock Sioux Tribe, 780 F.2d 1374, (8 th Cir., 1985)(holding that a tribe s sovereign immunity cannot be waived by implication in contract actions); Seminole Tribe v Houghtaling, 589 So. 2D 1030, 1032 (Fla. Memo: Dismiss Page 10 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 10 of 15

11 C. The Terms Of The Proposed Transportation Agreement Did Not Include A Consent To This Suit. Even if the Tribe had elected to enter a contract with Alaska Logistics, nowhere in Alaska Logistics' proposed Transportation Agreement are any terms that would establish consent to this lawsuit. The relevant portion of Alaska Logistics proposed Transportation Agreement reads 4.3 Any action brought by either party to enforce any term or provision of this contract shall be commenced in the United States District Court for the Western District of Washington at Seattle, as appropriate. The parties submit to the exclusive personal and subject matter jurisdiction of the United State District Court located in Seattle, Washington with respect to any litigation arising out of this agreement, with the substantially prevailing party entitled to receive its reasonable legal fees and costs. Shipper hereby submits to the jurisdiction of the Courts of the United States District Court for the Western District of Washington at Seattle and consent to service of process by certified mail, return receipt requested, addressed in accordance with this contract. There are several obvious reasons why this provision does not constitute a consent to this suit by the Tribe. First, a signed agreement which permits a party to pursue rights and remedies provided by law, against a Tribe, provides for attorney fees in the event of a collection action, and that contains a choice of law provision, does not constitute a express waiver of sovereign immunity. American Indian Agricultural Credit Consortium, Inc., v Standing Rock Sioux Tribe,780 F.2d 1374, 1381 (8 th Cir., 1985); replied upon Ramey Const. Co. v Apache Tribe, 673 F.2d 315, 319 (10 th Cir., 1982) (holding no waiver of sovereign immunity where Tribe (1) agreed to an attorneys fees clause in the contract; (2) entered into a loan agreement with the Bank obligating the Tribe to duly pay and discharge... all App. 1991) (holding that a tribe was immune from suit despite its involvement in a commercial enterprise ), aff d,611 So.2d 1235 (Fla. 1993). Memo: Dismiss Page 11 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 11 of 15

12 claims of any kind... ; (3) submitted a certificate to the United States Economic Development Agency stating that the contract documents constitute valid and legally binding obligations upon the parties... ; (4) obtained payment and performance bonds from a surety; (5) consented to partial summary judgment with respect to the contract retainage; and (6) including a sue or be sued clause in the tribal corporate charter.) The relevant clause in Alaska Logistics' proposed Transportation Agreement provides no greater waiver than in the Ramey case. Second, this is not a suit commenced in the United States District Court for the Western District of Washington at Seattle. This is a suit commenced in the United States District Court for the District of Alaska. When a tribe waives its sovereign immunity, it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted. Arizona v Tohono O'Odham Nation, 818 F.3d 549, 562 (9 th Cir., 2016); See also J.L. Ward Assoc., Inc., v Great Plains Tribal Chairmen s Health Bd, 842 F.Supp.2d 1163, (DCSDSD, 2012) citing Mo. River Serv, Inc. v Omaha Tribe, 267 F.3d 848, 852 (8 th Cir., 2001) and Oglala Sioux v C.W. Enter. Inc., 542 F. 3d, 224, 231 (8 th Cir., 2008). The language referenced by Alaska Logistics does not consent to a suit in this Court, and cannot be construed as a waiver of immunity that would allow this action in this Court. Third, the clause at issue provides that the parties and, more specifically, the Shipper submit to the jurisdiction of the Federal Court in Washington. However, the agreement defines the terms parties to apply only to Alaska Logistics and Goldstream. Memo: Dismiss Page 12 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 12 of 15

13 Goldstream is identified as the Shipper. Under the terms of the agreement, the Tribe is neither the party nor the Shipper. While the language at issue suggests that parties and the shipper submit to federal court jurisdiction, the language does not apply to the Tribe since the Tribe is neither a party nor the Shipper. A plain reading of the clause referenced in Alaska Logistics' pleadings does not refer to the Tribe in any way, and does not constitute any express consent by the Tribe to submit to the jurisdiction of any court. Fourth, the clause at issue only addresses contract claims at best. Only two of Alaska Logistics' six counts are contract claims: i.e. Count I Breach of Contract, and Count II - Breach of Covenant of Good Faith and Fair Dealing. 27 The remaining Counts making allegations against the Tribe (Count III- Quantum Meruit; Count IV- Misrepresentation; and Count VI- Unfair Trade Practices) are not contractual claims. Sec 4.3 of the Agreement relates only to an action to enforce any term or provision of this contract. Counts III, IV and VI are not claims attempting to enforce a term or provision of the Contract. In Arizona v Tohono O'Odham Nation, 818 F.3d 549 (9 th Cir., 2016) the Tribe had signed a waiver of immunity relative to claims for violation of a gaming compact. Arizona brought other non-compact claims, including claims for fraud in the inducement, material misrepresentation, and promissory estoppel. See 818 F.3d, at As noted above, the 9 th Circuit noted that a tribe has the authority to limit its immunity waiver to address specified claims. Claims outside those specified claims remain barred by the tribe's sovereign immunity. Id. In applying this principal, the 9 th Circuit applied the canon of 27 Complaint at para Memo: Dismiss Page 13 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 13 of 15

14 construction obligating [the court] to construe a statute abrogating tribal rights narrowly and most favorably towards tribal interests. 818 F.3d, at 562, citing Rincon Band of Luiseno Mission Indians v Schwarzenegger, 606 F. 3d 1019, 1028n 9 (9 th Cir. 2010) In this case, as in Tohono O'Odham, the Plaintiff asserts non-contract claims. In particular, Alaska Logistics' fraud/misrepresentation are the same considered by the Court in Tohono O'Odham. Thus, even if the Tribe had elected to enter a the Agreement with Alaska Logistics, the language relied upon by Alaska Logistics would not constitute a waiver sovereign immunity as to the non-contract claims and this Court should, at a minimum, dismiss Counts III, IV and VI. IV. CONCLUSION In summary, this Court should dismiss Alaska Logistics' claims against the Tribe. Alaska Logistics' proposed Transportation Agreement is neither an explicit nor unequivocal waiver of the Tribe's sovereign immunity because the Tribe 1) was not a party to Alaska Logistics' proposed Transportation Agreement, 2) did not sign or otherwise agree to the terms of the agreement, and 3) the forum selection clause in the agreement did not constitute consent to this suit on behalf of the Tribe. The Court should dismiss Alaska Logistics' claims against the Tribe. Respectfully submitted this 6 th day of June, 2018 s// Michael J. Walleri Michael J. Walleri (ABA # ) GAZEWOOD & WEINER, PC th Ave., Suite 200 Fairbanks, AK Memo: Dismiss Page 14 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 14 of 15

15 tel: (907) fax: (907) Attorney for Newtok Village d/b/a Newtok Village Council Memo: Dismiss Page 15 of 15 Case 3:18-cv SLG Document 19 Filed 07/06/18 Page 15 of 15