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MBDA Motion to Dismiss in Matter Re Application No Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA858717 Filing date: 11/15/2017 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91235367 Party Defendant Miami Tribe of Oklahoma Business Development Authority, a Tribal Enterprise of the Miami Tribe of Oklahomament Authority, a Tribal Enterprise of the Miami Tribe of Oklahoma Correspondence MIAMI TRIBE OF OKLAHOMA BUSINESS DEVELOPMENT Address AUTHORITY A TRIBAL ENTERPRISE OF THE MIAMI TRIBE OF OKLAHOMA , 66201 E 290 RD GROVE, OK 74344 UNITED STATES Email: [email protected] Submission Motion to Dismiss - Rule 12(b) Filer's Name Carl J. Artman Filer's email [email protected] Signature /Carl J. Artman/ Date 11/15/2017 Attachments Applicant MBDA Motion to Dismiss in matter re Application No. 87 208750.pdf(1828207 bytes ) UNITED STATES PATENT AND TRADEMARK OFFICE TRADEMARK TRIAL AND APPEAL BOARD In the Matter of Trademark Application Serial No. 87/208,750 Published January 3, 2017 CAESARS INTERACTIVE ) ENTERTAINMENT, LLC, ) Opposer, ) ) V. ) OPPOSITION NO. 91/235,367 ) MIAMI TRIBE OF OKLAHOMA ) BUSINESS DEVELOPMENT ) AUTHORITY, ) A TRIBAL ENTERPRISE OF ) THE MIAMI TRIBE OF ) OKLAHOMA, ) Applicant. ) ) MOTION TO DISMISS FOR LACK OF JURISDICTION BASED ON TRIBAL SOVEREIGN IMMUNITY I. SUMMARY OF THE MOTION The Miami Tribe of Oklahoma (“Tribe”) is a federally recognized Indian Tribe. The Tribe established and created a corporate and politic body known as the Miami Tribe of Oklahoma Business Development Authority (“MBDA”) as a subordinate economic enterprise and political subdivision of the Miami Tribe, having the purposes, powers, and duties provided by tribal law and delegated to it through tribal authority. The Tribe authorized the Miami Tribal Business Development Act (“Act”) and creation of the MBDA through passage of Tribal Resolution No. 99-28 on April 23, 1999. The Tribe created the MBDA for the “essential governmental function to provide for the development of tribal revenue generating activities for public uses and purposes.” Resolution No. 99-28 (Exhibit A). MBDA is the applicant for the mark “ROCKET XTREME 1 MAINEVENT” for “gambling services in the nature of providing a feature bonus game played on gaming machines, namely bingo-related games, namely slot machines. MBDA was assigned U.S. Trademark Application No. 87/208,750. The mark will be used on Class II bingo-related games in Indian-gaming facilities. Class II gaming is unique to Indian tribes and regulated solely by tribes. 25 U.S.C. 2703(7); 25 U.S.C. 2710(a)(2). Caesars Interactive Entertainment, LLC (“Caesars”) has filed a notice with the Board against the MBDA opposing the MBDA’s above referenced application. The Tribe is a sovereign government with immunity from suit and the MBDA is a political subdivision of the Tribe sharing the Tribe’s sovereign immunity from suit. Neither the Tribe nor the MBDA can be sued unless Congress unequivocally abrogates its immunity or the Tribe expressly waives it. Neither of these exceptions apply here. The MBDA is the applicant for the mark. Accordingly, the MBDA makes a special appearance before this Board to challenge Caesars’ authority to bring suit against the MBDA within the jurisdiction of this Board. The MBDA does not waive its immunity through this appearance before this Board for this purpose. The MBDA does not otherwise submit to the jurisdiction of this Board. Caesars cannot sue the MBDA within the jurisdiction and procedures of this Board. As a result, this proceeding must be dismissed. II. THE MIAMI TRIBE OF OKLAHOMA The Tribe and its members were known as “the downstream people,” or “myaamia” in the tribal language. “Miami” is a derivation of the traditional name. The United States government recognizes the Tribe as a Sovereign Nation, the Miami Tribe of Oklahoma. It originated from the Great Lakes region. Its homelands lie within the boundaries of the states of Indiana, Ohio, Illinois, lower Michigan and lower Wisconsin. The Tribe was one of the first Nations exposed to early European contact, first through the Jesuit mission in the late 1600’s, followed soon after by the French and British invasion and struggle for control of the Great Lakes region. The Tribe numbered in the tens of thousands in the pre-colonial days. 2 The early years of the United States of America is a history for the Miami that includes accounts of the people known as the Myaamiaki struggling to retain their homeland and connection to the Great Lakes landscape. The treaty period was devastating, marked by the massive cession of lands required at the Greenville Treaty of 1795. President Andrew Jackson, thirty-five years later, signed the Indian Removal Act of 1830, an action that set in motion a chain of events that would alter the Myaamiaki forever. The Treaty of 1840 called for the removal of the Miami Tribe to regions beyond the Mississippi. After many attempts to avoid this devastating move, in October of 1846 the Tribe’s ancestors, numbering approximately 500 people, were herded at gunpoint and forced onto canal boats to begin the long journey down the Erie Canal system from eastern Indiana to the Ohio River. The remaining journey called for the use of steam boats to take the people west, down the Ohio River to the Mississippi, up to the Missouri and across to Westport Landing near Kansas City. From that landing the Tribe’s ancestors made their way south by horseback and wagon to a reserve held for them in the land of the Kaw people, near modern day La Cygne, Kansas. The Miami people remained in Kansas until the Treaty of 1867 called for their removal again, this time to the Indian Territory, known today as Oklahoma. Upon arrival in the Indian Territory the tribal citizens had dwindled to less than 100 adults. The Tribe adopted its first tribal constitution pursuant to the passage of the Oklahoma Indian Welfare Act of 1936. This first Tribal Constitution was adopted in 1939 and officially recognized the Tribe as the Miami Tribe of Oklahoma. Since that constitution the Tribe has been governed by an elected leadership consisting of a Chief, Second Chief, Secretary-Treasurer, and two Councilpersons; known collectively as the Tribal Business Committee. These leaders follow in the footsteps of those before them in the constant struggle to retain the Tribe’s sovereignty and demanding its right to self-determination through its status as a self- governing Nation. The Miami Tribe of Oklahoma is recognized by the Department of the Interior as an Indian tribe with a government-to-government relationship with the United States. 81 Fed. Reg. 5019, 5021 (January 29, 2016). Today the Tribe has over 4,400 citizens. Its economic development efforts are vital to the provision of basic needs of its citizens today, and to continue to support them tomorrow. The Tribe established and created the MBDA to promote economic development. The Tribe created it as a subordinate economic enterprise 3 and political subdivision of the Miami Tribe having the purposes, powers, and duties provided by tribal law and delegated to it through tribal authority. The Tribe passed the Act into law and the created the MBDA through passage of Tribal Resolution No. 99-28 on April 23, 1999. Through passage of the Act, the Tribe delegated to the MBDA generally accepted sovereign powers of a tribal governments, including the powers to tax and eminent domain. The Tribe, through its actions, imbued the MBDA with governmental powers with the goal of creating a political subdivision that would provide economic development while sharing certain aspects of the Tribal government, including its sovereign immunity. All revenues generated by the MBDA have gone to the Tribe’s general fund to pay for general services for tribal members. The Department of the Interior recognized the sovereign status of the Tribe and the MBDA as a political subdivision of the Tribe. Letter from Scott Keep, Assistant Solicitor, Department of the Interior to Internal Revenue Service (March 2, 2000) (Exhibit B). The Internal Revenue Service echoed this conclusion when it determined the MBDA has been delegated substantial governmental functions of the Tribe, thus the IRS treats it as a political subdivision of the Tribe. Letter from Alvin Kraft, Chief, Branch 1, Internal Revenue Service to Nelson Johnson, President, Miami Tribe of Oklahoma Business Development Authority, 5 (April 20, 2000) (Exhibit C). “Tribe is a federally recognized Indian tribe. Tribe created Authority [by] adopting Act. Act provides that Authority is to be a political subdivision of Tribe and specifically delegates to Authority the power and authority to exercise a portion of the Tribe’s inherent sovereign powers of eminent domain and the power to tax. The portion of each power delegated to Authority is not insubstantial.” Id. at 4. III. ARGUMENTS AND AUTHORITY The Tribe and MBDA Possess Immunity From Suit. As a federally recognized, sovereign Indian Tribe, the Tribe possesses sovereign immunity. The Federal Government and the U.S. Supreme Court have long recognized that Indian tribes are “distinct, independent political communities.” Worcester v. State of Ga., 31 U.S. 515, 519 (1832). As such, the Tribe “possess[es] the same common-law immunity from suit traditionally enjoyed by sovereign powers.” Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2030 (2014). The Supreme 4 Court has repeatedly reaffirmed the doctrine of Indian tribal sovereign immunity. Kiowa Tribe of Okla. v. Mfg. Techs. Inc., 523 U.S. 751, 754 (1998); Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 510 (1991) (“Potawatomi I”); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Puyallup Tribe, Inc.
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