[PUBLISH]

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12669 ____________________

AQUATE II LLC, Plaintiff-Appellant, versus JESSICA TEDRICK MYERS, KITUWAH SERVICES LLC,

Defendants-Appellees,

KITUWAH GLOBAL GOVERNMENT GROUP LLC

Defendant.

____________________ USCA11 Case: 22-12669 Document: 58-1 Date Filed: 05/01/2024 Page: 2 of 18

2 Opinion of the Court 22-12669

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 5:22-cv-00360-AKK ____________________

Before GRANT, ABUDU, and HULL, Circuit Judges. GRANT, Circuit Judge: This case first looks like a run-of-the-mill business dispute— but closer inspection reveals thorny questions of tribal sovereignty and contract interpretation. During the competitive bidding process for a government contract, one tribally owned business and its employee allegedly stole trade secrets from a competitor, another tribally owned business. The aggrieved business now seeks to vindicate its interests in federal court, while the alleged aggressor attempts to shield itself with tribal sovereign immunity. Meanwhile, the employee who allegedly stole the secrets says her employment contract mandates that the claims against her can be brought only in a designated tribal court. And that contention raises yet another area of dispute—whether the tribal court even exists. We conclude that, because it waived sovereign immunity for claims related to the federal contracting program, the defendant tribe can be sued here. As for the former employee, the district court failed to consider whether the clause naming the allegedly nonexistent tribal court as the appropriate forum was valid and USCA11 Case: 22-12669 Document: 58-1 Date Filed: 05/01/2024 Page: 3 of 18

22-12669 Opinion of the Court 3

enforceable. For both reasons, we reverse the district court’s order dismissing the case and remand for further consideration. I. The Small Business Administration’s 8(a) Business Development Program is designed to assist certain “disadvantaged business concerns” compete in the American economy. 13 C.F.R. § 124.1; see generally 15 U.S.C. § 637(a). To that end, the federal government sets aside select federal contracts for businesses owned and controlled by individuals and groups the Small Business Act declares socially and economically disadvantaged. 15 U.S.C. § 637(a)(1), (4)–(6). Among those eligible are small businesses owned by certain Indian tribes. Id. § 637(a)(4)(A)(i)(II), (ii)(II). Both businesses here qualify. AQuate II, LLC, is organized under the authority of the Alabama-Quassarte Tribal Town with its principal place of business in Huntsville, Alabama. Kituwah Services, LLC, is organized under the Eastern Band of Cherokee Indians with its principal place of business in Cherokee, North Carolina. Both tribal entities compete for and perform federal contracts under the 8(a) program. In 2012, AQ