## Facts

- The Quapaw Tribe of Oklahoma and individual members sued mining-company successors for environmental contamination on tribal and allotted lands within the Tar Creek Superfund Site in Oklahoma.
- Historic lead and zinc mining on Quapaw allotments occurred under mineral leases negotiated by the Department of the Interior as trustee.
- Mining produced large quantities of waste rock and mill tailings known as “chat,” which the leases treated as property of the Indian lessors once left on the surface.
- The tribe and tribal members sold and distributed chat for use as aggregate and surfacing material in the region.
- After mining ceased, the area was found contaminated with heavy metals, leading to CERCLA Superfund designation.
- Defendants (including Blue Tee Corporation and Gold Fields Mining Corp.) asserted counterclaims seeking contribution and indemnity, alleging the tribe’s ownership, management, sale, and distribution of chat contributed to contamination.
- The tribe moved to dismiss the counterclaims based on tribal sovereign immunity; the district court denied the motion, treating the counterclaims as recoupment and finding an implied waiver by filing suit.
- The district court certified an interlocutory appeal, and the tribe appealed.

## Issues

1. Whether a tribe waives sovereign immunity by filing suit such that defendants may pursue counterclaims for contribution and indemnity, or only defensive recoupment.
2. Whether CERCLA contains a clear congressional abrogation of tribal sovereign immunity permitting contribution/indemnity counterclaims against a tribe.
3. How to distinguish permissible recoupment (defensive setoff) from barred affirmative counterclaims seeking independent relief.

## Decision

- The Tenth Circuit affirmed in part and reversed in part the order allowing counterclaims to proceed.
- The court held that tribal sovereign immunity bars affirmative counterclaims seeking relief different in kind or exceeding the amount the tribe seeks, absent clear waiver or congressional abrogation.
- By initiating suit, the tribe waived immunity only for defensive recoupment counterclaims that arise from the same transaction or occurrence and serve solely to reduce or defeat the tribe’s recovery.
- The court rejected the argument that CERCLA’s contribution provisions abrogate tribal sovereign immunity; statutory references that include tribes were insufficient without an unequivocal expression authorizing suit against tribes.
- Counterclaims for contribution, indemnity, separate damages, or declaratory relief against the tribe were barred and had to be dismissed to the extent they exceeded true recoupment.

## Legal Principles

- Indian tribes are immune from suit unless Congress clearly authorizes the suit or the tribe clearly waives immunity; waivers are strictly construed in the tribe’s favor.
- A sovereign plaintiff’s decision to sue waives immunity only as to recoupment: claims (1) arising from the same transaction or occurrence, (2) asserted defensively, and (3) not seeking relief exceeding or different in kind from the plaintiff’s claim.
- Allegations that a tribe participated in or benefited from the underlying conduct do not, by themselves, constitute a waiver permitting affirmative relief against the tribe.
- CERCLA does not abrogate tribal sovereign immunity for contribution or indemnity claims absent unmistakably clear statutory language authorizing such suits.
- Defendants may use a tribe’s alleged contribution to contamination as a defense to reduce liability or damages, but may not obtain an affirmative judgment against the tribe beyond recoupment limits.

## Conclusion

The court limited defendants’ counterclaims against the Quapaw Tribe to defensive recoupment tied to the same transaction and capped by the tribe’s requested relief, while barring broader CERCLA and related counterclaims for affirmative contribution or indemnity due to tribal sovereign immunity and the absence of clear statutory abrogation.


Berrey v. Asarco Inc., 439 F.3d 636 (10th Cir. 2006)