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7 Wyandotte Motion to Dismiss Case 2:14-cv-02117-DDC-TJJ Document 7 Filed 03/20/14 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ANTHONY JOHNSON, ) Plaintiff, ) ) vs. ) Case No. 2:14-cv-02117-CM-TJJ ) WYANDOTTE TRIBE OF OKLAHOMA ) 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 2 Case 2:14-cv-02117-DDC-TJJ Document 7 Filed 03/20/14 Page 3 of 11 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. 3 Case 2:14-cv-02117-DDC-TJJ Document 7 Filed 03/20/14 Page 4 of 11 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. Muscogee (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 4 Case 2:14-cv-02117-DDC-TJJ Document 7 Filed 03/20/14 Page 5 of 11 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 Kiowa 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.
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