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Tonkawa-Motion-To-Dismiss Case 5:08-cv-00663-M Document 4 Filed 08/01/2008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA WEATHER BARRIER CONSTRUCTION LTD., ) and WAYNE (FUZZY) WARREN, ) ) Plaintiffs, ) ) Case No.: CIV-08-663-M vs. ) ) THE TONKAWA TRIBE OF OKLAHOMA, ) A federally-recognized Indian Tribe, ) ) Defendant. ) DEFENDANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION AND OPENING BRIEF IN SUPPORT COMES NOW Defendant Tonkawa Tribe of Oklahoma (the “Tribe”), a Federally- recognized Indian Tribe, appears specially and, pursuant to the Federal Rules of Civil Procedure Rule 12(b)(1), respectfully submits this motion to dismiss this case against the Tribe for lack of subject matter jurisdiction. In support, the Tribe advises the Court as follows. ARGUMENT AND AUTHORITIES I. THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION TO ADJUDICATE THIS ACTION SINCE THERE IS NO BASIS FOR FEDERAL JURISDICTION UPON WHICH THESE CLAIMS MAY BE BROUGHT AGAINST THE TRIBE. Plaintiff1 invokes the jurisdiction of this Court under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq. (the “IGRA”) and seeks injunctive relief against the Tribe due 1 The caption of the complaint lists two separate plaintiffs, but the body of the complaint refers to a single plaintiff. The defenses raised in Defendant’s motion likewise refers to a single plaintiff but is intended to apply to the entire suit, whether it is brought on behalf of one or both plaintiffs listed in the caption. Case 5:08-cv-00663-M Document 4 Filed 08/01/2008 Page 2 of 7 to a breach of an alleged construction contract between Plaintiff and the Tribe. The Tribe asserts that there is no federal question jurisdiction under 28 U.S.C. § 1331 since a dispute regarding a construction contract for a casino does not “arise” under IGRA or any other federal statute. Moreover, even if Plaintiff were to base its claim on diversity jurisdiction, federal law clearly holds that an Indian tribe is not considered a citizen of any state for purposes of diversity jurisdiction under 28 U.S.C. § 1332. There is thus no basis for federal jurisdiction in this matter. A. There Is No Federal Question Jurisdiction Under 28 U.S.C. § 1331. A suit seeking the Court’s federal question jurisdiction under 28 U.S.C. § 1331 is appropriate “when the cause of action is created by federal law or turns on a substantial question of federal law.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). In this case, Plaintiff’s cause of action is neither created by the IGRA or is based on a substantial question under the IGRA. The IGRA is a federal law establishing a regulatory framework for conducting gaming activities on Indian lands with a goal “to promote tribal economic development, tribal self-sufficiency, and strong tribal government.” 25 U.S.C. § 2701(4). It establishes the National Indian Gaming Commission (the “NIGC”) as a federal regulatory agency within the United States Department of the Interior, with oversight authority to make sure Indian gaming activities are not inconsistent with the IGRA. Id. at § 2704. The NIGC does not, however, replace the role of Indian tribes to be the primary regulators for gaming activity on their Indian lands. The IGRA does not create a federal cause of action for breach of contract actions against Indian tribes. The only reference to contracts in the IGRA pertains to management 2 Case 5:08-cv-00663-M Document 4 Filed 08/01/2008 Page 3 of 7 contracts. A management contract is a contract that a tribe may enter into for the operation and management of certain gaming activity that a tribe may conduct, in compliance with other provisions of the IGRA. Id. at § 2711. In order to be valid, a management contract has to be approved by the Chairman of the NIGC. Id. In the instant case, Plaintiff refers to an alleged contract entered into between it and the Tribe whereby Plaintiff would serve as the primary contractor for the construction of a casino located at the intersection of Interstate 35 and U.S. Highway 60 in Kay County, Oklahoma.2 Complaint, para. 4. The alleged contract between Plaintiff and the Tribe pertains to the construction of a casino and is not a management contract under the IGRA. Moreover, no other provision in the IGRA provides a federal cause of action for a breach of contract action between a tribe and the contractor. Also, nothing in Plaintiff’s complaint asserts a substantial question under the IGRA. Plaintiff apparently relies on the nature of its alleged contract with the Tribe (casino construction) as its basis for asserting jurisdiction under IGRA, a statute about Indian gaming. However, the IGRA does not serve as a basis for federal jurisdiction for ancillary issues involving Indian gaming. See, e.g., Iowa Management & Consultants, Inc. v. Northern Sac & Fox Tribe, 207 F.3d 488, 489 (8th Cir. 2000) (holding that federal court does not have 2 Moreover, it is not clear from Plaintiff’s complaint if this property even qualifies as “Indian land” under the IGRA. The IGRA is applicable only as to gaming activity that occurs on “Indian lands,” which is defined as: (A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by an Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power. 25 U.S.C. § 2703(4). To the extent Plaintiff’s reliance on the IGRA as a basis for federal jurisdiction involves activity on this particular property, the complaint fails to even establish that IGRA even is applicable here. 3 Case 5:08-cv-00663-M Document 4 Filed 08/01/2008 Page 4 of 7 jurisdiction regarding routine gaming related contract involving a tribe) (citing T T E A v. Ysleta Del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999); Calumet Gaming Group-Kansas, Inc. v. Kickapoo Tribe of Kansas, et al., 987 F. Supp. 1321, 1325 (D. Kan. 1997) (gaming related consulting agreement that is not a management contract is not subject to IGRA and does not raise a federal question). Plaintiff fails to state a basis for federal question jurisdiction under the IGRA, and the complaint makes no reference to any other federal law upon which jurisdiction may be brought. Thus, there exists no federal question jurisdiction under 28 U.S.C. § 1331 upon which Plaintiff may bring this suit against the Tribe. B. There Is No Diversity Jurisdiction Under 28 U.S.C. § 1332. Even if Plaintiff invoked diversity jurisdiction under 28 U.S.C. § 1332, this suit does not fall under that statute since an Indian tribe is not considered to be a citizen of any state for purposes of diversity jurisdiction. Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir. 1993). Moreover, Plaintiff brings the suit seeking injunctive relief and so there is no requisite amount in controversy to meet the requirements for diversity jurisdiction. Defendant Tonkawa Tribe is a federally-recognized3 Indian tribe with sovereign powers of self-government. The Tribe is the only named defendant in this suit, and so this suit falls squarely under the rule in Gaines. The Court cannot exercise diversity jurisdiction in this action. II. THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION TO ADJUDICATE THIS ACTION SINCE THERE IS NO VALID AND EXRESS WAIVER OF TRIBAL SOVEREIGN IMMUNITY. 3 See Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553 (2008). 4 Case 5:08-cv-00663-M Document 4 Filed 08/01/2008 Page 5 of 7 Assuming, arguendo, that a basis for federal jurisdiction were to exist, there is no valid and express waiver of the Tribe’s sovereign immunity from suit for this action to proceed. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Absent an express waiver by the Tribe or clear congressional abrogation, the Tribe remains shielded from suit under sovereign immunity, and this immunity extends to “suits on contracts, whether those contracts involve governmental or commercial activities, and whether they were made on or off a reservation.” Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 760 (1998). Although Plaintiff claims it entered into a lawful contract with the Tribe, the document attached as Exhibit A to the complaint is only a proposal for the construction of a casino project. See Exhibit A of Complaint. The document is titled “Proposal,” and on page three of the proposal is the term: “This proposal is valid for 10 days.” The date of the proposal is March 24, 2008, and the complaint alleges that cancellation of the “contract” occurred on or about May 2008, more than ten days after March 24, 2008. Admittedly, there is reference to the Tribe agreeing to litigation in federal court in paragraph fifteen, but there is no reference to the specific federal court a claim should be brought nor does the Tribe clearly agree to be sued for injunctive relief. Read as a whole, the proposal is poorly drafted and has confusing (e.g., the proposal is only valid for 10 days) and conflicting terms. The entire document including without limitation the alleged waiver of sovereign immunity is not clear and unambiguous.
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