Case 3:12-cv BEN-JMA Document 4 Filed 10/30/12 Page 1 of 23

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1 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 Art Bunce, SBN 0 Law Offices of Art Bunce 0 State Place, Suite C P.O. Box Escondido, CA 0 Tel.: 0--0 FAX: 0-- buncelaw@aol.com Kathryn Clenney, SBN Barona Band of Mission Indians 0 Barona Road Lakeside, CA 00 Tel.: - FAX: -- kclenney@barona-nsn.gov Attorneys for specially-appearing defendant Barona Band of Mission Indians, d.b.a. Barona Valley Ranch Resort and Casino UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 0 JAMES NASELLA, vs. Plaintiff, THE BARONA VALLEY RANCH RESORT AND CASINO, Defendant Case No. -cv-0-ben-jma MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF BARONA BAND OF MISSION INDIANS, D.B.A. BARONA VALLEY RANCH RESORT AND CASINO, TO DISMISS ACTION FOR LACK OF PERSONAL AND/OR SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED [Rule (b(,, and ] Hearing: Date: December 0, 0 Time: 0:0 a.m. Place: Courtroom of the Honorable Roger T. Benitez Courtroom No. Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

2 Case :-cv-00-ben-jma Document Filed 0/0/ Page of TABLE OF CONTENTS Table of Authorities Statement of Facts I. This motion to dismiss is proper under Rule, F.R.Civ.P. 0 II. The Barona Band is a federally-recognized Indian tribe. III. The Tribe possesses sovereign immunity from unconsented suit. IV. The doctrine of tribal sovereign immunity applies to the Barona Valley Ranch Resort & Casino. 0 V. Any claim of sovereign immunity must be resolved prior to and irrespective of the merits of Plaintiff s claims. 0 VI. Plaintiff alleges no federal statute that confers subject matter jurisdiction on this Court. A. U.S.C. does not apply in this case. B. U.S.C. does not apply in this case. VII. Plaintiff misconstrues the Tribe s gaming compact. Conclusion Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

3 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 TABLE OF AUTHORITIES Cases: Allen v. Gold Country Casino, F.d 0 ( th Cir., 00 0 Alvarado v. Table Mountain Rancheria, 0 F.d 00 ( th Cir., 00, Barona Group of Capitan Grande Band of Mission Indians v. Duffy, F.d ( th Cir., Burlington Northern Railroad Co. v. Blackfeet Tribe, F.d ( th Cir., Central Machinery Co. v. Arizona State Tax Commission, U.S. 0 (0 Chemehuevi Indian Tribe v. California State Board of Equalization, F.d 0 ( th Cir., ; Reversed on other grounds, U.S. ( Cook v. Avi Casino Enterprises, Inc., F.d ( th Cir., 00 0 E.F.W. v. St. Stephen s Indian High School, F.d (0 th Cir., 00 Frazier v. Turning Stone Casino, F.Supp. (N.D.N.Y., 00 0, Gila River Indian Community v. Henningston, Durham & Richarson, F.d 0 ( th Cir., 0 Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

4 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 Ingreasia v. Chicken Ranch Bingo and Casino, F.Supp.d (E.D.Cal., 00 In re Greene, 0 F.d 0 ( th Cir., Kiowa Tribe v. Manufacturing Technologies, U.S. (, K America Corp. v. Roland Oil & Gas Co., F.d 0 ( th Cir., 0 LaPier v. McCormick, F.d 0 ( th Cir., Lawrence v. Barona Valley Ranch Resort & Casino, Cal.App. th, Cal.Rptr.d (00 Lewis v. Norton, F.d ( th Cir., 00 McClendon v. U.S., F.d ( th Cir., Merrion v. Jicarilla Apache Tribe, U.S. 0 ( 0 Myers v. Seneca Niagara Casino, F.Supp. (N.D.N.Y., 00 Ninigret Development Corp. v. Narragansett Indian Wetoumuch Indian Housing Authority, F.Supp.d (D.R.I., 0 Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

5 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe, U.S. 0 ( Pan American Co. v. Sycuan Band of Mission Indians, F.d ( th Cir.,, Plains Commerce Bank v. Long Family Land & Cattle Co., U.S., S.Ct. 0 (00 0 Santa Clara Pueblo v. Martinez, U.S. ( Smith v. McCullough, 0 U.S. ( Sossaman v. Texas, U.S.. S.Ct. (0 Sycuan, Barona, and Viejas Bands of Mission Indians v. Roache, F.Supp. (S.D.Cal., ; aff d. F.d ( th Cir., Statutes: U.S.C., U.S.C. U.S.C. 0 Federal Register: October, 00, vol., no. 0, p. 00 Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

6 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 STATEMENT OF FACTS The Barona Band of Mission Indians is a federally-recognized Indian tribe (the Tribe, which occupies the Barona Indian Reservation north of Lakeside, California. It owns and operates a resort complex, including a casino, on the Barona Indian Reservation, known as the Barona Valley Ranch Resort & Casino. As required by its Compact with the State of California, the Tribe provides a procedure by which injured patrons may seek a remedy, as set forth in a Tort Claims Ordinance. That Ordinance provides that, if a claim is denied by the Tribe s insurer, the claimant may appeal to the Barona Tribal Court, as provided in the Compact, which is the only forum in which the Tribe waives its sovereign immunity. Ruth Nasella filed a claim, alleging that she was a casino patron who was injured at the casino on April, 00. The claim was denied by the Tribe s claims adjustor, Tribal First, on or about March, 00. On or about March 0, 00 Ms. Nasella filed an appeal with the Barona Tribal Court. After filing the appeal, Ms. Nasella died. Her son, James Nasella, Jr., represented the estate of Ruth Nasella and proceeded with the appeal. Trial was held in the Tribal Court commencing on October, 00, yielding a finding of no liability. Unhappy with the outcome, over five years after the alleged initial injury, and almost two years after the Tribal Court decision in this matter, Plaintiff filed the present action. Neither the Compact nor the Ordinance allows or waives sovereign immunity for such a direct action in this federal Court, which does not sit as a court of appeals from the Tribal Court. I THIS MOTION TO DISMISS IS PROPER UNDER RULE, F.R.CIV.P. This motion is proper under Rule (b(,, and of the Federal rules of Civil Procedure: Similarly, tribal immunity precludes subject matter jurisdiction in an action brought Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

7 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 against an Indian tribe. Alvarado v. Table Mountain Rancheria, 0 F.d 00, 0-0 ( th Cir., 00. See also E.F.W. v. St. Stephen s Indian High School, F.d, 0-0 (0 th Cir., 00: Tribal sovereign immunity is a matter of subject matter jurisdiction [cit.om.], which may be challenged by a motion to dismiss under Fed.R.Civ.P. (b(. Similarly, because neither the Compact nor the Ordinance provides for a private citizen to bring a claim for breach of the Compact or wrongful death in this Court, Plaintiff has failed to state a claim on which relief can be granted. II. THE BARONA BAND IS A FEDERALLY-RECOGNIZED INDIAN TRIBE. Pursuant to Rule 0 of the Federal Rules of Evidence, the Tribe requests the Court to take judicial notice that it is a federally-recognized Indian tribe. If there is any doubt on this point, see the official federal list of all such recognized tribes in Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, found beginning at page 00 of Volume, No. 0, of the Federal Register, October, 00. A copy of this notice is attached to the Declaration of Art Bunce as Exhibit. The Tribe is listed as Capitan Grande Band of Diegueno Mission Indians of California: Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California. U.S.C. 0 requires that, The contents of the Federal Register shall be judicially noticed. The Ninth Circuit has found the Federal Register list of Indian tribes to be authoritative in LaPier v. McCormick, F.d 0, 0 ( th Cir. : Absent evidence of its incompleteness, the BIA list appears to be the best source to identify federally acknowledged tribes. This Court, in Sycuan, Barona, and Viejas Bands of Mission Indians v. Roache, F.Supp., 00-0 (S.D.Cal.,, aff d. F.d ( th Cir.,, described all Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

8 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 three plaintiffs, including the Tribe, as three Indian tribes who operate gaming centers on their Reservations and as federally-recognized Indian tribes. See also Barona Group of Capitan Grande Band of Mission Indians v. Duffy, F.d, - ( th Cir.,, in which the Ninth Circuit stated Barona is an independent Indian Nation recognized by federal statute with its reservation in the County of San Diego. The Tribe is therefore clearly a federallyrecognized Indian tribe. III. THE TRIBE POSSESSES SOVEREIGN IMMUNITY FROM UNCONSENTED SUIT. It is well-established that, as a general proposition, Indian tribes possess sovereign immunity from unconsented suit. 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. [cit.om.] Kiowa Tribe v. Manufacturing Technologies, U.S., ( Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. Oklahoma Tax Commission v. Citizen Band of Potawatami Indian Tribe, U.S. 0, 0 ( Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, U.S., ( The Yakima Nation argues here, as it did in the courts below, that it is a sovereign by reason of its original status as a sovereign (citing United States v. Wheeler, U.S., S.Ct 0 (. It is possessed of the common-law immunity from suit traditionally enjoyed by sovereign powers, subject to the superior and plenary control of congress [A] waiver of sovereign immunity cannot be implied but must be unequivocally expressed. [cit. om.] With these propositions we can, and indeed must, agree. In re Greene, 0 F.d 0, ( th Cir., Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

9 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 Indian tribes and their governing bodies possess common-law immunity from suit. They may not be sued absent express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress. Burlington Northern Railroad Co. v. Blackfeet Tribe, F.d, 0 ( th Cir., Indian tribes have long been recognized as possessing commonlaw immunities from suit co-extensive with those enjoyed by other sovereign powers including the United States as a means of protecting tribal political autonomy and recognizing their tribal sovereignty which substantially pre-dates our constitution. See, e.g., Santa Clara Pueblo v. Martinez, U.S., (; United States v. Wheeler, U.S., - (; United States v. Mazurie, U.S., (; United States v. United States Fidelity & Guaranty Co., 0 U.S. 0, (0; Kennerly v. United States, F.d, ( th Cir., ; Rehner v. Rice, F.d 0, ( th cir., (en banc, rev d on other grounds, U.S. (; see also F. Cohen, Handbook of Federal Indian Law (d ed.. Absent congressional or tribal consent to suit, state and federal courts have no jurisdiction over Indian tribes; only consent gives the courts the jurisdictional authority to adjudicate claims raised by or against tribal defendants. Santa Clara Pueblo, U.S. at, -; Puyallup Tribe, Inc. v. Department of Game, U.S., ( (Puyallup III; Snow v. Quinault Indian Nation, 0 F.d, ( th Cir.,, cert. denied, U.S. (; United States v. Oregon, F.d 00, 0 ( th Cir., ; California ex rel. California Dep t of Fish and Game v. Quechan Tribe of Indians, F.d, ( th Cir.. Pan American Co. v. Sycuan Band of Mission Indians, F.d, ( Plaintiff invites the Court to discard the entire doctrine of tribal sovereign immunity. He cites language from the majority opinion in Kiowa, supra, that questions the continuing vitality of the doctrine (Complaint, p., lines -0. However, he fails to note that, after a full discussion of many factors that might undermine the doctrine, the - majority of the Supreme Court made no change at all: In light of these concerns, we decline to revisit our case law and choose to defer to Congress. Kiowa, supra, U.S. at 0. If the Supreme Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

10 Case :-cv-00-ben-jma Document Filed 0/0/ Page 0 of 0 0 Court declines to alter the doctrine, this Court should certainly not do so. Thus, under controlling Supreme Court and Ninth Circuit precedent, the state of the law is that the Tribe enjoys immunity from suit absent Congressional abrogation or its explicit consent to suit. IV. THE DOCTRINE OF SOVEREIGN IMMUNITY APPLIES TO THE BARONA VALLEY RANCH RESORT & CASINO. As noted in the accompanying Declaration of Art Bunce, Barona Valley Ranch Resort & Casino is the name under which the Tribe conducts its tribal governmental gaming enterprise. It has the same legal status as does the Tribe itself, including its sovereign immunity. The Ninth Circuit has so held in its leading analysis of the subject in Allen v. Gold Country Casino, F.d 0, 0 ( th Cir., 00: This immunity extends to business activities of the tribe, not merely to governmental activities. Am Vantage Cos. V. Table Mountain Rancheria, F.d 0, 00 ( th Cir., 00. When the tribe establishes an entity to conduct certain activities, the entity is immune if it functions as an arm of the tribe. See, e.g., Marceau v. Blackfeet Hous. Auth., F.d, ( th Cir., 00 (holding that Blackfeet Tribe s sovereign immunity extends to Blackfeet Housing Authority; Redding Rancheria v. Super. Ct., Cal.App. th, -; 0 Cal.Rptr.d (00 (holding that off-reservation casino owned and operated by tribe was arm of the tribe, and therefore was entitled to sovereign immunity; Trudgeon v. Fantasy Springs Casino, Cal.App.th,, Cal.Rptr.d ( (recognizing sovereign immunity of forprofit corporation formed by a tribe to operate the tribe s casino. The question is not whether the activity may be characterized as a business, which is irrelevant under Kiowa, but whether the entity acts as an arm of the tribe so that its activities are properly deemed to be those of the tribe. See also Cook v. Avi Casino Enterprises, Inc., F.d, ( th Cir., 00 in which the Ninth Circuit affirms and applies this analysis and conclusion, and Frazier v. Turning Stone Casino, F.Supp.d, 0 (N.D.N.Y., 00 in which the immunity applied to both a tribe Memo of P s and A s in Support of Motion to Dismiss 0 Case no. -cv-0

11 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 and the activities of a tribal entity such as the Casino. A California District Court agrees, on facts strikingly analogous to those of the present case: Plaintiffs assert that no record has been presented to establish that the Casino operates as an arm of the Tribe sufficient to warrant immunity.... Defendants provide the Declaration of the Tribal Administrator, which states that The Tribe conducts gaming on its tribal trust lands under the fictitious business name Chicken Ranch Bingo and Casino pursuant to a Tribal-State class III gaming compact with the State of California and the requirements of the Indian Gaming Regulatory Act. The Tribe, dba, the Chicken Ranch Bingo and Casino is not a corporation under either tribal, state or federal law. Doc., Amended Costa Declaration, at :-. Defendants have established their entitlement to tribal sovereign immunity. Ingrassia v. Chicken Ranch Bingo and Casino, F.Supp. d,, (E.D.Cal., 00 This result largely flows from Central Machinery Co. v. Arizona State Tax Commission, U.S. 0,, n. (0, in which the Supreme Court stated that It is irrelevant that the sale was made to a tribal enterprise rather than to the tribe itself. For this reason, the Tribe submits that a suit against its enterprise operates as a suit against the Tribe itself. Both the casino and the Tribe are immune from suit. V. ANY CLAIM OF SOVEREIGN IMMUNITY MUST BE RESOLVED PRIOR TO AND IRRESPECTIVE OF THE MERITS OF PLAINTIFF S CLAIMS. The issue of tribal sovereign immunity is jurisdictional in nature. McClendon v. U.S., F.d, ( th Cir.,. The Ninth Circuit reiterates this principle: Thus, since the issue of tribal sovereign immunity is jurisdictional in nature, Puyallup III, U.S. at, S.Ct. at ; USF & G, 0 U.S. at 0 S.Ct. at ; Chemehuevi Indian Tribe v. California State Bd. Of Equalization, F.d 0, 0 ( th Cir., rev d in part on other grounds, U.S., 0 S.Ct., L.Ed.d (; Big Spring v. United States Bureau of Indian Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

12 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 Affairs, F.d, ( th Cir., cert. denied, U.S., 0 S.Ct., L.Ed.d (, we must first determine whether the Band has effectively waived tribal immunity thus making it amenable to suit in federal court irrespective of the merits of Pan Am s tort and contractual claims. Pan American Co. v. Sycuan Band of Mission Indians, F.d, ( th Cir., The question of tribal sovereign immunity is jurisdictional in nature. [cit. om.] Accordingly, we must address it first and resolve it irrespective of the merits of the claim. Chemehuevi Indian Tribe v. California State Board of Equalization, F.d 0, 0 ( th Cir., ; reversed on other grounds, U.S. (. In the instant case, the Tribe contends that, due to its sovereign immunity, this Court lacks personal jurisdiction over it and subject matter jurisdiction to hear this action against it. This lack of personal and subject matter jurisdiction must therefore be decided prior to and irrespective of the merits of this case. VI. PLATNTIFF ALLEGES NO FEDERAL STATUTE THAT CONFERS SUBJECT MATTER JURISDICTION ON THIS COURT. Perhaps because he acts in pro per, the plaintiff does not allege any statutory basis for this Court s jurisdiction. Instead, he alleges that jurisdiction derives from case law, claiming that a purported waiver of tribal sovereign immunity suffices for jurisdiction in this Court. (Complaint,, p., lines -. Even if such a waiver were present, that would at most provide personal jurisdiction, not subject matter jurisdiction. The Ninth Circuit has held that, even with such a waiver, a plaintiff must still show a statutory basis for subject matter Although it is not identified as such, the Tribe will regard the document filed by Plaintiff on August, 0 as his Complaint. Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

13 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 jurisdiction: Yet the absence of immunity does not establish the presence of subject matter jurisdiction [over an Indian tribe]. Alvarado v. Table Mountain Rancheria, 0 F.d 00, 0 ( th Cir., 00. Neither of the following two statutes mentioned by Plaintiff provides subject matter jurisdiction in this case. A. U.S.C. does not apply in this case. Even though plaintiff does not allege any jurisdictional statute, he has checked box Federal Question under Part II, entitled Basis of Jurisdiction in his Civil Cover Sheet. By this the Tribe will take it that he alleges jurisdiction under U.S.C.. If so, Plaintiff must show in his pleading, affirmatively and distinctly, the existence of those facts that are essential to federal jurisdiction. Smith v. McCullough, 0 U.S., (. He must allege a federal statute that provides his cause of action, or how his right to relief depends on a substantial question of federal law. For a case to arise under federal law, a plaintiff s well-pleaded complaint must establish either ( that federal law creates the cause of action or ( that the plaintiff s asserted right to relief depends on a substantial question of federal law. K America Corp. v. Roland Oil & Gas Co., F.d 0, 0 (th Cir., 0 Plaintiff does not cite any federal statute that creates his causes of action. He does not even state what those causes of action are, only the relief desired. But the title of his Complaint does state: BREACH OF TRIBAL COMPACT WITH STATE OF CALIFORNIA WRONGFUL DEATH From this, the Tribe will have to assume that his causes of action are ( breach of contract and ( wrongful death. If so, both causes of action originate in state law, not federal law. The Ninth Circuit, in its leading case on the subject, has held that, even if a claim involves a tribe and requires the interpretation of federal law, that is not enough for a claim to arise Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

14 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 under federal law, or for plaintiff s cause of action to depend on, rather than just involve, a substantial question of federal law. Otherwise, the federal courts would become small claims courts for every contract, tort, or other state law claim involving a tribe and federal law: There is nothing in the present case that suggests that the action is anything other than a simple breach of contract case.... The Tribe... seeks recovery of damages for failure to perform a construction contract.... [ ] It is true that the arising under requirement of section may be met by claims founded upon federal common law as well as those of a statutory origin. [cit.om.] However, we can discern no reason to extend the reach of the federal common law to cover all contracts entered into by Indian tribes. Otherwise the federal courts might become a small claims court for all such disputes. Gila River Indian Community v. Henningston, Durham & Richardson, F.d 0, - ( th Cir., 0 The fact that the Court must review federal statutory and case law to determine whether Plaintiffs may pursue their state law claims against Defendants in federal court does not transform Plaintiffs action from one arising under New York Law into one arising under federal law. Frazier v. Turning Stone Casino, F.Supp.d, 0 (N.D.N.Y., 00 Thus, even though a tribe is involved and issues of federal law must be considered, it is the essential nature and origin of Plaintiff s claims that determine whether those claims arise under federal law. By asserting that his causes of action are breach of contract and wrongful death, Plaintiff confirms that his claims do not arise under federal law. Those claims are traditional state law claims. They arise under state law for purposes of federal question jurisdiction. Therefore, Plaintiff s own Complaint shows that his claims do not arise under federal law and that no jurisdiction over them exists under U.S.C.. B. U.S.C. does not apply in this case. Again looking to the Civil Cover Sheet for an allegation of federal court jurisdiction, Plaintiff notes as follows in Part VI, entitled Cause of Action ; Brief description of cause: : Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

15 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 : Breach of Tribal Compact Wrongful Death. From this, the Tribe will assume that the Plaintiff alleges jurisdiction under U.S.C.. Such an allegation is clearly inadequate. This statute concerns only certain enumerated actions brought against the United States as a defendant, primarily tort and contract claims, and does not even mention claims against Indian tribes. In this case, the United States is not even named as a defendant, there are no allegations concerning the United States, and the United States is not a party to the Tribe s compact with the State of California. Clearly, no jurisdiction exists under this statute for Plaintiff s claims. VII. PLAINTIFF MISINTERPRETS THE TRIBE S GAMING COMPACT. Plaintiff claims that the Tribe has breached its Tribal-State compact with the State of California, particularly the provision by which the Tribe agrees that patron personal injury claims would be fairly adjudicated. (Complaint, p., lines - and p., lines - He also alleges that the Tribal Court is unfair because it includes members of the Tribe s elected Tribal Council. (Complaint, p., lines -. He believes that he can pursue these allegations because he perceives a waiver of the Tribe s sovereign immunity in its Compact: In that compact the Tribe consented to suit when it promised to adopt and make available to patrons a tort liability ordinance... under which the Tribe waives immunity to suit for money damages... (Compact Sec., ((d Complaint, p., lines 0- To understand how Plaintiff misconstrues the Compact requires a brief review of the Compact as a whole, and its structure. The introductory paragraph of the Compact reads as follows: Instead of providing a copy of the entire text of its Compact, the Tribe has attached copies of the relevant pages as an exhibit to the accompanying Declaration of Art Bunce. The Tribe will provide a full copy, if desired. Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

16 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 This Tribal-State Gaming Compact is entered into on a government-to-government basis by and between the Barona Band of Mission Indians, a federally-recognized sovereign Indian tribe (hereinafter Tribe, and the State of California, a sovereign State of the United States (hereinafter State pursuant to... P., first paragraph Thus, the parties to this Compact are the Tribe and the State of California. The Compact anticipates that disputes might arise between these parties. Section.0. of the Compact is entitled DISPUTE RESOLUTION PROVISIONS and consists of Section.-.. Section.. encourages voluntary resolution of disputes between the Tribe and the State and refers to them as the parties : In recognition of the government-to-government relationship between the Tribe and the State, the parties shall make their best efforts to resolve disputes that occur under this Gaming Compact by good faith negotiations... Compact, p., section.. Sections.(a-(c establish a meet and confer process and, failing that, provides for arbitration of the dispute, if desired. Section.(d provides that, if a dispute is not otherwise resolved, disputes may be resolved in either federal court or state court, again referring to the parties ( The parties agree that.... Section. describes the details of the arbitration process. Section.. authorizes other means of dispute resolution by mutual agreement if available to either party. Failing such other methods of dispute resolution, Section. of the Compact (pp. -0 provides limited waivers of both tribal and state sovereign immunity in the designated courts for resolution of disputes by litigation, but subject to important limitations (bold emphasis added: (a In the event that a dispute is to be resolved in federal court or a state court of competent jurisdiction as provided in this Section.0, the State and the Tribe expressly consent to be sued therein and waive any immunity therefrom that they may have[,] provided that: Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

17 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 ( The dispute is limited solely to issues arising under this Gaming Compact; ( Neither side makes any claim for monetary damages (that is, only injunctive, specific performance, including enforcement of a provision of this Compact requiring payment of money to one or another of the parties, or declaratory relief is sought; and ( No person or entity other than the Tribe and the State is party to the action, unless failure to join a third party would deprive the court of jurisdiction; provided that nothing herein shall be construed to constitute a waiver of the sovereign immunity of either the Tribe or the State in respect to any such third party. (b In the event of intervention by any additional party into any such action without the consent of the Tribe and the State, the waivers of either the Tribe or the State provided for herein may be revoked, unless joinder is required to preserve the court s jurisdiction; provided that nothing herein shall be construed to constitute a waiver of the sovereign immunity of either the Tribe or the State in respect to any such third party. Such limitations on a waiver of sovereign immunity by a sovereign must be respected and strictly construed: A waiver of sovereign immunity must be strictly construed, in terms of its scope, in favor of the sovereign. Sossamon v. Texas, U.S., S.Ct., (0. By its express language, the above mutual waivers provided by and between the Tribe and the State apply only in litigation between themselves, subject to the limitations set forth in section.., and do not extend to any third parties. The express language explicitly disclaims any waiver in favor of any third parties. Another federal court has rejected a reading of similar compact language as waiving a tribe s immunity to the claims of a terminated casino employee under the Family and Medical Leave Act: Plaintiff even goes so far as to claim that the waiver of the immunity contained in the Nation-State Gaming Compact suffices for a finding that Defendant has waived immunity to suit for the claims of Plaintiff herein.... The Nation-State Gaming Compact... to which Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

18 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 only the Seneca Nation and the State of New York are parties, concerns gaming pursuant to the Indian Gaming Regulatory Act [cit.om] and [n]othing in th[e] Compact affects any matter not specifically expressed [therein]. [cit.om.] Furthermore, the arbitration clauses contained in the Compact, and waivers of immunity by both the State of New York and the Seneca Nation, pertain only to causes of action related to gaming and the terms of the Compact.... Waiver in the one contract to which Plaintiff was not a party and for specifically stated purposes of gaming, does not constitute express and clear waiver of immunity by the Seneca Nation in the instant action addressing a wholly different area of law and facts.... Therefore, it would be too broad of a reading to find that simply because immunity was waived as to gaming activities in a compact between the Nation and the State of New York under the IGRA, that immunity was also waived for unrelated employment claims under the FMLA. Myers v. Seneca Niagara Casino, F.Supp.d, 0- (N.D.N.Y., 00 Plaintiff admits that this limited waiver by the Tribe of its immunity in section. of the instant Compact extends only to the State of California: But, according to the Compact, individuals cannot claim a breach of the Compact... (Plaintiff s Complaint :-;... individuals are not given the right to sue the Tribe in any Court because the Compact does not specifically give it. (Complaint, p., lines -0 Despite this concession, Plaintiff argues, with no legal citation, that, as a California citizen, he represents the State in this suit:... in this case the Plaintiff is an Agent of the State of California because it [sic] is a citizen of that State. (Complaint, p., lines -. This assertion is contrary to section. of the Compact which defines State as the State of California or an authorized official or agency thereof. Plaintiff does not even allege, much less show, that he is an authorized state official or that any state agency has authorized him to speak for the State in any manner. If the State of California is dissatisfied with the performance of the Tribe under its Compact, the State can certainly pursue the matter under section.0 of the Compact, as the Compact specifically allows. But Mr. Nasella is not the State. The waiver of tribal sovereign immunity available to Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

19 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 the State is not available to him. Because this is the only such waiver alleged by Plaintiff, the Tribe s immunity remains intact as to Plaintiff s claims, and this Court lacks subject matter jurisdiction as to his claims. For the same reason, Plaintiff has failed to state a claim on which relief could be granted. Even if the above Compact language regarding waiver could somehow be construed to extend to Plaintiff s claims, those claims would still fail, for the following reasons. immunity: First, the Compact permits the Tribe to choose in which forum it will waive its The Tribe shall adopt and make available to patrons a tort liability ordinance setting forth the terms and conditions, if any, under which the Tribe waives immunity to suit for money damages resulting from intentional or negligent injuries to person or property at the Gaming Facility, or in connection with the Tribe s Gaming Operation, including procedures for processing any claims for such money damages; provided that nothing in this Section shall require the Tribe to waive its immunity to suit except to the extent of the policy limits set out above. Compact, p., Section 0.(d While certain other tribes have met this requirement by an appropriate waiver in their respective tort claims ordinances in state and/or federal court, others have opted for binding arbitration. Still others, such as this Tribe, have chosen to waive their immunity in their own Tribal Court. Any such choice is equally valid. Under the Compact, the Tribe is entitled to make its waiver only in its Tribal Court, even if Plaintiff finds fault with that choice. Second, the mere fact that members of the Tribe s elected Tribal Council sit as the Barona Tribal Court is of no consequence. The Ninth Circuit has recognized the adequacy of tribal remedies and fora that include tribal officials or members, citing a variety of cases. Lewis v. Norton, F.d, ( th Cir., 00. Another district court has explicitly rejected the very claims Plaintiff now makes in this regard: Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

20 Case :-cv-00-ben-jma Document Filed 0/0/ Page 0 of 0 0 The mere fact that an Indian court will hear an Indian case does not make that court biased. [cit.om.]... Plaintiff bears the burden of proving that the Narragansett Tribal Council would be profoundly biased against its claims. [cit.om.] The lack of separation of powers is not proof of bias. Also the fact that a tribal agency is a party to the lawsuit is not proof of bias. Plaintiff offered evidence of delays in the resolution of this case by the Council, but no evidence that the Narragansett tribal authorities are biased against non-indians or other parties. The Narragansett Tribe s dispute resolution system exists as the contract explained, and plaintiff, thus, had no basis for assuming that the Tribal Council would establish a separate Tribal Court or would operate like a federal district court. Therefore, the Court concludes that there is no bias in this case sufficient to void the arbitration and forum selection clause. Ninigret Development Corp. v. Narragansett Indian Wetoumuch Housing Authority, F.Supp.d, 0 (D.R.I., This result should come as no surprise. Despite Plaintiff s protestations to the contrary, the Supreme Court 0 years ago, and again more recently, has held that tribal institutions need not conform to the expectations of non-indians who enter reservations, and need not allow the participation of non-members: Whatever place consent may have in contractual matters and in the creation of democratic governments, it has little if any role in measuring the validity of the exercise of legitimate sovereign authority. Requiring the consent of the entrant deposits in the hands of the excludable non-indian the source of the tribe s power, when the power instead derives from sovereignty itself.... Indian sovereignty is not conditioned on the assent of a nonmember; to the contrary, the nonmember s presence and conduct on Indian lands are conditioned by the limitations the tribe may chose to impose. Merrion v. Jicarilla Apache Tribe, U.S. 0, ( Indian courts differ from traditional American courts in a number of significant respects. [cit.om.] And nonmembers have no part in tribal government they have no say in the laws and regulations that govern tribal territory. Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., U.S., S.Ct. 0, (00 Memo of P s and A s in Support of Motion to Dismiss 0 Case no. -cv-0

21 Case :-cv-00-ben-jma Document Filed 0/0/ Page of Therefore, the Plaintiff is simply wrong in reading far more into the waiver language of the Compact than the Compact actually says. The waiver that he finds in favor of himself simply does not exist. CONCLUSION The Tribe is a federally-recognized Indian tribe, possessing sovereign immunity from all unconsented suits. The Tribe s business enterprise, the Barona Valley Ranch Resort & 0 0 Casino, shares the same sovereign immunity as the Tribe itself. Plaintiff has made no allegations that Tribe, or its enterprise the Barona Valley Ranch Resort & Casino, has consented to the suit filed by Plaintiff in this matter, other than his imaginative interpretation of the Tribe s Compact with the State of California. Plaintiff s interpretation of the Compact is at stark variance with its express language, and the principle of narrow construction of waivers of sovereign immunity, including honoring whatever conditions on waiver the sovereign attaches. Ordinarily, the Tribe does not cite state cases in its federal litigation. But it must cite one state case now, not only because it involves this very Tribe as the defendant, but also because the plaintiffs there advanced a similarly novel theory of waiver of tribal sovereign immunity. Those personal injury plaintiffs also claimed that the same Compact language allowed them to bring an action directly against the Tribe, that time in state court, rather than in the Barona Tribal Court, as specified in the Tribe s Tort Claims Ordinance. The California District Court of Appeal rejected this novel reading of the very same Compact language as is involved here: Here, by entering into the Compact, Barona waived its sovereign immunity to certain negligence claims against it... However,.... Barona s waiver did not constitute a consent to suit in state court on negligence claims against it, but instead specified that the Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

22 Case :-cv-00-ben-jma Document Filed 0/0/ Page of 0 0 Barona Tribal Court was the exclusive forum for the resolution of such claims. (Tort claims ord., IV(B, V. Barona did not waive its sovereign tribal immunity, either in the Compact or its tort claims ordinance, or otherwise consent to a suit against it in state court on the Lawrences claims. Lawrence v. Barona Valley Ranch Resort & Casino, Cal.App. th, 0; Cal.Rptr.d, (00 The Lawrence plaintiffs made the same kind of claim that the structure of the Barona Tribal Court is so inherently unfair that its perceived unfairness, in itself, must somehow amount to a waiver for them to challenge it. The District Court of Appeal rejected this argument: Finally, the Lawrences contend that the process established by Barona s tort claims ordinance for handling claims against Barona does not provide for the fair resolution of such claims and that the failure to provide a fair forum itself constitutes a waiver of tribal immunity.... Lastly, as indicated above, a tribe s consent to suit must be clear and any conditions imposed thereon must be strictly construed and applied and the language of the Compact is unequivocal that, while Barona agreed to waive its tribal sovereign immunity to certain claims against it, it was permitted to choose the forum for the resolution of those claims and the terms governing the process for such resolution. (Compact, 0.(d; [cit.om.] That the Lawrences find Barona s choices unacceptable does not render Barona subject to suit in state court. Lawrence, supra, Cal.App. th at, Cal.Rptr.d at (bold emphasis added For the reasons noted above, the Court lacks personal jurisdiction over the Tribe and subject matter jurisdiction over the present action against it. Even if the Court did have personal and subject matter jurisdiction, the Plaintiff has still not shown federal statutory jurisdiction under either U.S.C. or. His tort and contract claims simply originate in state law, not federal law. Lacking such jurisdiction in this Court, Plaintiff has failed to state a claim on which relief can be granted. Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0

23 Case :-cv-00-ben-jma Document Filed 0/0/ Page of For these reasons, the Barona Band of Mission Indians, d.b.a. Barona Valley Ranch Resort & Casino, urges the Court to dismiss this action. 0 0 Dated: October, 0 Respectfully submitted, /s/_art Bunce Art Bunce Kathryn Clenney Attorneys for Specially-Appearing Defendant the, Barona Band of Mission Indians, d.b.a. Barona Valley Ranch Resort & Casino Memo of P s and A s in Support of Motion to Dismiss Case no. -cv-0