Tushiе-Montgomery Associates, Inc. (called “TMI” by the parties) has taken an interlocutory appeal from a ruling by the district court in a suit in which an Indian tribe (and its casino subsidiary, but we can ignore this detail) seeks to void its contract with TMI. The contract was for architectural services in connection with a casino that the *658 tribe wanted built. After TMI had rendered substantial services and received a partial payment of $150,000, the leadership of the tribe changed and the new leadership repudiated thе contract. The leaders claimed that the contract was illegal because it had not been approved by the Bureau of Indian Affairs. The contract contained an arbitration clause, which TMI, claiming to be owed in excess of $400,000 undеr the contract (in addition to the $150,000 that it had already received), invoked. The tribe refused to participate in arbitration and instead brought this suit, claiming not only that the contract was void but also that the tribe had not waived its sovereign immunity from suit and therefore could not be forced to arbitrate the dispute, and seeking the return of the $150,-000. The arbitration went forward without the tribe’s participation and resulted in an award of more than $500,000 to TMI, which brought an action in state court to confirm the award. That аction has been stayed pending the outcome of the present suit.
The district court granted partial summary judgment for the tribe, ruling that the tribe had not waived its sovereign immunity either in the arbitration clause or by bringing this suit and therefore could not be forced to аrbitrate its dispute with TMI. The court then certified this ruling for an immediate appeal under 28 U.S.C. § 1292(b), and a panel of this court accepted the appeal.
There is an initial question whether the appeal is within the scope of section 1292(b), which is limitеd to orders that involve “a controlling question of law as to which there is substantial ground for difference of opinion and ... [from which] an immediate appeal ... may materially advance the ultimate termination of the litigation.” Although the motions pаnel decided to accept the appeal, the merits panel is entitled to reexamine the decision of the motions panel.
In re Healthcare Compare Corp. Securities Litigation, 75
F.3d 276, 279 (7th Cir.1996);
Johnson v. Burken,
There is no doubt that the district judge’s ruling barring judicial enforcement of the contract involves a question of law as to which thеre is a substantial ground for a difference of opinion. But there is doubt whether the question is “controlling” and whether an immediate appeal “may materially advance the ultimate termination of the litigation.” In its opening brief in this court TMI asserts, albeit only in a one-sentence footnote, that there is an additional ground for finding a waiver of sovereign immunity apart from the two grounds that it argued unsuccessfully to the district court, namely that the tribe explicitly consented to be sued in a provision in its tribal charter. If so, the decision of this appeal may not affect the course of the litigation in the district court, and in that event it would be difficult to see how the question of law presented by the appeal could be “controlling.” Since this problem first surfаced in TMI’s brief, filed after the motions panel accepted the appeal, it constitutes a changed circumstance, justifying our reexamining the motions panel’s decision.
The company’s additional ground for a waiver of sovereign immunity is, hоwever, plainly waived in this court by having been presented in the form of a short sentence asserting the ground purely as a conclusion, without any effort to support it. E.g.,
United States v. White,
Even if TMI could still argue in the district court its other ground for waiving
*659
soverеign immunity, this would not mean that the appeal does not present a “controlling” question of law. The cases do not interpret the term literally. A question of law may be deemed “controlling” if its resolution is quite likely to affect the further course of the litigation, even if not certain to do so.
Johnson v. Burken, supra,
Can the appeal materially advance the litigation? It might seem that having accepted the defense of sovereign immunity, the district court was within shouting distance of entering a final judgment for the tribe. Not so. All the defense of sovereign immunity does is prevent TMI from going to court, either to enforce the arbitration award or otherwise to obtain the money that it claims is owed to it by the tribe under the contract. The tribe wants more than not to be sued. It wants its $150,000 back. To get it back, it must resсind the contract, and to do this it must prove that the contract is illegal. If it has no right to rescind the contract, it has no right to get back the partial payment that it made pursuant to the contract.
It might seem that this issue will have to be determined howevеr the present appeal is decided. Not necessarily. If the tribe waived its sovereign immunity from suit, it may well be bound by the arbitration, which implicitly but unmistakably, by awarding TMI contract damages, determined that the contract was enforceable. If so, and if TMI wins this aрpeal, the case will be over without the district court’s having to try the issue of the contract’s validity.
The appeal is within our jurisdiction, and we can proceed to the merits. TMI’s principal ground for arguing that the tribe waived its sovereign immunity is the arbitration сlause itself, which after stating that “claims, disputes or other matters” arising out of or related to the contract “shall be subject to and decided by arbitration in accordance with the [rules] ... of the American Arbitration Association,” adds that the agreement to arbitrate “shall be specifically enforceable in accordance with applicable law in any court having jurisdiction” and that “judgment may be entered upon [the arbitration award] in accordance with applicable law in any court having jurisdiction thereof.” There is nothing ambiguous about this language. 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 lаw. To agree to be sued is to waive any immunity one might have from being sued. Although the arbitration clause is contained in a contract that the tribe contends is illegal, the tribe rightly does not argue that the illegality of the contract infects the arbitration сlause.
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
Doubt about the efficacy of the tribe’s waiver arises only because of statements in a number of judicial opinions that waivers or other overrides of tribal sovereign immunity must be explicit to be effectivе. These statements are found in two distinct classes of ease. In one, illustrated by
Santa Clara Pueblo v. Martinez,
But supposing there is such a requirement, we must ask whether the language of the arbitration clause might have hoodwinked an unsophisticated Indian negotiator into giving uр the tribe’s immunity from suit without realizing that he was doing so. We think this an extremely implausible, as well as condescending, suggestion. The arbitration clause could not be much clearer. It says that if there is a dispute under the contract it must be submitted to arbitration and that the arbitrator’s decision is final and is enforceable in court. No one reading this clause could doubt that the effect was to make the tribe suable. The waiver is at least as perspicuous as the statement — perhaps the only statement — that would satisfy the tribe’s current lawyer as constituting an explicit waiver of sovereign immunity: “The tribe will not assert the defense of sovereign immunity if sued for breach of contract.” The term “sovereign immunity” is a technical legal term, and anyone who knows what it means сan also understand the arbitration clause. The waiver in this case 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 examples are not limited to Indian law. When states or the federal government waive sovereign immunity, as in the Federal Tort Claims Act or the Tucker Act, they do not say they are waiving “sovereign immunity”; they create a right to sue, just as in the arbitration clause here. See, e.g., 28 U.S.C. §§ 1491, 2674. These waivers are effective, even though the sovereign immunity of states and the federal government, like that of Indian tribes though presumably for different reasons, may not be waived by implication.
United States v. King,
No appellate decision, to our knowledge, has ever rеjected a waiver of sovereign immunity that was as clear as this one. The closest to doing so that we have found is
American Indian Agricultural Credit Consortium, Inc. v. Standing Rock Sioux Tribe,
We acknowledge that the line between explicit and implicit waivers is unclear. This is shown by a recent pair of cases that reached оpposite results on identical facts.
Rosebud Sioux Tribe v. Val-U Construction Co. of South Dakota, Inc.,
*661
We need not consider whether by bringing this suit, rather than merely defending TMI’s state court suit to confirm the arbitration award, the tribe waived its sovereign immunity. See generally
Rupp v. Omaha Indian Tribe,
Reversed.