! I I I I I I I I I. I i I I SETNO.B. ]In the Court Of _ppeai.u_j A_.S FILE_,_.,- ur J_n.Lur_A. State of _lr/_ona JUN $ 3.;7008. STEVEN individual,

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1 ! STEVEN ndvdual, HUALAPA soveregn ROSENBERG, entty, SETNO.B ]n the Court Of _ppea.u_j_ _A_.S FLE_,_.,- ur J_n.Lur_A State of _lr/_ona JUN $ 3.;7008 Plantff/Appellant VS. NDAN Defendant/Appellee _b_on (_n PHLP G. URRY, CLERK M.D., NATON, an a By... 1 CA-CV Mohave APPELLEE'S ANSWERNG BREF County Superor Court No. CV BURCH & CRACCHOLO, P.A. Theodore A. Julan, Jr., SBA # Melssa yer, SBA # East Osborn Road, Sute 200 Phoenx, Arzona Attorneys for Appellee

2 STEVEN ndvdual, HUALAPA soveregn ROSENBERG, Plantff/Appellant entty, VS. NDAN Defendant/Appellee _n the Court Of _4_pea_ State of _[r_ona Zgbson One M.D., NATON, an a 1 CA-CV Mohave APPELLEE'S ANSWERNG BREF County Superor Court No. CV BURCH & CRACCHOLO, P.A. Theodore A. Julan, Jr., SBA # Melssa yer, SBA # East Osbom Road, Sute 200 Phoenx, Arzona Attorneys for Appellee

3 TABLE OF CONTENTS STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 3 SSUES PRESENTED ON APPEAL... 7 STANDARD OF REVEW... 8 ARGUMENTS THE HUALAPA NATON HAS SOVEREGN MMUNTY... 8 A. Under Kowa, Soveregn mmunty s Not Affected by Whether the njury Arses n Contract or Tort, or On or Off the Reservaton, or Through Commercal or Governmental Enterprses... 9 B. Plantff's Efforts to Dstngush Morgan Are Unavalng.. 12 C. The Trbe's mmunty s Not Coextensve Wth the mmunty of Other Foregn Natons D. The Trbe Dd Not Wave ts mmunty E. Congress Dd Not "Wave" or Abrogate the Soveregn mmunty of the Hualapa ndan Naton THE STATE COURT HAS NO JURSDCTON OVER THE HUALAPA NDAN NATON CONCLUSON... 28

4 TABLE OF AUTHORTES CASES! Ackerman v. Southern Arz. Bank & Trust Co., 39 Arz. 488, 7 P.2d 945 ( Allen v. Gold Country Casno, 464 F.3d 1044 (9th Cr , 18, 28 Bassett v. Mashantucket Pequot Trbe, 204 F.3d 343 (2d Cr C&L Enters., lnc. v. Ctzen Band Potawatom lndan Trbe of Okla., 532 U.S. 411 ( Calforna v. Queehan Trbe of ndans, 595 F.2d 1153 (9th Cr Comes Flyng v. Unted States, 830 F. Supp. 529 (D.S.D , 24 DeFeo v. Sk Apache Resort, 120 N.M. 640, 904 P.2d 1065 (App DeMontney v. Unted States, 255 F.3d 801 (9th Cr , 18, 23 Dxon v. Pcopa Const. Co., 160 Arz. 251,772 P.2d 1104 ( Ellott v. Captal lntern. Bank & Trust, Ltd., 870 F. Supp. 733 (E.D. Tex Fler v. Tohono O'Odham Naton Gamng Enter., 212 Arz. 167, 129 P.3d 78 (App , 11, 14-16, 22, 26, 28

5 n re Greene, 980 F.2d 590 (9th Cr Kowa Trbe of Oklahoma v. Manufacturng Tech., lnc., 523 U.S. 751 ( , 10, 11, 14-16, 18, 27 Land Dept. v. O'Toole, 739 P.2d 1360, 154 Arz. 43 (App Lesoeur v. Unted States, 21 F.3d 965 (9th Cr Lnneen v. Gla Rver lndan Cmty, 276 F.3d 489 (9th Cr Maxa v. Yakma Petroleum, lnc., 924 P.2d 372 (Wash. App McClanahan v. Tax Comm 'n of Arz., 411 U.S. 164 ( Mescalero Apache Trbe v. Jones, 411 U.S. 145 ( Meyers v. Seneca Nagara Casno, 488 F. Supp. 2d 166 (N.D.N.Y Morgan v. Colorado Rver lndan Trbe, 103 Arz. 425,443 P.2d 421 ( , 12, 17, 26, 27 North Pac. ns. Co v. Swtzler, 924 P.2d 839 (Or. App Oklahoma Tax Commssons v. Ctzen Bank of Potowatom lndan Trbe, 498 U.S. 505 (

6 Ollestead v. Natve Vllage of Tyonek, 560 P.2d 31 (Alaska Pnk v. Modoc ndan Health Project, nc., 157 F.3d 1185 (9th Cr Pueblo of Acoma v. Padlla, 490 U.S ( Puyallup Trbe, nc. v. Department of Game, 433 U.S. 165 ( Reddng Ranchera v. Superor Court, 105 Cal. Rptr. 2d 773 (App , 17 S. Unque, Ltd. v. Gla Rver Pma-Marcopa ndan Cmty., 138 Arz. 378, 674 P.2d 1376 (App Sanchez v. Santa Ana Golf Club, nc., 104 P.3d 548 (N.M Santa Clara Pueblo v. Martnez, 436 U.S. 49 ( , 18, 22 Serra Club v. Whtman, 268 F.3d 898 (9th Cr State ex rel May v. Seneca-Cayuga Trbe of Oklahoma, 711 P.2d 77 (Okla Trbal Smokeshop, nc. v. Alabama-Coushatta Trbes of Texas ex rel. Trbal Councl, 72 F. Supp. 2d 717 (E.D. Tex Trudgeon v. Fantasy Sprngs Casno, 84 Cal. Rptr. 2d 65 (App v

7 Unted States v. Nordc Vllage lnc., 503 U.S. 30 ( Val/Del, nc. v. Superor Court, 145 Arz. 558, 703 P.2d 502 (App Whte Mountan Apache Trbe v. lndus. Comm 'n of Arz., Worchester 144 Arz. 129, 696 P.2d 223 ( v. Georga, 31 U.S. (6 Pet. 515 ( , 13 STATUTES 25 U.S.C , 24, U.S.C REGULATONS 36 C.F.R. 7.4(b... 3 l V

8 STATEMENT OF TlE CASE Ths s a neglgence acton fled by plantff Steven Rosenberg ("plantff" or "Rosenberg", who hurt hmself on June 22, 2005, when he fell out of a boat whle raftng on the Colorado Rver wth the Hualapa Rver Runners. See tem 1 at 1, 16. The Hualapa ndan Naton s a federally-recognzed soveregn naton whch operates l the Hualapa Rver Runners through ts wholly-owned trbal enterprses, Hwal 'Bay Ba:j Enterprses, nc. d/b/a Grand Canyon Resort Corporaton. ld. at 4. Although the Complant named other defendants n the capton, 2 only the Hualapa ndan Naton (the "Trbe" was supposedly served wth the summons and complant. See tem 7 at 2-3. See also tems 5, 6. Despte questonable servce and the fact that the superor court n Mohave County would not have jursdcton over a soveregn ndan trbe, when faced wth an Applcaton of Entry of Default, the Hualapa ndan Naton made a lmted appearance and fled a Moton to Dsmss based on lack of jursdcton, soveregn mmunty, and mproper servce. See tems 5,6,7. of Record References to "tem" are to the documents as temzed n the Clerk's ndex on Appeal. Also named but not served were: Hwal'Bay Ba:J Enterprses, nc., Grand Canyon Resort Corporaton, and Dugan Steele, along wth some other fcttous ndvduals and enttes. -1-

9 The moton to dsmss was fully brefed, and the Superor Court heard oral argument on October 10, See tem 8 (Response; tem 11 (Reply; tem 12 (Mnute Entry settng Oral Argument. After the oral argument, but before the Court ruled on the moton to dsmss, the plantff fled the Frst Amended Complant and attached a varety of unauthentcated "exhbts" to the Complant. See tem 14. Shortly thereafter, the tral court granted the moton to dsmss on the bass of trbal soveregn mmunty. See tem 15. The defense then moved to strke the amended complant or, n the alternatve, requested that the court dsmss the amended complant on the same grounds, namely soveregn mmunty. See tem 16. The plantff's response and the reply n support of the moton to strke addressed the queston of whether the allegatons n the amended complant stll faled to state a clam upon whch relef could be granted. See tems 17, 18. The tral court ruled that both the amended complant and moton to strke were moot, and "reaffrmed" ts order grantng the moton to dsmss and further ordered that the amended complant lkewse be dsmssed wth prejudce. tem 19. A formal order dsmssng the complant and amended complant was entered on January 16, 2008 and plantff tmely notced hs appeal from that order. tems 23,

10 STATEMENT OF FACTS Much the same as the plantff attempted to dstract the tral court from the dspostve legal ssues by attachng wtness statements and exhbts to the Frst Amended Complant and ncludng exaggerated and nflammatory allegatons, the Openng Bref on appeal hghlghts "facts" and rehashes arguments that smply have no bearng on the core legal ssues. The hstorcal dspute between the Trbe and the Federal government regardng the boundares of ts reservaton, and the compromse n the federal regulatons exemptng the trbe from any regulatons regardng raftng on the Colorado Rver, has abgolutely nothng to do wth the trbe's soveregn mmunty. See Op. Bref at 6-7. See also 36 C.F.R. 7.4(b. Moreover, the descrpton of how the accdent occurred or the clams regardng the medcal treatment and njures, even f presumed to be true, have no bearng on the dspostve legal ssues. The Accdent Rosenberg was a tourst from llnos who was njured on June 22, 2005, when he fell out of a boat whle raftng on the Colorado Rver wth the Hualapa Rver Runners. tem 1 at 1, 16. As noted, the Hualapa ndan Naton s a federallyrecognzed soveregn naton, whch operates the Hualapa Rver Runners through ts wholly-owned trbal enterprses. tem 7 at 2. The Trbe operates ths one-day raftng -3-

11 trp outsde the Grand Canyon Natonal Park and s exempt from any state or federal regulaton stemmng from a hstorcal dspute regardng the reservaton boundary along the Colorado Rver as well as ts status as a soveregn naton. To the extent the plantff alleges that the accdent tself occurred "off-reservaton" because the plantff fell out of the boat closer to the north bank rather than the south bank of the rver, the court may accept ths as true, because t does not change the nevtable concluson that the state court has no jursdcton over the Hualapa Trbe. Plantff Sgned A Complete Release of Lablty The plantff knew that the Hualapa Rver Runners was owned and operated by the Hualapa ndan Naton, and he even sgned an "Assumpton of Rsk and Responsblty and Release of Lablty" agreeng not to sue the Trbe. tem 14, Ex RELEASE: n consderaton of servces or property provded,, and any mnor chldren for whch am parent, legal guardan or otherwse responsble, any hers, personal representatves or assgns, do hereby release: T-E HUALAPA TRBE AND TS BUSNESS CORPORATON, HWAL'BAY BA:J ENTERPRSES, NC. DONG BUSNESS AS GRAND CANYON RESORT CORPORATON. ts councl members, prncpals, drectors, offcers, agents, employees 3 The sgned Form s also attached as Appendx Ex. 1 to the Openng Bref.

12 and volunteers, from all lablty and wave any clam for damage arsng from any cause whatsoever. have read the foregong acknowledgment of rsk, assumpton of rsk and responsblty, and release of lablty. understand that by sgnng ths document may be wavng valuable legal rghts. d. Ths form may very well be redundant or unnecessary gven the Trbe's unque status as a soveregn naton, but the plantff's agreement to release the trbe of lablty and wave any clams aganst the Trbe does not mean the Hualapa trbe has expressly and unequvocally agreed to wave ts nheren t soveregn mmunty, nor does t authorze Stephen Rosenberg to sue the Hualapa trbal govemment n Mohave County Superor Court. Attempted Servce On the Hualapa Trbe The orgnal state court complant was fled February 16, tem 1.4 On July 10, 2007, plantff fled a "Notce of Servce of Summons and Complant Upon Defendant Hualapa ndan Naton." tem 4. The notce of servce and affdavt stated that servce of process had been accomplshed on the trbe on June 12, 2007 by sendng a copy by certfed mal to "Post Offce Box 179, Peach Sprngs, Arzona 4 Ths s actually the thrd lawsut plantffhas fled. He frst fled sut n trbal court on June 21, 2006 under Hualapa Trbal Court No CV-072, whch was voluntarly dsmssed. On August 11, 2006, plantff fled a "Frst Amended Complant" n Mohave County Superor Court (Cause CV but never served ths complant on any of the defendants, such that the acton abated under Rule 4(, Arzona.Rules of Cvl Procedure. d. Ths thrd Complant was then fled. tem

13 !!!! " d. Ex. 1 (Haglund Affdavt. The recept s addressed to "Charles Vaughn," but t was apparently sgned by an ndvdual named "Zepher." ld. There s nothng n the record to suggest who Zepher s or f he or she s authorzed to accept servce of process for the Haulapa Naton, nor s there any evdence that Mr. Vaughn or any member of the Trbal Councl receved the summons and complant. The Tral Court Dsmssal As prevously noted, t was after the oral argument on the moton to dsmss that plantff decded to fle an amended complant wth a number of exhbts desgned to "supplement" the oral argument and otherwse tant the tral court's consderaton of the pure legal ssues rased n the Rule 12 moton. 5 Shortly after the amended complant was fled, the tral court granted the moton to dsmss because the Hualapa Naton had soveregn mmunty. tem 15. Addressng the moton to strke the amended complant and alternatve moton to dsmss the amended complant, the tral court ruled that the amended complant and The attachment of unauthentcated wtness statements to an Amended Complant whle the moton to dsmss s pendng suggests that the only purpose was to "poson the well" both below and on appeal. Assumng mmunty was not dspostve and the case could proceed, these exhbts could and should have been strcken n accordance wth Arz. R. Cv. P. 12(f. See also Ackerman v. Southern Arz. Bank& Trust Co., 39 Arz. 488, 489, 7 P.2d 945, 945 (1932 (holdng that an 85 page, sngle space pleadng was properly strcken as "frvolous, [a] sham, and rrelevant.". -6-

14 the moton to strke were moot, and the court also "reaffrmed" ts frst order grantng the moton and further ordered that the amended complant be dsmssed wth prejudce, ld. SSUES PRESENTED ON APPEAL (1 Under the Unted States Supreme Court's decson n Kowa Trbe of Oklahoma v. Manufacturng Tech., lnc., 523 U.S. 751 (1998 and the Arzona Supreme Court's decson n Morgan v. Colorado Rverlndan Trbe, 103 Arz. 425, 443 P.2d 421 (1968, whch conclusvely hold that an ndan trbe enjoys mmunty from sut even for off-reservaton, commercal actvtes, does the Hualapa Trbe enjoy soveregn mmunty for ts off-reservaton, commercal actvtes? (2 Can the assumpton of rsk and release form sgned by the plantff consttute an explct and unequvocal waver of soveregn mmunty by the Hualapa Trbe? (3 Can the ndan Self-Determnaton and Educaton Assstance Act (25 U.S.C. 450, et seq, be construed as a congressonal abrogaton of the Trbe's soveregn mmunty when there was no 638 Contract between the Trbe and the Federal government n ths case, and the Act tself states that "[n]othng... shall be construed as... affectng, modfyng, dmnshng, or otherwse mparng the soveregn mmunty from sut enjoyed by an ndan trbe?"

15 ! STANDARD OF REVEW Whether an ndan trbe possesses soveregn mmunty s a queston of law revewed de novo. See Lnneen v. Gla Rver ndan Cmty, 276 F.3d 489, 492 (9th Cr., cert. dened, 536 U.S. 939 (2002; Fler v. Tohono O'Odham Naton Gamng Enter., 212 Arz. 167, 169, 129 P.3d 78, 80 (App Once mmunty s determned to exst, the questons of(l whether the trbe has waved ts mmunty, see Serra Club v. tt/htman, 268 F.3d 898, 901 (9th Cr. 2001, and (2 whether Congress has statutorly waved the trbe's mmunty, see DeMontney v. Unted States, 255 F.3d 801,805 (9th Cr. 2001, are also questons of law subject to a de novo revew. ARGUMENTS. THE HUALAPA NATON HAS SOVEREGN MMUNTY. The Openng Bref acknowledges what t must- that"[fjor nearly two hundred years, the Unted States Supreme Court has recognzed that ndan Trbes are 'ndependent poltcal communtes,' worthy of... soveregn mmunty." Op. Bref at 11. t also acknowledges that trbal mmunty has been determned to extend to a trbe's off-reservaton, commercal actvty by the Unted States Supreme Court's decson n Kowa and the Arzona Supreme Court's decson n Morgan. See Op. Bref at Even stll, the plantff obstnately refuses to accept that these -8-

16 decsons unequvocally bar a lawsut n state court aganst the Hualapa Naton. The Openng Bref thus urges an unprecedented, judcal abrogaton of mmunty, arguments whch were all rased and rejected by Kowa and by Morgan and ther progeny. A. Under Kowa, Soveregn mmunty s Not Affected by Whether the njury Arses n Contract or Tort, or On or Offthe Reservaton, or Through Commercal or Governmental Enterprses. "t s nherent n the nature of soveregnty, not to be amenable to the sut of an! ndvdual wthout ts consent. Ths s the general sense and the general practce of manknd." The Federalst No. 81 (Alexander Hamlton (Jacob E. Cooke ed., Wesleyan U. Press Federally recognzed ndan trbes are "domestc dependent natons" that exercse nherent soveregn authorty over ther members and terrtores, and "[s]uts aganst ndan trbes are thus barred by soveregn mmunty absent a clear waver by the Trbe or congressonal abrogaton." Oklahoma Tax Commssons v. Ctzen Bank of Potowatom ndan Trbe, 498 U.S. 505,509, 111 S. Ct. 905,909 (1991. Accordngly, "soveregn mmunty nvolves a rght whch the courts have no choce, n the absence of waver, but to recognze." Calforna v. Quechan Trbe of ndans, 595 F.2d 1153, 1155 (9 th Cr Although trbal mmunty has been recognzed for more than 175 years, see Worchester v. Georga, 31 U.S. (6 Pet. 515, 557 (1832, questons regardng the -9-

17 precse scope and reach of trbal mmunty have generated a wealth of jursprudence. Wthout excepton, these cases unversally uphold soveregn mmunty for both torts and commercal actvtes, both on and offthe reservaton. n fact, the queston of whether mmunty apples to atrbe's off-reservaton, non-governmental commercal actvtes was defntvely answered by the Supreme Court n Kowa Trbe of Oklahoma v. Manufacturng Tech., lnc., 523 U.S. 751 (1998. n Kowa, the Supreme Court held that "[t]rbes enjoy mmunty from suts on contracts, whether those contracts nvolve governmental or commercal actvtes and whether they were made on or offa reservaton." ld. at 760. The plantffacknowledges that the Supreme Court ruled n the Kowa case that soveregn mmunty s not waved even f the trbe engages n off-reservaton commercal actvty, but suggests that perhaps the Hualapa trbe does not have mmunty because there are few, f any, Unted States Supreme Court decsons decded snce Kowa whch address the ssue of soveregn mmunty for commercal, off-reservaton torts. Compare Op. Bref at wth Kowa, 523 U.S. at 760. Ths reasonng s completely backwards: The Supreme Court cannot enumerate each factual scenaro where soveregn mmunty apples; soveregn mmunty exsts n every case and every fact pattern unless abrogated by Congress or expressly waved by the trbe. Nothng n the Kowa opnon suggests otherwse. n fact, as Justce -10-

18 Stevens' dssent n Kowa ponted out, "nothng n the Court's reasonng lmts the rule to lawsuts arsng out of voluntary contractual relatonshps." Kowa, 523 U.S. at 766 (Stevens, J., dssentng. ndeed, snce the Supreme Court handed down the Kowa decson, plantffs have attempted to narrow the scope of ts holdng n the same manner proposed by Rosenberg here - namely, to lmt ts applcaton to off-reservaton, contract actons only. Where rased, ths argument has been unformly rejected: Plantff frst clams that torts, specfcally converson, are not precluded by soveregn mmunty ctng the Kowa decson--ths nterpretaton s ncorrect. Nothng n Kowa could be construed to lmt soveregn mmunty to contractual clams, n fact the Court expanded the scope of soveregn mmunty by ncludng contracts made off the reservaton for governmental or commercal actvtes. The court made no dstncton between tort and contract clams n applyng soveregn mmunty... To be sure, other courts have appled soveregn mmunty to tort clams. Trbal Smokeshop, lnc. v. Alabama-Coushatta Trbes of Texas ex tel. Trbal Councl, 72 F. Supp. 2d 717, 719 (E.D. Tex (emphass added. See also Fler v. Tohono O'Odham Naton Gamng Enter., 212 Arz. 167, 129 P.2d 78 (App (trbe held mmune from sut arsng from off-reservaton accdent; Trudgeon v. Fantasy Sprngs Casno, 84 Cal. Rptr. 2d 65, 67 (App ("t appears to be settled that a trbe's soveregn mmunty.., extends to commercal actvtes.., and that the mmunty apples to tort clams."; Reddng Ranchera v. Superor Court, 105 Cal

19 Rptr. 2d 773, 776 (App ("Tort suts are not excepted from the general mmunty rule... Any change or lmtaton of the doctrne (e.g., to exclude off-reservaton tort suts must come from Congress.". B. Plantff's Effort's to Dstngush Morgan Are Unavalng. Of course, even f the U.S. Supreme Court has not addressed a fact pattern nvolvng mmunty for tort clams that occur off-reservaton arsng from commercal pursuts, the Arzona Supreme Court dd decde ths precse ssue n Morgan v. Colorado Rver lndan Trbe, 103 Arz. 425, 427, 443 P.2d 421,423 (1968: "We are asked to decde f our state courts can take jursdcton over an ndan trbe whch has commtted a tort whle engaged n a busness enterprse wthn ths state and outsde of the exteror boundares of ts reservaton." n fact, the Morgan case s remarkably smlar because t nvolved a boatng accdent that occurred on the Colorado Rver whch was arguably outsde the reservaton boundary oftlae Colorado Rver ndan Trbe. The fact that the trbe allegedly commtted a tort off-reservaton arsng out of ts commercal operatons n the State of Arzona was "mmateral." ld. at 428, 443 P.2d at 424. As the state supreme court concluded: "We hold that the Colorado Rver ndan Trbe, beng a dependent soveregn mmune from sut, cannot be subjected to the jursdcton of our courts wthout ts consent or the consent of Congress." ld. at 428, 443 P.2d at

20 The plantff's only crtcsm of the Morgan case s the smple observaton that the case was decded almost 40 years ago and that there have certanly been a number of cases addressng soveregn mmunty snce then. Actually, trbal soveregn mmunty has been the law of the land for more than 175 years, as frst artculated by Chef Justce Marshall n Worchester v. Georga, 31 U.S.(6 PET. 515,557, 8 L.Ed. 483,499 (1832. Thus, t s not surprsng the Arzona Supreme Court's decson n Morgan has not been questoned n the last 40 years: The other cases cted by the plantff as beng "analogous" are nothng of the sort. See Op. Bref at The Mescalero Apache Trbe case dealt wth the State of New Mexco's rght to tax a trbe for t's busness operatons n the state. See MescaleroApache Trbe v. Jones, 411 U.S. 145, 93 S. Ct (1973. t does not 6n fact, the Morgan case has been cted as postve authorty by numerous courts, ncludng the Arzona Supreme Court, see, e.g., Dxon v. Pcopa Const. Co., 160 Arz. 251, P.2d 1104, 1110 (1989; the Arzona Court of Appeals, see, e.g., Land Dept. v. O'Toole, 739 P.2d 1360, 1363, 154 Arz. 43, 46 (App. 1987; Val/Del, lnc. v. Superor Court, 145 Arz. 558, 560, 703 P.2d 502, 504 (App. 1985, the Nnth Crcut, see, e.g., n re Greene, 980 F.2d 590, 593 (9th Cr. 1992; Federal Dstrct courts, Ellott v. Captal lntern. Bank & Trust, Ltd., 870 F. Supp. 733, 735 CE.D. Tex. 1994, and several state courts, see, e.g., Ollesteadv. Natve Vllage of Tyonek, 560 P.2d 31, 33 (Alaska 1977; State ex rel. Mayv. Seneca-Cayuga Trbe of Oklahoma, 711 P.2d 77, 78 (Okla t was even cted wth approval by Justce Whte of the Unted States Supreme Court. See Pueblo ofacoma v. Padlla, 490 U.S (1989 (Whte, J, dssentng from denal of certorar. n fact, Morgan contans no negatve ctng references at all. -13-

21 ! stand for the proposton that a prvate ndvdual can mantan a lawsut for damages aganst the trbe. See Fler, 212 Arz. at 167, 129 P.2d at 78 (The fact that the ndan trbe s subject to state regulaton of ts lquor lcense does not confer a prvate rght of acton nor amount to a waver of mmunty. n the DeFeo v. Sn" Apache Resort case, the New Mexco court of appeals held that the trbe dd have soveregn mmunty, but commented that f the conduct had occurred off-reservaton, the Dstrct Court may have jursdcton to hear a breach of contract clam aganst a trbal busness regstered and authorzed to do busness n the state. See DeFeo v. Sk Apache Resort, 120 N.M. 640, 904 P.2d 1065 (App Ths has nothng to do wth the trbe's mmunty, whch s the precse ssue that was later decded by the U.S. Supreme Court n Kowa. See Kowa, 523 U.S C. The Trbe's mmunty s Not Coextensve Wth the mmunty of Other Foregn Natons. n addton to hs straned attempt to dstngush Morgan or to narrowly construe the holdng n Kowa, the plantffalso attempts to force an analogy between trbal mmunty and the mmunty afforded to foregn natons pursuant to the Foregn Soveregn mmuntes Act ("FSA". Op. Bref at 14, ("ndan natons possess soveregn mmunty equal to, but not greater than, that possessed by other soveregn natons.". Whle the orgns of trbal soveregn mmunty have oten been explaned - 14-

22 as beng smlar to the mmunty enjoyed by other soveregn natons, trbal mmunty s not dentcal to the mmunty of foregn natons nor s t subject to any lmtatons that Congress may have establshed for clams aganst foregn countres n FSA. See 28 U.S.C n fact, ths dentcal argument was rased and rejected by the Nnth Crcut recently n Allen v. Gold Country Casno, 464 F.3d 1044 (9th Cr Allen further argues that we should analogze the purported waver of trbal mmunty to wavers of mmunty under the Foregn Soveregn mmuntes Aet ("FSA", 28 U.S.C That Act specfes exceptons to the mmunty of foregn states, see 1605(a, whch the Trbe s not. As we ponted out n Rchardson v. Mr. Adams Furnture, the fact that Congress lmted the mmunty of foregn soveregns smply underscores the breadth of soveregn mmunty n the absence of congressonal acton; because Congress has not lmted the mmunty of ndan trbes, t retans ts full force. To apply that provson to the Trbe would contravene the Supreme Court's decson n Kowa, holdng that trbal mmunty extended to commercal actvtes of the trbe. FSA also permts a waver of mmunty to be mpled, see 28 U.S.C. 1605(a(1, whle the Supreme Court permts no such mpled waver n the case of ndan trbes. We accordngly declne Allen's nvtaton to apply FSA by analogy to trbal soveregn mmunty. d. at (ctatons omtted (emphass added. See also Fler, 212 Arz. at 174, 129 P.2d at 85 ("Because the Nnth Crcut cases on ths pont are consstent and well reasoned we wll follow them."; Kowa, 523 U.S. at 756 ("trbal mmunty s a matter -15-

23 of federal law and s not subject to dmnuton by the States.". The fundamental flaw n the plantff's analyss of soveregn mmunty s llustrated by the "analoges" offered to suggest that trbal mmunty s coextensve wth that enjoyed by foregn natons. The plantff contends that f Kowa and Morgan are followed (as they must be, then "t]he trbe's drvers could run red lghts, drve at excessve speeds, gnore stop sgns, all whle leavng njured vctms wthout any redress. The trbe could open busness enttes anywhere n the state wthout purchasng workers' compensaton nsurance." Op. Bref at 19. Ths "parade of horrbles" s based on the faulty premse that mmunty from sut s the same as mmunty from state regulaton for the trbe's off-reservaton, commercal actvtes and even mmunty from crmnal conduct. Fortunately, Kowa also addressed the mportance of dstngushng between the two - We have recognzed that a State may have authorty to tax or regulate trbal actvtes occurrng wthn the State but outsde ndan country. To say substantve state laws apply to off-reservaton conduct, however, s not to say that a trbe no longer enjoys mmunty from sut... There s a dfference between the rght to demand complance wth state laws and the means avalable to enforce them. Kowa, 523 U.S. at 755 (emphass added. See alsofler, 212 Arz. at 172, 129 P.3d at 83 ("[A] state's power to regulate certan trbal actvtes and ts ablty to brng a lawsut aganst a trbe n state or federal court are not necessarly co-extensve. That -16-

24 s to say, soveregn mmunty may bar the latter but not the former.". Puttng asde the constant refran that the U.S. Supreme Court has expressed "dspleasure" wth upholdng absolute trbal mmunty, partcularly for purely busness actvtes or contracts off the reservaton, the plantff does not cte to any ease from any jursdcton to explan why mmunty would not exst n ths case. nstead, the plantffs askng ths Court to not only gnore bndng precedent of both the Unted States Supreme Court and the Arzona Supreme Court, but to go one step further and judcally usurp the exclusve authorty of the Unted States Congress, whch s the only branch of government that can abrogate soveregn mmunty. See Op. Bref at (urgng court to "draw" the "boundary" of trbal mmunty. He even makes the novel suggeston that ths Court has the power to do so. See Op. Bref at 25, n.3 (urgng that courts, not Congress have power to restrct mmunty. To the contrary, all courts that have consdered the ssue have unversally coacluded that f there s to be any lmtaton on trbal soveregn mmunty, t s up to Congress, and not the courts, to decde. See Santa Clara Pueblo v. Martnez, 436 U.S. 49, 56 (1978 ("Congress has plenary authorty to lmt, modfy or elmnate the powers of local self-government whch the trbes otherwse possess."; Morgan, 103 Arz. at 428, 443 P.2d at 424 ("t s clear that Congress alone must determne the extent to whch mmuntes afforded trbal status are to be wthdrawn." ; ReddngRanchera -17-

25 v. Superor Court, 105 Cal. Rptr. 2d 773,776 (App ("Any change or lmtaton of the doctrne (e.g., to exclude off-reservaton tort suts must come from Congress.". Thus, the Supreme Court n Kowa dd not confne soveregn mmunty to reservatons or to non-commercal actvtes, and concluded by statng "we defer to the role Congress may wsh to exercse n ths mportant judgment." Kowa, 523 U.S. 751,758 (1998. D. The Trbe Dd Not Wave ts mmunty The trbe's soveregn mmunty s absolute and cannot be lmted except by an act of Congress or the Trbe's own express and unequvocal waver of mmunty. "t s settled that a waver of soveregn mmunty 'cannot be mpled but must be unequvocally expressed.'" Santa Clara Pueblo v. Martnez, 436 U.S. at (1978 (ctatons omtted. ndeed, "[t]here s a strong presumpton aganst waver of trbal soveregn mmunty." Demontney v. Unted States, 255 F.3d 801, 811 (9th Cr As prevously dscussed, soveregn mmunty s no.!t "waved" or otherwse affected by the fact that a trbe engages n commercal actvtes, whether on or off the reservaton, see Kowa, 523 U.S. at 751; Allen, 464 F.3d at 1044, and the trbe does not wave ts mmunty merely by purchasng nsurance. Whte Mountan Apache Trbe v. ndustral Commsson of Arzona, 144 Arz. 129, 696 P.2d 223 (1985. Furthermore, any waver of mmunty "must be 'construed strctly n favor -18-

26 ! of the soveregn,' and not 'enlarge[d]... beyond what the language requres.'" Unted States v. Nordc Vllage lnc., 503 U.S. 30, 34 (1992 (ctatons omtted. See also S. Unque, Ltd. v. Gla Rver Pma-Marcopa lndan Cmty.,138 Arz. 378, 383, 674 P.2d 1376, 1381 (App ("[A]ny waver of mmunty s to be nterpreted lberally n favor of the Trbe and restrctvely aganst the clamant.". Plantff's "waver" argument stems from a msunderstandng of the Supreme Court's decson n the C & L Enterprses case and the far-fetched noton that the Trbe mpledly waved ts mmunty when the plantff sgned an assumpton of rsk and release of lablty. See C&L Enterprses, nc. v. Ctzen Band Potawatom lndan Trbe of Oklahoma, 532 U.S. 411 (2001. Unlke the C&L case where the Trbe drafted and sgned a contract agreeng to bndng arbtraton and that the judgment would be enforced under state law, n ths case the Hualapa Naton dd not have any contract or agreement wth the plantffat all. The Assumpton of Rsk and Release was sgned only by the plantff and amounted to a unlateral agreement by the plantff to wave any clam aganst the trbe and to release the Hualapa Naton of any lablty. There s nothng n ths nstrument ndcatng that the trbal councl expressly and unequvocally agreed to wave the ts nherent soveregn mmunty, let alone consented to be sued n state court. -19-

27 n the C & L Enterprses case, the trbe was not only a party to the contract, t prepared the contract, and ncluded provsons evdencng the trbe's express consent to be sued n state court. Frst, the contract contaned an arbtraton clause whereby the trbe agreed that"[a]ll clams or dsputes.., shall be decded by arbtraton" and that the arbtrator's decson "shall be fnal, and judgment may be entered upon t n accordance wth applcable law n any court havng jursdcton." Second, the trbe ncluded a choce of law provson n ts contract that expressly provded that t"shall be governed by the law of the place where the project s located," whch meant that the partes both agreed to be bound by Oklahoma law and that any judgment could be enforced n state court. Thus, when the plantff obtaned an arbtraton award aganst the trbe and attempted to enforce t n state court, the Supreme Court n C&L Enterprses ruled the judgment could be enforced n state court, as agreed by the partes, and that the Trbe had waved ts mmunty. n so holdng, the Supreme Court dd not judcally abrogate mmunty nor conclude that mmunty could be mpled under constructon of contract prncples. nstead, the Court ruled that "a trbe's waver must be 'clear" and that "the Trbe n ths case has waved, wth the requste clarty, mmunty from the sut C & L brought." C & L Enters., 532 U.S. at 418. t was not a matter of contract constructon, but rather the that fact that the trbe had, by express agreement (1-20 -

28 submtted to alternatve dspute resoluton procedures, (2 ncludng the entry of judgment aganst t, (3 by an Oklahoma Court, and (4 n accordance wth Oklahoma law. d. at 420. n ths case there s not even a contract between the l partes nor any nstrument sgned by the trbal councl expressly wavng soveregn mmunty and consentng to be sued n state court. gnorng the fact that there s no contract between the plantff and the Hualapa Naton, the plantff dstorts the C&L Enterprses reasonng to suggest that hs own waver of lablty and release of clams could somehow amount to a waver of trbal soveregn mmunty. The plantff seems to argue that n order for the court to "gve meanng" to the assumpton of rsk and waver of lablty form that he sgned, he must have some "valuable legal rghts" to wave, otherwse the assumpton of rsk and waver would be meanngless. See Op. Bref at Even f the plantff's unlateral agreement to release the trbe of any lablty s redundant or unnecessary, how could t possbly be construed aganst the Trbe to evscerate ts soveregn mmunty? Plantff's reasonng n ths regard s nonsenscal. Although there would not seem to be any other reported case n the country that stands for ths unusual theory, other ltgants have certanly tred- and unversally faled- to expand C & L Enterprses beyond ts logcal lmts. See e.g., Sanchez v. SantaAna Golf Club, nc., 104 P.3d 548, (N.M (refusng to construe -21 -

29 C & L Enterprses as permttng an "nadvertent waver" of soveregn mmunty; Meyers v. Seneca Nagara Casno, 488 F. Supp. 2d 166, (N.D.N.Y (Dstngushng C & L Enterprses and declnng plantff's nvtaton to fnd mpled waver of mmunty from employment materals. Smlarly, ths Court should reject plantff's contenton that hs own assumpton of rsk and agreement to release the Trbe consttutes an mpled waver by Hualapa Trbe of ts nherent mmunty as a soveregn naton. E. Congress Dd Not "Wave" or Abrogate the Soveregn mmunty of the Hualapa ndan Naton. "A Congressonal waver of trbal mmunty must [also] be unequvocal and explct." Fler, 212 Arz. at 173, 129 P.3d at 84. "[T]he fact that a statute apples to ndan trbes does not mean that Congress abrogated trbal mmunty nadoptng t." Bassettv. MashantucketPequot Trbe, 204 F.3d 343,357 (2d Cr When faced wth a clam that Congress has statutorly waved a trbe's mmunty, courts should "tread lghtly n the absence of clear ndcatons of legslatve ntent." Santa Clara Pueblo v. Martnez, 436 U.S. 49, 60 (1978. Plantff correctly ponts out that Congress can abrogate or lmt soveregn mmunty, but then confuses ths authorty wth the ndan Self-Determnaton and Educaton Assstance Act passed by Congress under Publc Law "Self

30 Determnaton contracts" or "Secton 638 contracts," as they are called, further the goal of ndan self-determnaton by allowng the trbes to enter nto contracts wth the Secretary of the nteror and the Secretary of Health and Human Servces to admnster programs that otherwse mght be admnstered by the federal government. See 25 U.S.C. 450f(a (1994. See also Demontney, 255 F.3d at (dscussng purpose and provsons of the Act. These programs often nclude contracts pertanng to educaton, medcal servces, constructon and law enforcement. n ths case the plantff confuses the provsons n the Federal Code allowng 638 Contract cases be prosecuted aganst the Federal Government, all the whle gnorng that there s no 638 "self-determnaton" contract regardng the Hualapa Rver Runners/ See Lesoeur v. Unted States, 21 F.3d 965 (9 th Cr. 1994(The U.S. government could not be sued under the Federal Tort Clams Act for decdng not to regulate the rver raftng actvtes of the Hualapa Naton. Even f recreatonal raftng trps for toursts could fall wthn the types of 7Notably, there s no "self-determnaton" contract n the record. Rather, the Openng Bref (at 32 smply asserts that "the federal government has obvously entered nto numerous mplct self determnaton contracts wth the trbe." To the contrary, the exstence of such a contract cannot be presumed under the Act. As one court explaned, "the relevant contracts must be actually authorzed by the Self- Determnaton Act, not just theoretcally capable of beng authorzed." Comes Flyng, 830 F. Supp. at

31 publc assstance programs relegated to the trbe under a"self-determnaton" contract between the trbe and the U.S. government, t does not amount to a congressonal waver of trbal mmunty nor allow ltgants to sue trbal governments n state court. To the contrary, trbes admnsterng Secton 638 contracts are deemed to have the full protecton of federal law, meanng that trbal employees or contractors are federal employees who are part of the publc health servce n the Department of Health and Human Servces. As such the exclusve remedy for clams aganst them would be under the Federal Tort Clams Act ("FTCA". See 25 U.S.C. 450f(d. "n short, the law allows persons to recover from the Unted States for losses arsng out l of the actons of employees who are workng under contracts authorzed by the Self- Determnaton Act." Comes Flyngv. Unted States, 830 F. Supp. 529, 530 (D.S.D The plantff also msunderstands the provsons requrng lablty nsurance, belevng that ths mght be construed as a waver of soveregn mmunty. Actually, Congress amended the Self-determnaton Act to requre the federal government to obtan lablty nsurance for the beneft of ndan Trbes, organzatons and contractors carryng out self-determnaton contracts. See 25 U.S.C. 450f(c(1. n fact, 450n(1 (emphass added of the act expressly prohbts ts provsons from beng nterpreted as a waver of trbal soveregn mmunty. t provdes that

32 ! "[n]othng n ths subchapter shall be construed as - (1 affectng, modfyng. dmnshng, or otherwse mparng the soveregn mmunty from sut enjoyed by an ndan trbe." See also Pnk v. Modoc ndan Health Project, nc., 157 F.3d 1185, (9th Cr ("Because the SDEAA does not effect trbal soveregn mmunty, the dstrct court was correct n holdng that the SDEAA could not confer subject matter jursdcton." Fnally, the Self-Determnaton Act provdes that any cvl acton brought ader September 30, 1990 "shall be deemed to be an acton aganst the Unted States and wll be defended by the Attorney General and be afforded the full protecton and coverage of the Federal Tort Clams Act." See 25 U.S.C. 450t"; Pub. L. No , 315, 103 Stat. 701,744 (1989. Thus, even f there had been a Secton 638 Contract for the Trbe to operate the Hualapa Rver Runners, the only acton would have been a federal tort clam aganst the Unted States, not a state tort clam aganst the Hualapa Naton. H. THE STATE COURT HAS NO JURSDCTON OVER THE HUALAPA NDAN NATON. The Openng Bref concludes wth the overly smplstc clam that the Arzona superor court would have personal and subject matter jursdcton over a soveregn ndan trbe as long as the accdent occurred"offreservaton." See Op. Bref at

33 Not surprsngly, the plantff cannot cte to any case n any jursdcton where an ndan trbe could be forced to appear and defend a tort acton n state court wthout the Trbe's express consent, s Whle there may be crcumstances where an ndan trbe may be subject to regulaton by the state or federal government, ncludng consensual agreements or ntergovemmental treates, there s nothng n the hstory of Amercan jursprudence that would confer a prvate rght of acton upon a tort clamant under these crcumstances. See Puyallup Trbe, lnc. v. Department of Game, 433 U.S. 165, 172 (1977 ("Absent an effectve waver or consent, t s settled that a state court may not exercse jursdcton over a recognzed ndan trbe."; See also Morgan v. Colorado Rver lndan Trbe, 103 Arz. 425, 443 P.2d 421 (1968 (Arzona courts could not take jursdcton over ndan trbe for tort commtted n Arzona and outsde the reservaton boundares; Fler v. Tohono 0 'Odham Naton Gamng Enterprse, 212 Arz. 167, 129 P.2d 78 (App (Prvate party cannot sue ndan trbe n state court for alleged volaton of state's lquor laws absent Congressonal waver of trbal 8 For example, Maxa v. Yakma Petroleum, lnc., 924 P.2d 372 (Wash. App. 1996, nvolved a sut aganst a trbal corporaton, not a drect sut aganst the trbe. Smlarly, North Pac. ns. Co v. Swtzler, 924 P.2d 839, (Or. App. 1996, nvolved the exercse of jursdcton n state court over three ndan trbe members, not the exercse of jursdcton over the trbe. As such, plantff's relance on these cases s msplaced. See Op. Bref at

34 mmunty or trbe's clear waver of mmunty. As the Supreme Court explaned n McClanahan v. Tax Comm 'n of Arz., 411 U.S. 164, (1973, "'t]he polcy of leavng ndans free from state jursdcton and control s deeply rooted n the Naton's hstory... t surely follows that Arzona may not assume such jursdcton n the absence of trbal agreement." The only defendant purportedly served wth the Summons and Complant n Mohave County Case No. CV was the Hualapa ndan Naton? Although t would not make a dfference n the outcome of ths partcular case, the fact that the Hualapa Trbe s the only defendant, as opposed to a wholly-owned trbal busness or even a trbal employee, helps llustrate that under no crcumstances could there be a prvate rght of acton aganst the Hualapa ndan Naton. t does not matter whether the clam arses out of tort or contract, or f ether the neglgence or the njury occurred on the reservaton or on state land. Unless the trbe consents to state court jursdcton and unequvocally waves ts mmunty from sut, the acton must be dsmssed for the falure to state a clam upon whch relef can be granted. Kowa 9The AppeUant's Openng Bref neglected to even menton that the underlyng Moton to Dsmss was premsed n part on the falure to properly serve the Hualapa Naton wth the Summons and Complant. The tral court dd not specfcally reach ths ssue because the Trbe's soveregn mmunty from sut was controllng. Even stll, mproper/nsuffcent servce of process s an ndependent bass to uphold the dsmssal of the complant

35 Trbe of Oklahoma v. Manufacturng Tech., nc., 523 U.S. 751 (1998; Morgan v. Colorado Rver ndan Trbe, 103 Arz. 425, 443 P.2d 421 (1968; Allen v. Gold Country Casno case, 464 F.3d 1044 (9th Cr. 2006; Fler v. Tohono O'Odham Naton Gamng Enter., 212 Arz. 167, 129 P.2d 78 (App CONCLUSON Plantff attempted to serve and sue a federally recognzed ndan trbe for neglgence that occurred on reservaton lands and a personal njury accdent that arguably occurred a few feet beyond the reservaton boundary. t does not matter where or how ths clam arose. Unless the Hualapa ndan Trbe consented to be sued n state court and clearly and unequvocally waved ts soveregn mmunty, the state court has no subject matter jursdcton to hear the ease. The dsmssal should be affrmed. RESPECTFULLY SUBMTTED ths._r_ay of June, BURCH & CRACCHOLO, P.A. /! T_eodore A. Julan, Jr., SBA # Melssa G. yer, SBA # East Osborn Road, Ste. 200 Phoenx, AZ Attorneys for Appellees

36 CERTFCATE OF COMPLANCE, Melssa G. yer, do hereby certfy that Appellant's Openng Bref s n complance wth Rule 14(a of the Arzona Rules of Cvl Appellate Procedure, n that t s double spaced wth a proportonate spaced typeface of Tmes New Roman, 14 pont, wth a total of 6986 words. M(elssa G yer t,/ Attorney for Appellees

37 CERTFCATE OF SERVCE n STATE OF ARZONA U County of Marcopa SS., MELSSA G. YER, do hereby certfy that am an attorney for the Appellees and that caused to be maled on ths date to the Appellants, two (2 copes each of the foregong Appellees' Answerng Bref as follows: Joel B. Robbns Robbns 301 East & Curtn, Bethany P.L.L.C. Home Road, Sut B-100 Phoenx, Arzona Attorney for the Appellant M_LSSA G. YER p- ll SUBSCRBED AND SWORN to before me ths _,_ a(day of m June, 2008, by Melssa G. yer. Notary [_ublc! My Commsson Expres: k- k_,_o o T - t.. MCHELE POWER NOTARY PUBLC - ARZONA MARCOPA COUNTY _f Comm. Expres January