U.S. ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enterprise Management Consultants, Inc.

Decision Date28 August 1989
Docket NumberNo. 88-2311,88-2311
CourtU.S. Court of Appeals — Tenth Circuit

Michael Minnis (David McCullough with him, on the brief) of Michael Minnis & Associates, P.C., Oklahoma City, Okl., for plaintiff-appellant.

Randy Dean Witzke (David W. Edmonds with him, on the brief), Oklahoma City, Okl., for defendant-appellee.

Before LOGAN, McWILLIAMS, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

The Citizen Band Potawatomi Indian Tribe of Oklahoma (Tribe) brought this action against Enterprise Management Consultants, Inc. (EMCI) seeking a declaration that two bingo management contracts between the parties are void. Pending resolution

of the merits, the Tribe ejected EMCI from the bingo enterprise premises. The district court granted EMCI's motion for a preliminary injunction ordering the Tribe to return the premises and prohibiting it from interfering with EMCI's operation of the bingo enterprise. The Tribe appealed and obtained an emergency stay of the district court's order under Rule 8 of the Federal Rules of Appellate Procedure. We now vacate the injunction.


The instant litigation is but one manifestation of a long and acrimonious relationship between EMCI and the Tribe, which has generated three lawsuits and two petitions for writs. EMCI originally operated a bingo game on Tribal land under a management agreement executed in 1982. In 1984, EMCI sued the Tribe to enjoin it from interfering with EMCI's performance under the 1982 contract. In 1985, while that action was being pursued in district court, the parties entered into a second management agreement and EMCI dismissed its suit with prejudice.

The Tribe subsequently filed the instant action. The Tribe alleged that the contracts are, and always have been, null and void because they were not approved under 25 U.S.C. Sec. 81 (1982), which governs all agreements "made by any person with any tribe of Indians ... for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands." Id. Section 81 requires that any agreement to which it pertains must "bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it." Id. Section 81 further provides:

"All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe, or any one else, for or on his or their behalf, on account of such services, in excess of the amount approved by the Commissioner and Secretary for such services, may be recovered by suit in the name of the United States in any court of the United States, regardless of the amount in controversy; and one-half thereof shall be paid to the person suing for the same, and the other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom it was so paid."

Id. The Tribe sought an accounting of money obtained by virtue of the management agreements, as well as rent allegedly due under a business lease between the parties which had been approved by the Secretary. The Tribe also sought to have the lease declared terminated, and to obtain injunctive relief restraining EMCI from operating under the lease.

EMCI counterclaimed, seeking a judgment ordering the Tribe to submit the 1985 agreement to the appropriate federal officials for approval or to renegotiate the contract, and to indemnify it for any state sales tax due. In December 1986, the district court ordered the parties to submit the 1985 contract to the Bureau of Indian Affairs (BIA) for approval, ordered the BIA to act upon it within sixty days, and dismissed EMCI's counterclaim on the basis of the Tribe's sovereign immunity from suit.

In February 1987, the BIA issued a decision refusing to approve the contract. On April 7, the district court entered an order staying the court proceedings while EMCI completed an administrative appeal of the BIA decision. The order also prohibited the BIA and the Tribe from interfering with EMCI's operation of the bingo games under the 1985 agreement "pending exhaustion of administrative remedies." Rec., vol. I, doc. 185, at 3. The Tribe did not appeal this order. After the Assistant Secretary for Indian Affairs of the Department of Interior affirmed the initial agency decision not to approve the contract, the Tribe moved the district court to reopen the proceedings and renewed its motion for partial summary judgment under section 81. In response, the court issued an order In December 1987, EMCI filed a separate action in federal district court seeking judicial review of the administrative decision not to approve the 1985 contract. On January 19, 1988, the court in the instant action entered an order denying the Tribe's summary judgment motion. In so doing, the court referred to the separate action for judicial review as "part of the administrative remedies which must be exhausted before this court can render a decision." Id., doc. 204, at 2. In addition, the court again stayed the action pending a final district court decision in the separate suit. In April, the Tribe filed a motion requesting that the trial judge in this action recuse himself and that the two actions be consolidated and heard before the judge hearing EMCI's judicial review case.

                in October stating, in its entirety, "[f]or good cause shown, plaintiff The Citizen Band Potawatomi Indian Tribe of Oklahoma's motion to reopen proceedings is granted, and the stay order vacated."    Id., doc. 192, at 1

In May 1988, the court in EMCI's action ruled against EMCI. 1 On August 30, the Tribe ejected EMCI from the bingo enterprise premises. EMCI promptly filed an application for a temporary injunction and an order of contempt in this action. A hearing was held on EMCI's motions, at which EMCI argued that the Tribe had violated the order of April 7, 1987, prohibiting the Tribe from interfering with EMCI's operation of the bingo games, while the Tribe argued that the April 7 order expired by its own terms when EMCI exhausted its administrative appeal. The district court ruled the Tribe in contempt and ordered the Tribe to return the bingo operation to EMCI. A hearing was held in this court on the Tribe's emergency application for a stay of the district court order. After the Tribe's request for an emergency stay was granted, the district court issued an order vacating the contempt holding. Although the judge also denied the Tribe's motion to recuse, the next day he reconsidered and removed himself from the case.

On appeal, the Tribe asserts that 1) the district court had no jurisdiction to enter the preliminary injunction due to the Tribe's immunity from suit; 2) the court entered the injunction in violation of the Tribe's right to due process; and 3) the court abused its discretion in granting EMCI injunctive relief. We agree with the Tribe that the injunction constitutes an abuse of discretion and must therefore be vacated. 2


A preliminary injunction is an extraordinary remedy, the exception rather than the rule. GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.1984). Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established. Goldammer v. Fay, 326 F.2d 268, 270 (10th Cir.1964). In this circuit, a party seeking a preliminary injunction must satisfy four prerequisites:

"(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest."

Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). When the movant has established that he will suffer irreparable injury and that the balance of hardships tips decidedly in his favor, however, he may satisfy the probability-of-success factor by raising "questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry." Id. at 63 (quoting Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781-82 (10th Cir.1964)); Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268, 1271 n. 2 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); Tri-State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 358 (10th Cir.1986).

Although the grant or denial of a preliminary injunction is a matter committed to the district court's discretion, see Lundgrin, 619 F.2d at 63, we must scrutinize the exercise of that discretion with care, see Tri-State, 805 F.2d at 355. The district court's determination of the propriety of injunctive relief must be reviewed in light of the four Lundgrin factors set out above. See National Distrib. Co. v. James B. Beam...

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