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IN THE DISTRICT COURT FOR THE DISTRICT OF

ANTHONY JOHNSON, ) Plaintiff, ) ) vs. ) Case No. 2:14-cv-02117-CM-TJJ ) WYANDOTTE TRIBE OF ) a/k/a WYANDOTTE NATION ) Removed from the District Court d/b/a 7TH STREET CASINO, ) of Wyandotte County, State of Kansas, Defendants. ) No. 14-CV-155

DEFENDANT’S MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

Defendant Wyandotte Nation1 submits this Memorandum in Support of its Motion to

Dismiss, which was submitted pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Defendant respectfully requests that this Court dismiss the claim for relief alleged by

Plaintiff Anthony Johnson for the reasons specifically set forth below.

Nature of the Matter

The present action was initiated in the district court for Wyandotte County, State of

Kansas against Defendant Wyandotte Nation. Plaintiff Anthony Johnson alleged she was injured as a result of a fall down a flight of stairs while a guest at the 7th Street Casino. The Casino is located on Indian lands within the exterior boundaries of Kansas City, Wyandotte County,

Kansas.

Defendant timely filed a Notice of Removal to this Court. Defendant now files this

Motion to Dismiss because Defendant Wyandotte Nation, a federally recognized Indian tribe, is

1 In her Petition, Plaintiff identifies the Defendant as “Wyandotte Tribe of Oklahoma a/k/a Wyandotte Nation d/b/a 7th Street Casino.” The Wyandotte Nation was once referred to as the Wyandotte Tribe of Oklahoma but amended its Constitution to change its name to Wyandotte Nation in 1999. The United States recognizes the Nation as the “Wyandotte Nation”. See List of Indian Tribes recognized by the Department of Interior, Bureau of Indian Affairs [78 F.R. 26384, 26388 (May 6, 2013)] Case 2:14-cv-02117-DDC-TJJ Document 7 Filed 03/20/14 Page 2 of 11

immune from unconsented suit. The Nation has not waived its sovereign immunity from suit and

Plaintiff has failed to allege, and cannot allege, that the Nation has waived its sovereign immunity or that Congress has abrogated the Nation’s sovereign immunity for this tort claim.

A complaint may be dismissed for lack of subject matter jurisdiction. FED. R. CIV. P.

12(b)(1). Such a dismissal is not an adjudication on the merits of the action, but rather a determination that the court has no authority to adjudicate the matter. See Castaneda v. INS, 23

F.3d 1576, 1580 (10th Cir. 1994) (the federal courts are courts of limited jurisdiction and may only exercise jurisdiction where they are authorized to do so). A Rule 12(b)(1) motion is

"determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). Plaintiff has the burden of establishing the court's subject matter jurisdiction. See e.g., Southway Central

Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003) (“The burden of establishing jurisdiction rests squarely on the shoulders of the party claiming it.”).

A complaint may also be dismissed for failure to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss pursuant to Rule 12(b)(6) the

“complaint must contain sufficient factual matter to state a claim which is plausible – and not merely conceivable – on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Finally, in reviewing a 12(b)(6) motion to dismiss, the court “accepts all well-pled factual allegations as true and views these allegations in the light most favorable to the nonmoving party. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S. 1148

(2010).

“[W]hen a defendant seeks dismissal under Rule 12(b)(1) and 12(b)(6) in the alternative, the court must decide first the 12(b)(1) motion, for the 12(b)(6) challenge would be moot if the

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court lacked subject matter jurisdiction.” Mounkes v. Conklin, 922 F.Supp. 1501, 1506 (D.Kan.

1996) (citing Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)).

Defendant asserts the Court does not have subject matter jurisdiction because the Nation has not waived its sovereign immunity from suit and Congress has not abrogated that immunity. But, in the alternative, Defendant asserts that Plaintiff failed to exhaust any remedies available through the Nation.

Statement of the Facts

1. Plaintiff brings suit against Defendant for injuries allegedly incurred as a result of a fall at the 7th Street Casino. Doc. 1-1, p. 4, ¶¶ 16-19.

2. Plaintiff alleges the Court has subject matter jurisdiction because (1) “this cause of action as the tort occurred in Wyandotte County, Kansas” (Doc. 1-1, p.2, ¶ 3) and (2) “The

Wyandotte Tribe of Oklahoma operates a business in Wyandotte County, Kansas” (Doc. 1-1, p.2,

¶ 4).

3. However, Plaintiff concedes the Casino is located on land held in trust by the

United States for the benefit of the Nation. Id. at p. 3, ¶ 8.

4. Plaintiff is a federally-recognized Indian tribe. [78 F.R. 26384, 26388 (May 6,

2013)]

5. Under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., Class II

Gaming activities are conducted at the Casino. Id. at p. 3, ¶ 9.

6. The Nation has not entered into a Class III Gaming compact with the State of

Kansas. Id. at p. 3, ¶ 15.

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Question Presented

1. Whether Defendant Wyandotte Nation has waived its sovereign immunity from a tort claim action brought by Plaintiff, thereby conferring subject matter jurisdiction upon this

Court?

2. Whether Congress has abrogated Defendant Wyandotte Nation’s sovereign immunity from a tort claim action such as the one brought by Plaintiff, thereby conferring subject matter jurisdiction upon this Court?

3. Whether this Court should exercise jurisdiction over tort claim action brought by

Plaintiff when Plaintiff has failed to exhaust all Tribal remedies?

Arguments and Authorities

A. The Nation’s sovereign immunity is not waived as to Plaintiff’s tort claim.

“As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Miner Elec., Inc. v. (Creek)

Nation, 505 F.3d 1007, 1009 (10th Cir. 2007). All issues related to immunity, including sovereign immunity, are threshold questions of law. See Saucier v. Katz, 533 U.kS. 194, 201

(2001), receded in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Tribal sovereign immunity deprives a court of subject matter jurisdiction to decide any of the other matters between the parties. See Miner Elec., 505 F.3d at 1009. This Court has long recognized that sovereign immunity is a matter of subject matter jurisdiction.

Defendants also argue that the Tribe retains sovereign immunity. Arguments of sovereign immunity and subject matter jurisdiction are inextricably intertwined and sovereign immunity is therefore a matter of subject matter jurisdiction. Hartman v. Golden Eagle Casino, Inc., 243 F.Supp.2d 1200 (D.Kan.2003) (citing E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302 (10th Cir.2001)). "Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. As an aspect of this sovereign immunity, suits against tribes are barred in the absence of an unequivocally expressed waiver by the tribe or

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abrogation by Congress." E.F.W., 264 F.3d at 1304 (quoting Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997)).

Burdett v. Harrah's Kansas Casino Corp., 260 F.Supp.2d 1109 (D. Kan., 2003).

The doctrine of tribal sovereign immunity from suit shields the Nation and its business enterprises from civil actions. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)

(“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.”). Absent an express tribal waiver or congressional abrogation, an Indian tribe is shielded from suit by sovereign immunity and that immunity extends to governmental and commercial activities whether arising in or outside Indian country.

See Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998); Native American

Distrib. V. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008) (finding that tribal sovereign immunity shields a tribal business enterprise). Tribal casinos enjoy sovereign immunity unless the immunity is otherwise waived. See Breakthrough Mgmt. Gp., Inc., v.

Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1195-96 (10th Cir. 2010).

In her Petition, Plaintiff asserts the Court has subject matter jurisdiction because (1) “this cause of action as the tort occurred in Wyandotte County, Kansas” (Doc. 1-1, p.2, ¶ 3) and (2)

“The Wyandotte Tribe of Oklahoma operates a business in Wyandotte County, Kansas” (Doc. 1-

1, p.2, ¶ 4). Nowhere does Plaintiff plead that the Nation has waived its sovereign immunity from suit. Plaintiff does appear to make some cryptic argument that the Nation’s sovereign immunity has been waived through the provisions of IGRA. Both allegations of subject matter jurisdiction fail.

1. The Wyandotte Nation has not waived its sovereign immunity from suit.

For a tribe to have been found that it waived its sovereign immunity, the “tribe’s waiver must be ‘clear.’” C&L Enters., Inc. v. Citizen Band Indian Tribe of Okla., 532 U.S.

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411, 418 (2001) (citations omitted). In other words, the assertion of an immunity waiver “cannot be implied but must be unequivocally expressed.” Native American Distrib., 546 F.ed at 1293.

Plaintiff makes only one assertion of “fact” to support the Nation has waived its sovereign immunity. In her Petition (p. 3, ¶ 13) Plaintiff states that “[a]ccording to its federal charter, The Wyandotte Tribe of Oklahoma may ‘sue or be sued’”.

The charter to which Plaintiff refers is that of the Wyandotte Tribe of Oklahoma, a federal charter corporation. The Wyandotte Nation and the Wyandotte Tribe of Oklahoma are separate entities. See e.g. Okla. ex rel. Okla. Tax Comm' n v. , 839

P.2d 180, 183-184 (Okla. 1992) (“Congress authorized the tribes to organize two separate entities: a political governing body to exercise preexisting powers of self-government pursuant to section 16 of the Act, and a new tribal corporation to engage in business transactions pursuant to section 17.”). See also Gaines v. Ski , 8 F.3d 726, 729 (10th Cir. 1993) (tribe's

"constitutional and corporate entities [are] separate and distinct"); Ramey Constr. Co., Inc. v.

Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 320 (10th Cir. 1982) (noting the

"distinctness" of a tribe from a tribal corporation); Native Am. Distrib. v. Seneca-Cayuga

Tobacco Co., 491 F. Supp. 2d 1056, 1059 (N.D. Ok. 2007) ("The constitutional entity created pursuant to § 476 and the corporate entity created pursuant to § 477 are considered separate and distinct entities.").

Plaintiff has brought her action against one defendant, the Wyandotte Nation.

Further, even if the federal charter corporation was a named defendant, the presence of a

“sue and be sued” provision in a federal corporation charter does not waive the sovereign immunity of the Nation. See Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673

F.2d 315, 320 (10th Cir.1982) (holding that presence of "sue and be sued" provision in corporate

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charter does not affect immunity of tribe as a constitutional entity); Rosebud Sioux Tribe v. Val-

U Constr. Co., 50 F.3d 560, 563 (8th Cir.1995) (holding "sue and be sued" clause in tribe's corporate charter does not operate as a general waiver of the tribe's immunity from suit); see also

Seneca-Cayuga Tribe v. Oklahoma, 874 F.2d 709, 715 n. 9 (10th Cir.1989) (explaining that the corporate charters authorized by the Indian Reorganization Act "usually include a 'sue and be sued' clause to enable the tribes to engage in commercial activity as corporations without losing their sovereign immunity as tribes").

The Nation’s Gaming Ordinance (Section 4(b)) provides the “Nation shall be authorized to conduct all forms of Class II Gaming within Tribal Indian Lands.” The Wyandotte Tribe of

Oklahoma, federal chartered corporation, does not conduct the gaming operations at the 7th Street

Casino. The Wyandotte Nation has not waived its sovereign immunity to unconsented suits alleging tort claims taking place on the Shriner’s Tract.2 Absent an express waiver of sovereign immunity, this Court must dismiss Plaintiff’s cause of action for want of subject matter jurisdiction.

2. The Indian Gaming Regulatory Act does not waive the sovereign immunity of the Nation.

Under the IGRA, Congress only authorized the states to receive a very limited civil jurisdiction over Indian country. Section 2710(d)(3)(C)(ii) provides that a tribe and state may enter into compacts allocating “criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement” of gaming laws and regulations. Jurisdiction to adjudicate torts is far removed from the type of jurisdiction Congress contemplated when it allowed tribes and states to allocate jurisdiction necessary for the enforcement of laws directly related to, and

2 While not relevant for purposes of this motion to dismiss for lack of subject matter jurisdiction, this does not mean a Casino patron does not have recourse for injuries allegedly occurring on the Casino property. Any person injured is provided with the necessary information for filing a tort claim. Plaintiff was provided with the information. 7

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necessary for, the licensing and regulation of gaming activity. No federal court has found that this provision authorizes state courts to acquire civil jurisdiction over tort actions or found that

IGRA constitutes a waiver of tribal sovereign immunity.

Plaintiff alleges, correctly, in her Petition that the Nation does not have a compact with the state of Kansas and thus the Nation “can conduct only Class II gaming activities under”

IGRA. Doc. 1-1, p.3, ¶ 9. Plaintiff further describes the compact the Nation has entered into for its gaming facilities in Oklahoma. Doc. 1-1, p.3, ¶ 10.

Absent a compact, there can be no assertion of waiver of sovereign immunity under

IGRA. In the Oklahoma compact, the Nation “consent[ed] to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim.” See 3A O.S. § 281, Part 6(C).3

(emphasis added) The Tenth Circuit has found that even that compact language did not waive the Nation’s immunity. See Santana v. Muscogee (Creek Nation, ex rel. River Spirit Casino, 508

Fed.Appx. 821, 822 (C.A. 10, Okla. 2013). (“Nothing in these or any other provision of the compact unequivocally waives the Creek Nation’s immunity to individual civil tort suits.”)

IGRA does not waive the sovereign immunity of the Nation. The Nation has not entered into a compact with the state of Kansas authorizing tort claims to be made against the Nation or its Casino. Therefore, this Court must dismiss Plaintiff’s claim for want of subject matter jurisdiction.

B. Plaintiff’s action must be dismissed because Plaintiff has failed to exhaust Tribal remedies.

“The tribal exhaustion rule provides that ‘as a matter of comity, a federal court should not exercise jurisdiction over cases arising under its federal question or diversity jurisdiction, if those cases are also subject to tribal jurisdiction, until the parties have exhausted their tribal

3 All Indian tribes in Oklahoma executed the Model Tribal Gaming Compact found at 3A O.S. § 281. Thus, every compact in Oklahoma contains the same language. 8

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remedies.’” Burdett v. Harrah’s Kansas Casino Corp, 260 F.Supp.2d 1109, 1114-1115 (D. Kan.

2003) citing Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th Cir. 1993) (citations omitted).

Plaintiff states in her petition that the Nation “does not provide a forum for redress within the state of Kansas for casino patrons injured at the 7th Street Casino” [Doc. 1-1, p.3, ¶ 11] and that the Nation “does not have a tribal court in Kansas City, Kansas.” Id. at ¶ 14. The first statement is simply not true and the second is irrelevant. The Casino does have a tort claim process but Plaintiff consciously determined not to participate in that forum. Further, the Nation does have a court with jurisdiction to consider Plaintiff’s claim.

“When, as here, the dispute arises on the tribal reservation, these policies usually dictate that plaintiff must exhaust tribal remedies before resorting to federal court. Texaco, Inc. 5 F.3d at

1378 (citing Smith v. Moffett, 947 F.2d 442, 445 (10th Cir.1991) and Crawford v. Genuine Parts

Co., 947 F.2d 1405, 1408 (9th Cir.1991) ("When the dispute is a `reservation affair,' ... there is not discretion not to defer.")).” Burdett, 260 F.Supp.2d at p. 1115.

The Tenth Circuit has taken a "strict view of the tribal exhaustion rule," Kerr-McGee

Corp. v. Farley, 115 F.3d 1498, 1507, and has required such exhaustion in numerous cases. See, e.g., United States v. Tsosie, 92 F.3d 1037, 1043 (10th Cir.1996); Pittsburg & Midway Coal

Mining Co. v. Watchman, 52 F.3d 1531, 1541 (10th Cir.1995); Bank of Okla. v. Muscogee

(Creek) Nation, 972 F.2d 1166, 1171 (10th Cir.1992); Smith, 947 F.2d at 444; Tillett v. Lujan,

931 F.2d 636, 641 (10th Cir.1991); Brown v. Washoe Housing Authority, 835 F.2d 1327, 1328

(10th Cir.1988); Superior Oil Co. v. United States, 798 F.2d 1324, 1331 (10th Cir.1986).

The Tenth Circuit has also stated that: "[T]he federal courts should not consider a suit arising from activities on tribal land until the plaintiff has exhausted his or her tribal court

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remedies." Brown, 835 F.2d at 1327. The Tenth Circuit has also reiterated that a party's status as a non-Indian is immaterial for this purpose. Smith, 947 F.2d at 444.

Plaintiff has alleged she has not availed herself of any remedies in a tribal forum. The

Court should apply the doctrine of exhaustion of tribal remedies and dismiss Plaintiff’s cause of action.

Conclusion

Defendant has not waived its sovereign immunity from suit and Congress has not abrogated the Nation’s sovereign immunity to the tort claim brought by Plaintiff. For this reason, the Court should dismiss Plaintiff’s cause of action for lack of subject matter jurisdiction.

In the alternative, the Court should dismiss Plaintiff’s cause of action for failure to exhaust her tribal remedies.

Respectfully submitted this 20th day of March, 2014.

__/s/ Lloyd W. Raber______Daniel N. Allmayer, KS Bar No. 13979 Lloyd W. Raber, KS Bar No. 24701 ALLMAYER & ASSOCIATES, P.C. 51 Corporate Woods 9393 W. 110th St., Ste. 5006 Overland Park, KS 66210 (913) 768-9557 (816) 221-6273 – Fax [email protected] [email protected] [email protected]

David McCullough, OK Bar No. 10898 Doerner, Saunders, Daniel & Anderson 1800 N. Interstate Dr., Suite 211 Norman, OK 73072 (405) 319-3501 (405) 319-3531 – Fax [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2014, I caused a copy of the foregoing to be served through the Court’s CM/ECF System to all parties.

Reginald K. Davis 750 Ann, Suite B Kansas City, KS 66101 [email protected] ATTORNEY FOR PLAINTIFF _/s/ Lloyd W. Raber ____ Lloyd W. Raber

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