Danka Funding Co. v. Sky City Casino

Danka Funding Co. v. Sky City Casino (1999) 329 N.J. Super. 357, 747 A.2d 837, involved a casino on an Indian reservation. Danka Funding entered into two lease agreements with the Pueblo of Acoma, a federally recognized Indian tribe. The lease form contained a so-called "forum selection clause," whereby the tribe consented to the jurisdiction of "any local, state or federal court" and the application of the law of the state in which the lease processing center is located. (Id. at p. 840.) The comptroller of the casino signed the agreements on behalf of the tribe. The tribe, as here, contended that the comptroller did not have authority under tribal law to waive immunity. (Id. at p. 841.) In Danka Funding, supra, 747 A.2d 837, the tribe's laws protected its sovereign immunity to the maximum extent possible and explicitly stated what procedures had to be followed in order to waive immunity. (Id. at pp. 841-842.) The Acoma Pueblo Tribal Council "has the power to waive the sovereign immunity of the Pueblo of ACOMA or by resolution, to authorize the Governor or his designate to waive the sovereign immunity of the Pueblo of ACOMA as limited in the resolution." (Ibid.) But the comptroller, not the council, purportedly waived the tribe's immunity by executing the lease form containing the forum selection clause. Such a waiver, according to the appellate court, was ineffective. The court concluded: "The requirement that the waiver be 'clear' and 'unequivocally expressed' is not something that may be flexibly applied or even disregarded based on the parties or the specific facts involved. Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1267 (10th Cir. 1998). 'In the absence of a clearly expressed waiver by either the tribe or Congress, the Supreme Court has refused to find a waiver of tribal immunity based on policy concerns, perceived inequities arising from the assertion of immunity, or the unique context of a case.' Ute Distribution Corp., 149 F.3d at 1267." (Danka Funding, supra, 747 A.2d at p. 841.)