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Briefing a Case - Part II(The Issue)

This Module's assignment is a continuation of teaching you how to brief a case. We focus is on identifying the issue of a case. The issue is set out in the form of a question and addresses the specific legal questions the case raises.

Before starting this assignment please review the tutorialin this folder as well as the overall case brief tutorial"How to Brief a Case".These tutorialswill provide you with an understanding of how to brief another part of a case - specifically theissue.Some cases may have only one issue, while others may have several.The issue is usually no more than one or two sentences in question format.

As background, in a case like this one, a plaintiff will start the case by filing a complaint with the trial court. In a complaint the plaintiff will set out counts which contain each cause of action, (the legal basis for the lawsuit), the plaintiff is alleging against the defendant.

For this assignment, please complete the following:

First read the case ofC & L Ent., Inc. v. Citizen Bank Potawatomi Indian Tribe of OK. You will find this case in this Module'sfolder.

Identify the issue or issues for this case.When youcreate own issuesremember they are the questions being presented to the judge based on the facts and applicable law.

Submit to Drop Box

Use the following format and submit your answers in a Word document - in yourown words.Always include the case style.

Issue I:Whether . . .

Issue II: Whether . . .

Paragraph - Below your issues, in a full paragraph(minimum 5 - 7 well written sentences) discuss the issue(s) and give your opinion as to whether youbelievethis is the main issue(s) inthe case. Does this dig deep enough into the heart of the matter at hand.

Do not quote unless specifically instructed to do so by your instructor. Use your own words.

• ATTACH your submission in the proper MS Word format .doc or .docxor.rtf
• Any technical problems with the above contact the helpdesk immediately. Their contact information is online -just click help and under the NEWS TAB (341-help).
• Include word count.
• Include word count.
• Originality:Do not quote.Always use your own words and give credit (citations). SeeUnderstanding Plag ActivityandHow to Avoid Plagi in Module 1 - Academic Integrity regarding citations and paraphrasing
• Always view your Originality Report, and resubmit if needed. To learn how to view your originality report, go to Course Content>MyCourses Tutorials>Dropbox>Viewing a (Originality Report).
• Normally little should be unoriginal (highlighted), proper names, case names, citations, etc. are fine.If your Originality Report is 20% or above this is a red flag! Check your originality report carefully. You may need to resubmit before the due date to earn credit.

Excerpt C & L Enterprises, Inc. Petitioner v. Citizen Band Potawatomi Indian Tribe Of Oklahoma Excerpt of opinion with changes 3 of 829 DOCUMENTS C & L ENTERPRISES, INC., PETITIONER v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA No. 00-292 SUPREME COURT OF THE UNITED STATES 532 U.S. 411; 121 S. Ct. 1589; 149 L. Ed. 2d 623; 2001 U.S. LEXIS 3374; 69 U.S.L.W. OPINION JUSTICE GINSBURG delivered the opinion of the Court. This Court held [in a prior case] that an Indian tribe is not subject to suit in a state court -- even for breach of contract involving off-reservation commercial conduct -unless Congress has authorized the suit or the tribe has waived its immunity. This case concerns the impact of an arbitration agreement on a tribe's plea of suit immunity. The document on which the case centers is a standard form construction contract signed by the parties to govern the installation of a foam roof on a building, the First Oklahoma Bank, in Shawnee, Oklahoma. The building and land are owned by an Indian Tribe, the Citizen Potawatomi Nation (Tribe). The building is commercial, and the land is offreservation, nontrust property. The form contract, which was proposed by the Tribe and accepted by the contractor, C & L Enterprises, Inc. (C & L), contains an arbitration clause. The question presented is whether the Tribe waived its immunity from suit in state court when it expressly agreed to arbitrate disputes with C & L relating to the contract, to the governance of Oklahoma law, and to the enforcement of arbitral awards "in any court having jurisdiction thereof." We hold that, by the clear import of the arbitration clause, the Tribe is amenable to a state-court suit to enforce an arbitral award in favor of contractor C & L. I Respondent Citizen Potawatomi Nation is a federally recognized Indian Tribe. In 1993, it entered into a contract with petitioner C & L for the installation of a roof on a Shawnee, Oklahoma, building owned by the Tribe. The building, which housed the First Oklahoma Bank, is not on the Tribe's reservation or on land held by the Federal Government in trust for the Tribe. The contract at issue is a standard form agreement copyrighted by the American Institute of Architects. The Tribe proposed the contract; details not set out in the form were inserted by the Tribe and its architect. Two provisions of the contract are key to this case. First, the contract contains an arbitration clause[as follows]: All claims or disputes between the Contractor [C & L] and the Owner [the Tribe] arising out of or relating to the Contract, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise . . . . The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The American Arbitration Association Rules to which the clause refers provide [that p]arties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof. Second, the contract includes a choice-of-law clause that reads [that t]he contract shall be governed by the law of the place where the Project is located.Oklahoma has adopted a Uniform Arbitration Act, which instructs that the making of an agreement . . . providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this act and to enter judgment on an award thereunder. The Act defines court as any court of competent jurisdiction of this state. After execution of the contract but before C & L commenced performance, the Tribe decided to change the roofing material from foam (the material specified in the contract) to rubber guard. The Tribe solicited new bids and retained another company to install the roof. C & L, claiming that the Tribe had dishonored the contract, submitted an arbitration demand. The Tribe asserted sovereign immunity and declined to participate in the arbitration proceeding. It notified the arbitrator, however, that it had several substantive defenses to C & L's claim. On consideration of C & L's evidence, the arbitrator rendered an award in favor of C & L for $ 25,400 in damages (close to 30% of the contract price), plus attorney's fees and costs. Several weeks later, C & L filed suit to enforce the arbitration award in the District Court of Oklahoma County, a state court of general, first instance, jurisdiction. The Tribe appeared specially for the limited purpose of moving to dismiss the action on the ground that the Tribe was immune from suit. The District Court denied the motion and entered a judgment confirming the award. The Oklahoma Court of Civil Appeals affirmed, holding that the Tribe lacked immunity because the contract giving rise to the suit was between an Indian tribe and a non- Indian" and was "executed outside of Indian Country. The Oklahoma Supreme Court denied review, and the Tribe petitioned for certiorari in this Court. While the Tribe's petition was pending here, the Court decided [the case of] Kiowa, holding [that t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation,[and that a]n Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. Thereafter, we granted the Tribe's petition in this case, vacated the judgment of the Court of Civil Appeals, and remanded for reconsideration in light of Kiowa. On remand, the Court of Civil Appeals changed course. It held that, under Kiowa, the Tribe here was immune from suit on its contract with C & L, despite the contract's offreservation subject matter. The court then addressed whether the Tribe had waived its immunity, [stating that t]he agreement of [the] Tribe to arbitration, and the contract language regarding enforcement in courts having jurisdiction the court observed seem to indicate a willingness on [the] Tribe's part to expose itself to suit on the contract. But, the court quickly added, the leap from that willingness to a waiver of immunity is one based on implication, not an unequivocal expression. Concluding that the Tribe had not waived its suit immunity with the requisite clarity, the appeals court instructed the trial court to dismiss the case. The Oklahoma Supreme Court denied C & L's petition for review. Conflicting with the Oklahoma Court of Civil Appeals' current decision, several state and federal courts have held that an arbitration clause, kin to the one now before us, expressly waives tribal immunity from a suit arising out of the contract. We granted certiorari to resolve this conflict, and now reverse. II Kiowa, in which we reaffirmed the doctrine of tribal immunity, involved an offreservation, commercial agreement (a stock purchase) by a federally recognized Tribe. The Tribe signed a promissory note agreeing to pay the seller $ 285,000 plus interest. The note recited [that n]othing in this Note subjects or limits the sovereign rights of the Kiowa Tribe of Oklahoma. The Tribe defaulted, the seller sued on the note in state court, and the Tribe asserted sovereign immunity. We upheld the plea. Tribal immunity, we ruled in Kiowa, extends to suits on off-reservation commercial contracts. The Kiowa Tribe was immune from suit for defaulting on the promissory note, we held, because congress had not abrogated [the Tribe's] immunity, nor had petitioner waived it. Like Kiowa, this case arises out of the breach of a commercial, off-reservation contract by a federally recognized Indian Tribe. The petitioning contractor, C & L, does not contend that Congress has abrogated tribal immunity in this setting. The question presented is whether the Tribe has waived its immunity. The construction contract's provision for arbitration and related prescriptions lead us to this conclusion. The arbitration clause requires resolution of all contract-related disputes between C & L and the Tribe by binding arbitration; ensuing arbitral awards may be reduced to judgment in accordance with applicable law in any court having jurisdiction thereof. For governance of arbitral proceedings, the arbitration clause specifies American ArbitrationAssociation Rules for the construction industry, and under those Rules, the arbitration award may be entered in any federal or state court having jurisdiction thereof. The contract's choice-of-law clause makes it plain enough that a "court having jurisdiction" to enforce the award in question is the Oklahoma state court in which C & L filed suit. By selecting Oklahoma law (the law of the place where the Project is located) to govern the contract, the parties have effectively consented to confirmation of the award in accordance with the Oklahoma Uniform Arbitration Act. The Uniform Act in force in Oklahoma prescribes that, when an agreement . . . provides for arbitration in this state, i.e., in Oklahoma, jurisdiction to enforce the agreement vests in any court of competent jurisdiction of this state. On any sensible reading of the Act, the District Court of Oklahoma County, a local court of general jurisdiction, fits that statutory description. In sum, the Tribe agreed, by express contract, to adhere to certain dispute resolution procedures. In fact, the Tribe itself tendered the contract calling for those procedures. The regime to which the Tribe subscribed includes entry of judgment upon an arbitration award in accordance with the Oklahoma Uniform Arbitration Act. That Act concerns arbitration in Oklahoma and correspondingly designates as enforcement forums courts of competent jurisdiction of [Oklahoma]. C & L selected for its enforcement suit just such a forum. In a case involving an arbitration clause essentially indistinguishable from the one to which the Tribe and C & L agreed, the Seventh Circuit stated [that t]here is nothing ambiguous about the language [of the arbitration clause]. The tribe agrees to submit disputes arising under the contract to arbitration, to be bound by the arbitration award, and to have its submission and the award enforced in a court of law. The [tribal immunity] waiver is implicit rather than explicit only if a waiver of sovereign immunity, to be deemed explicit, must use the words 'sovereign immunity.' No case has ever held that. The Tribe strenuously urges, however, that an arbitration clause simply is not a waiver of immunity from suit. The phrase in the clause providing for enforcement of arbitration awards in any court having jurisdiction thereof, the Tribe maintains, begs the question of what court has jurisdiction. As counsel for the Tribe clarified at oral argument, the Tribe's answer is no court, on earth or even on the moon. No court -federal, state, or even tribal -- has jurisdiction over C & L's suit, the Tribe insists, because it has not expressly waived its sovereign immunity in any judicial forum. t Instead of waiving suit immunity in any court, the Tribe argues, the arbitration clause waives simply and only the parties' rights to a court trial of contractual disputes; under the clause, the Tribe recognizes, the parties must instead arbitrate. The clause no doubt memorializes the Tribe's commitment to adhere to the contract's dispute resolution regime. That regime has a real world objective; it is not designed for regulation of a game lacking practical consequences. And to the real world end, the contract specifically authorizes judicial enforcement of the resolution arrived at through arbitration. Tribe also asserts that a form contract, designed principally for private parties who have no immunity to waive, cannot establish a clear waiver of tribal suit immunity.. In appropriate cases, we apply the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it. That rule, however, is inapposite here. The contract, as we have explained, is not ambiguous. Nor did the Tribe find itself holding the short end of an adhesion contract stick: The Tribe proposed and prepared the contract; C & L foisted no form on a quiescent Tribe. For the reasons stated, we conclude that under the agreement the Tribe proposed and signed, the Tribe clearly consented to arbitration and to the enforcement of arbitral awards in Oklahoma state court; the Tribe thereby waived its sovereign immunity from C & L's suit. The judgment of the Oklahoma Court of Civil Appeals is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered