CASE NO IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Transcription

1 Case: Document: Date Filed: 02/01/2010 Page: 1 CASE NO IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT THOMAS STEWART ) ) Appellant, ) ) VS. ) ) WALLACE COFFEY, ET AL. ) ) Appellees. ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA THE HONORABLE LEE WEST D.C. NO. CV W ANSWER BRIEF OF APPELLEES --- TRIBAL DEFENDANTS (Oral Argument is Not Requested.) Respectfully submitted, James M. Burson, OBA No Klint A. Cowan, OBA No William R. Norman, OBA No HOBBS, STRAUS, DEAN & WALKER, LLP Second Floor, 117 Park Avenue Oklahoma City, Oklahoma Telephone: (405) Facsimile: (405) jburson@hobbsstraus.com ATTORNEYS FOR APPELLEES Wallace Coffey, Ronald Red Elk, Edmond Mahseet, Lanny Asepermy, Jenice Bigbee, Oscar

2 Case: Document: Date Filed: 02/01/2010 Page: 2 Codopony, Cheryl Lewis, Vickie Sanders, Edward Tahah, Camilita Edwards, Martha Turner, Mary "Kooch" Tenequer, Justin Muncy, Harry Tahsequah, Tina Andonian, Ken Gooden, Margret Oberley, LaNora Parker, Gene Red Elk, Sharrod Tabbytite, Scott Canaday, William Norman, James Burson, Kirke Kickingbird, and Hobbs, Straus, Dean & Walker, LLP

3 Case: Document: Date Filed: 02/01/2010 Page: 3 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii STATEMENT OF PRIOR OR RELATED APPEALS...2 JURISDICTIONAL STATEMENT...2 STATEMENT OF THE ISSUES...2 STATEMENT OF THE CASE...4 STATEMENT OF FACTS...6 SUMMARY OF ARGUMENTS...11 STANDARD OF REVIEW...11 ARGUMENTS AND AUTHORITIES...13 I. There is no subject-matter jurisdiction over a dispute arising from the revocation of a gaming license issued by an Indian Tribe...13 A. There is no subject-matter jurisdiction under federal gaming law...14 B. There is no subject-matter jurisdiction under federal equal employment opportunity law...15 C. There is no subject-matter jurisdiction where Comanche Nation's immunity extends to tribal defendants...15 II. Dismissal of Tribal Defendants is proper where Stewart failed to make a plausible claim for relief...16 A. There is no plausible claim under 42 U.S.C. 1982, 1983, or 1985(3) or under Bivens B. There is no private right of action in federal court under Indian-specific federal laws...18 III. Other federal laws do not grant the court jurisdiction or provide Stewart a claim...19 A. The Treaty of Medicine Lodge provides no claim and Lone Wolf does not provide jurisdiction B. The Citizenship Act does not confer jurisdiction or provide Stewart a claim...22 C. The Supreme Court's decision in Trapp v. Choate does not provide Stewart with a claim...23 i

4 Case: Document: Date Filed: 02/01/2010 Page: 4 D. Stewart's Seventh Amendment right to jury trial was not improperly denied E. The Appellate Court should not consider issues or arguments that were not raised in the complaint or presented to the District Court...25 CONCLUSION...25 CERTIFICATE OF COMPLIANCE WITH RULE CERTIFICATE OF COMPLIANCE WITH RULE CERTIFICATE OF DIGITAL SUBMISSION...28 ECF CERTIFICATE...28 CERTIFICATE OF SERVICE...29 ii

5 Case: Document: Date Filed: 02/01/2010 Page: 5 Cases TABLE OF AUTHORITIES Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007)...12 American Manufacturers Mut. Ins. Co. v. Sullivan, 457 U.S. 40, (1999)...18 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)....12, 17 Bell Atlantic v. Twombly, 550 U.S. 544 (2007),...3 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 ( ,18 Brown v. United States, 32 Ct. Cl. 432 (1897)) California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)...14, 20 Choate v. Trapp, 224 U.S. 665 (1912) Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003)...12 E.F.W. v. St. Stephen's Indian High School, 264 F.3d 1297, 1303 (10th Cir. 2001)...12 Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir. 2001) Gilbert v. David, 235 U.S. 561 (1915)...24 Griffin v. Breckinridge, 403 U.S. 88, 102 (1971)) Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991))...17 Hartman v. Golden Eagle Casino, 243 F. Supp. 2d 1200, 1203 (D. Kan. 2003)...15 Hartman v. Kickapoo Tribe Gaming Commission, 319 F.3d 1230 (10th Cir. 2003)...19 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)...19 Martinez v. Southern Ute Tribe, 273 F.2d 731, 734 (10th Cir. 1960)...13 N.L.R.B. v. San Juan Pueblo, 276 F.3d 1186, (10th Cir. 2002)...20 Native American Distributing v. Seneca-Cayuga Tobacco, Co., 546 F.3d 1288 (10th Cir. 2008)...15 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)...16 Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)...17 Romero v. Peterson, 930 F.2d 1502, 1506 (10 th Cir. 1991)...18 Sac and Fox Nation of Missouri v. La Facer, 979 F. Supp. 1350, 1352 (D.C. Kan Santa Clara Pueblo v. Martinez, 436 U.S. 49, (1978)...18, 19 Shaare Tefila Congregation v. Cobb, 482 U.S. 615, 617 (1987))...18 Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997)...24 Tele-Communications, Inc. v. Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997)...24 Tom v. Sutton, 533 F.2d 1101, 1103, n.1 (9th Cir. 1976)...22 Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987)...20 United States v. Mazurie, 419 U.S. 544, 557 (1975))...20 iii

6 Case: Document: Date Filed: 02/01/2010 Page: 6 United States v. Wheeler, 435 U.S. 313, 322 (1978)...20 Wardle v. Ute Indian Tribe, 623 F.2d 670, 672 (10th Cir. 1980)...15 Statutes 25 U.S.C U.S.C U.S.C U.S.C ,19 25 U.S.C U.S.C ,14 25 U.S.C ,11 25 U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C , 11, U.S.C , U.S.C , U.S.C , U.S.C. 1985(3)...3, U.S.C. 2000(e) U.S.C. 401(B)... 3, 11, 22 Seventh Amendment to the U.S. Constitution...24 Other Authorities 74 Fed. Reg , Cohen's Federal Indian Law (Nell Jessup Newton, et al. eds; 2005 ed [3]...22 Comanche Nation Gaming Ordinance (2005)...8 Treaty of Medicine Lodge, 15 Stat. 581, 1868 WL (Oct. 21, 1867)...11, 12, 19, 20, 21 Wright & Miller, 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure Rules Fed. R. App. P. 28(a)(4),...2 iv

7 Case: Document: Date Filed: 02/01/2010 Page: 7 Fed. R. App. P. 28(a)(5),...2 Fed. R. App. P. 28(a)(6),...4 Fed. R. App. P. 28(a)(7),...6 Fed. R. App. P. 28(a)(9)(B) Fed. R. App. P. 28(b)(1)...2 Fed. R. App. P. 28(b)(2)....2 Fed. R. App. P. 28(b)(3)....4 Fed. R. App. P. 28(b)(4)....6 Fed. R. App. P. 28(b)(5)...12 Fed. R. App. P. 4(a)(1)(A)....2 Fed. R. Civ. P. 12(b)(1)... 3,5,11,24 Fed. R. Civ. P. 12(b)(6)... 4,5,11,16,17,24 v

8 Case: Document: Date Filed: 02/01/2010 Page: 8 Appellees Oscar Codopony, Cheryl Lewis, Vickie Sanders, Ed Tahah (collectively officials appointed to the Comanche Nation Gaming Commission, hereinafter "Gaming Commissioners"); Camilita Edwards, Martha Turner, Mary "Kooch" Tenequer, Justin Muncy, Harry Tahsequah, Tina Andonian, Ken Gooden, Margret Oberley, Gene Red Elk, Sharrod Tabbytite, and Scott Canaday (collectively former and present employees of Comanche Nation gaming enterprises, hereinafter "Tribal Gaming Employees"); Wallace Coffey, Ronald Red Elk, Lanny Asepermy, Edmond Mahseet, Jenice Bigbee, LaNora Parker, and Johnny Wauqua (collectively present and former elected officials of the Comanche Nation, hereinafter "Comanche Business Committee members"); and William Norman, James Burson, Kirke Kickingbird, and Hobbs, Straus, Dean & Walker, LLP (collectively present general legal counsel for the Comanche Nation, hereinafter "Tribal Attorneys") (all of the above hereinafter referred to collectively as "Tribal Defendants") 1 by and through counsel for the Comanche Nation, Hobbs, Straus, Dean & Walker, LLP, submit this Answer Brief in response to the Opening Brief of Appellant Thomas Stewart ("Stewart") whose claims for personal injury arise out of the revocation of a tribal gaming license by the Comanche Nation Gaming Commission. 1 Not included in the list of "Tribal Defendants" is John Harrington who was named in the caption of the Complaint. John Harrington retained separate legal representation because he had no official or employment relationship with the Comanche Nation and has filed a separate Answer Brief in this matter. 1

9 Case: Document: Date Filed: 02/01/2010 Page: 9 STATEMENT OF PRIOR OR RELATED APPEALS There are no prior or related appeals. JURISDICTIONAL STATEMENT Appellant Stewart failed to include a jurisdictional statement in his Operning Brief as required by Fed. R. App. P. 28(a)(4), and Appellee Tribal Defendants accordingly submit this Jurisdictional Statement as authorized by Fed. R. App. P. 28(b)(1). The notice of appeal of the final order of the U.S. District Court for the Western District of Oklahoma, issued on October 5, 2009, that dismissed Stewart's claim was timely filed on October 27, 2009, in accordance with 28 U.S.C and Fed. R. App. P. 4(a)(1)(A). Accordingly, this Court has jurisdiction. STATEMENT OF THE ISSUES Appellant Stewart failed to include a statement of issues in his Opening Brief as required by Fed. R. App. P. 28(a)(5), and Appellee Tribal Defendants accordingly submit this Statement of the Issues as authorized by Fed. R. App. P. 28(b)(2). Stewart did not allege diversity jurisdiction under 28 U.S.C. 1332, and did not contest Tribal Defendants' assertion that diversity jurisdiction was absent. The Court determined that Stewart's Complaint centered on the revocation of his gaming license issued by the Comanche Nation to be employed in its casinos. The 2

10 Case: Document: Date Filed: 02/01/2010 Page: 10 Court properly found no subject matter jurisdiction under 28 U.S.C because the Indian Gaming Regulatory Act, 25 U.S.C et seq. (IGRA), places the regulation, issuance, and revocation of a gaming license within the exclusive authority of the Comanche Nation. Hence, Stewart failed to identify any federal right of which he had been deprived or show that his right to relief depended on the construction of a federal statute. Upon examining the Complaint for possible violations of any other federal civil rights laws, 2 the Court properly concluded, in light of Bell Atlantic v. Twombly, 550 U.S. 544 (2007), that Stewart's complaint did "not allege 'enough facts to state a[ny] claim to relief [against any individual defendant in any capacity or against Hobbs Straus] that is plausible on its face,'" (Order p. 16, Dkt. No. 46). The issues on appeal are limited to the following: 1. Whether the District Court erred in granting Tribal Defendants' Motion to Dismiss by finding it lacked subject-matter jurisdiction in a suit seeking damages and mandamus relief arising out of the revocation of a tribal gaming license issued by the Indian tribe, pursuant to Fed. R. Civ. P. 12(b)(1)? 2 The Court scrupulously considered whether a claim could be discerned under the following federal laws or doctrines: Treaty of Medicine Lodge and various federal allotment laws; Citizenship Act of June 2, 1924, 8 U.S.C. 1401(b); Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000(e) et seq.; Indian Civil Rights Act, 25 U.S.C et seq.; 42 U.S.C. 1982; 42 U.S.C. 1983; 42 U.S.C. 1985(3); and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 3

11 Case: Document: Date Filed: 02/01/2010 Page: Whether the District Court erred in granting Tribal Defendants' Motion to Dismiss by finding that Stewart failed to allege sufficient facts to state a plausible, facial claim for relief against Tribal Defendants in any capacity, pursuant to Fed. R. Civ. P. 12(b)(6)? STATEMENT OF THE CASE Appellant Stewart failed to include a statement of the case in his Opening Brief as required by Fed. R. App. P. 28(a)(6), and Appellee Tribal Defendants accordingly submit this Statement of the Case as authorized by Fed. R. App. P. 28(b)(3). Stewart filed this suit pro se on July 22, At its core, the Complaint arises from official regulatory actions by the Comanche Nation Gaming Commission (hereinafter "Gaming Commission") that allegedly resulted in an improper revocation of Stewart's license to be employed with any casino owned and operated by Comanche Nation. Stewart requested "to be made whole and afforded damages." (Complaint at p. 13, Dkt. No. 1.) As succinctly summarized by the District Court in its order dismissing the suit, Stewart theorized that the revocation of his license to hold employment with the Comanche Nation casinos was a conspiracy concocted by Tribal Defendants (most of whom, although named in the caption of the Complaint, were never alleged to have done anything in the body of the Complaint). The alleged scheme 4

12 Case: Document: Date Filed: 02/01/2010 Page: 12 was in response to Stewart's efforts to provide information to auditors hired by Comanche Nation concerning alleged mismanagement of casino funds. Stewart also claimed dissatisfaction with the tribal hearing process provided him by the Gaming Commission in order to avoid having his gaming license revoked. On August 31, 2009, Tribal Defendants filed a Motion to Dismiss for lack of jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim for which relief could be granted, Fed. R. Civ. P. 12(b)(6). (Dkt. No. 39). Stewart filed a Response on September 14, 2009, which contained an unidentified attachment styled as a "memorandum" and a certificate of service signed by "A. A. Hopkins- Dukes." (Dkt. No. 44). Tribal Defendants filed a Reply on September 25, 2009, noting the irregularities, noting similarities between this filing and other federal cases containing the same bizarre legal arguments, and noting Hopkins-Dukes' connection with prior court cases. (Dkt. No. 45). The Court granted Tribal Defendants' Motion to Dismiss on October 5, 2009, finding that the Court had no subject-matter jurisdiction over the matter (Order p. 6, Dkt. No. 46), or alternatively, Comanche Nation's sovereign immunity protected Tribal Defendants from being sued in their official capacities (Order p. 7, Dkt. No. 46), and that Stewart failed to state a claim against Tribal Defendants in their individual capacities (Order p. 16, Dkt. No. 46). 5

13 Case: Document: Date Filed: 02/01/2010 Page: 13 Stewart filed a notice of appeal on October 27, 2009 (Dkt No. 50), and filed his Opening Brief on December 30, STATEMENT OF FACTS Appellant Stewart failed to include a statement of facts in his Opening Brief as required by Fed. R. App. P. 28(a)(7), and Appellee Tribal Defendants accordingly submit this Statement of Facts as authorized by Fed. R. App. P. 28(b)(4). The genesis of Stewart's Complaint arises out of the revocation of his Comanche Nation gaming license by the Gaming Commissioners in June, 2007 and his subsequent inability to hold employment with Comanche Nation casino enterprises. It was undisputed that all defendants, except John Harrington, had or continue to have some official or employment relationship with the Comanche Nation ("Tribal Defendants"). The Comanche Nation is a federally recognized Indian Tribe (see "Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs," 74 Fed. Reg , (August 11, 2009)) with governmental offices located north of Lawton, Oklahoma. The following jurisdictional facts were undisputed in the proceedings below: 1. Appellees Oscar Codopony, Cheryl Lewis, Vickie Sanders, and Ed Tahah were Gaming Commissioners of the Comanche Nation, duly appointed by the Comanche Business Committee pursuant to tribal law, who in the course 6

14 Case: Document: Date Filed: 02/01/2010 Page: 14 of performing their official duties under Comanche Nation law, determined that Stewart constituted a threat to the integrity of gaming and revoked Stewart's tribal gaming license. (Mot. to Dismiss p. 2-3, Dkt. No. 39.) 2. Appellees Camilita Edwards, Martha Turner, Mary Tenequer, Justin Muncy, Harry Tahsequah, Tina Andonian, Ken Gooden, Margrett Oberley, Gene Red Elk, Sharrod Tabbytite, and Scott Canaday were Stewart's co-workers at the Comanche Nation gaming enterprises (wholly owned by Comanche Nation) or were employees of the Comanche Nation Gaming Commission (an agency of the Comanche Nation which regulates its gaming operations) and had various employment-related interactions with Stewart during the time of his employment. (Mot. to Dismiss p. 3, Dkt. No. 39.) 3. Appellees Wallace Coffey, Ron Red Elk, Lanny Asepermy, Edmond Mahseet, Jenice Bigbee, LaNora Parker, and Johnny Wauqua had previously served or were serving on the Comanche Business Committee as elected officials of the Comanche Nation at the time of revocation of Stewart's gaming license. 3 Some of the named Comanche Business Committee members did not ever have any interaction with Stewart. Any interaction 3 Wallace Coffey and Johnny Wauqua were the only defendants identified in the body of the Complaint by name. Both had the singular distinction of having served as Chairman of the Comanche Nation (Wauqua and Coffey ). 7

15 Case: Document: Date Filed: 02/01/2010 Page: 15 with Stewart by the others occurred when acting in their official capacities and within their authority. (Mot. to Dismiss p. 4, Dkt. No. 39.) 4. Appellees William Norman, James Burson, Kirke Kickingbird, and the law firm of Hobbs, Straus, Dean & Walker, LLP, performed legal services for, and at the behest of, the Comanche Nation Gaming Commission during the course of events relevant to Stewart's claim. (Mot. to Dismiss p. 4, Dkt. No. 39.) 5. The CBC enacted the Comanche Nation Gaming Ordinance (2005) (hereinafter "Gaming Ordinance") which was approved by the Chairman of the National Indian Gaming Commission, an agency of the U.S. Department of the Interior, as required by the Indian Gaming Regulatory Act. 25 U.S.C. 2710(d)(2)A). (Mot. to Dismiss p. 5, Dkt. No. 39.) 6. The CBC appointed Gaming Commissioners to the Comanche Nation Gaming Commission (hereinafter "Commission") established by the Gaming Ordinance in or around June The Gaming Ordinance authorizes the Commission to regulate gambling activities within Comanche Nation jurisdiction, including investigating the background of gaming employees, making suitability determinations for persons to obtain and hold a license, investigating any suspicion of wrongdoing, enforcing compliance with laws, regulations and internal 8

16 Case: Document: Date Filed: 02/01/2010 Page: 16 control standards, and taking enforcement actions to protect the integrity of gaming and the primary source of revenue for the Comanche Nation. (Mot. to Dismiss p. 6, Dkt. No. 39.) 8. The Gaming Ordinance specifically authorized the Gaming Commissioners to issue, suspend, and revoke gaming licenses. (Id.) 9. Stewart was employed with Comanche Nation casinos as a key employee or primary management official, positions which require a gaming license, for a period of about 20 months (between November 2005 and June 2007). (Id.) 10. Stewart proposed that the Comanche Nation gaming enterprise acquire a computerized gaming-machine accounting and player-tracking system from Nevada Computer Associates (hereinafter "NCA") which had for one of its principals a person named Steven Urie (hereinafter "Urie"). (Id.) 11. The Gaming Commission obtained the following information concerning Mr. Urie: (A) a Nevada federal court convicted Urie of felony embezzlement from the employee retirement account of one of his companies and for which Urie needed to quickly raise $100,000 in restitution funds; (B) a Louisiana jury found Urie had lied to the Louisiana state gaming authorities in order to obtain a riverboat license and failed to fulfill other promises made to Louisiana; and (C) a Montana court found Urie bilked $900,000 from the Montana state gaming authority in failing to deliver a similar computerized 9

17 Case: Document: Date Filed: 02/01/2010 Page: 17 accounting system and had taken his company into bankruptcy in order to avoid collection by Montana on its judgment. (Mot. to Dismiss p. 8, Dkt. No. 39.) 12. Based on the foregoing information, the Commission directed Stewart, who was then acting-ceo of the Comanche Nation casino enterprises, in writing on May 3, 2007, to suspend further business activities with NCA and Urie, and directed Stewart to follow Commission regulations by having NCA immediately submit an application for a gaming-vendor license to the Commission for further background investigation and gaming license approval. (Mot. to Dismiss p. 8, Dkt. No. 39.) 13. On May 7, 2007, the Commission suspended Stewart's gaming license pending further investigation when he failed to heed the Commission's directive. (Mot. to Dismiss p. 9, Dkt. No. 39.) 14. On June 7, 2007, Stewart appeared at a hearing held by the Commission and presented testimony why his gaming license should not be revoked. (Id.) 15. On June 8, 2007, the Commission ordered the revocation of Stewart's gaming license upon finding that he posed a threat to the public interest or the effective regulation of gaming at Comanche Nation. (Mot. to Dismiss p. 10, Dkt. No. 39.) 10

18 Case: Document: Date Filed: 02/01/2010 Page: 18 SUMMARY OF ARGUMENTS The District Court properly dismissed this case due to lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Stewart challenges the Comanche Nation Gaming Commission's regulatory decision to revoke his gaming license under the authority of the Comanche Nation Gaming Ordinance. Specifically, the Indian Gaming Regulatory Act, 25 U.S.C. 2710(d), 2710(b)(2)(F), expressly places regulatory authority for issuance and revocation of gaming licenses within the exclusive purview of the tribe within whose jurisdiction gaming is conducted. The Court properly found no diversity jurisdiction under 28 U.S.C and no federal-question jurisdiction pursuant to 28 U.S.C Stewart's argument that the U.S. Constitution and various federal civil rights laws protected his right to a tribal gaming license had no merit because such right does not arise under any federal law. Likewise, Stewart erroneously asserted that the Treaty of Medicine Lodge (Oct. 21, 1867) 15 Stat. 581, 1868 WL 10232, federal allotment acts, and the Citizenship Act of June 2, 1924, 8 U.S.C. 401(B), provided the District Court jurisdiction. STANDARD OF REVIEW Appellant Stewart failed to include the standard of review in his Opening Brief as required by Fed. R. App. P. 28(a)(9)(B). Appellee Tribal Defendants 11

19 Case: Document: Date Filed: 02/01/2010 Page: 19 accordingly provide this Standard of Review as authorized by Fed. R. App. P. 28(b)(5). This Court reviews de novo a district court's legal conclusions concerning dismissal under Fed. R. Civ. P. 12(b)(1). See E.F.W. v. St. Stephen's Indian High School, 264 F.3d 1297, 1303 (10th Cir. 2001). This Court applies the same standard employed by the District Court. Id. at A party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. Id. The Court has wide discretion to allow affidavits and other documents to resolve disputed jurisdictional facts. See Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003). However, appellate courts examine jurisdictional findings of fact only for clear error on the part of the district court. Id. This Court reviews de novo a district court's dismissal under F.R.Civ.P 12(b)(6). See Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). Well-pleaded facts in the Complaint, if any, are considered as true and the Court determines whether they establish a plausible, facial claim for relief; however, conclusory allegations are not considered. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). 12

20 Case: Document: Date Filed: 02/01/2010 Page: 20 ARGUMENTS AND AUTHORITIES I. There is no subject-matter jurisdiction over a dispute arising from the revocation of a gaming license issued by an Indian Tribe. The District Court correctly determined that this case centers on the revocation of Stewart's Comanche Nation gaming license, which is a matter outside the purview of the federal courts. "Federal courts are courts of limited jurisdiction and they may exercise jurisdiction only when specifically authorized to do so." Sac and Fox Nation of Missouri v. La Facer, 979 F. Supp. 1350, 1352 (D.C. Kan (internal citation omitted). "The party seeking to invoke a federal court's jurisdiction sustains the burden of establishing that such jurisdiction is proper." Id. In order for this Court to have federal question jurisdiction (28 U.S.C. 1331) "[a] right or immunity created by the laws of the United States must be an essential element of the plaintiff's cause of action." Martinez v. Southern Ute Tribe, 273 F.2d 731, 734 (10th Cir. 1960) (internal citations and notes omitted) (emphasis added). Congress has not authorized federal courts to exercise jurisdiction over the essential matter(s) raised by this suit. Instead, as the District Court correctly concluded, Congress squarely placed the issuance and revocation of tribal gaming licenses within the exclusive province of Indian tribes. (Order p. 6, Dkt. No. 46). 13

21 Case: Document: Date Filed: 02/01/2010 Page: 21 A. There is no subject-matter jurisdiction under federal gaming law. Pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C et seq., Congress provided "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments" [and]... the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences...." Id. at 2702(1)-(2) (emphasis added). "Indian tribes have the exclusive right to regulate gaming activity on Indian land...." Id. at 2701(5). "Nothing in [IGRA] precludes an Indian tribe from exercising regulatory authority provided under tribal law over a gaming establishment within the Indian tribe's jurisdiction.... " Id. at 2713(d) (emphasis added), codifying California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (holding that Indian tribes have inherent authority to regulate gaming within their jurisdiction). Because the issuance, regulation, and revocation of a Comanche Nation gaming license arises under Comanche Nation law and falls within the exclusive province of the Gaming Commission, Stewart suffered no deprivation of a federal right as result of the revocation of his tribal gaming license. For the same reason, Stewart's cause of action did not depend on the construction of a federal statute or the resolution of a substantial question of federal law. Thus, the District Court properly determined it 14

22 Case: Document: Date Filed: 02/01/2010 Page: 22 lacked subject-matter jurisdiction over the instant dispute and this Court should affirm such determination. B. There is no subject-matter jurisdiction under federal equal employment opportunity law. Stewart was employed by Comanche Nation gaming enterprises and claimed discriminatory treatment because he was non-indian. In the employment context, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e (as amended), specifically excludes Indian tribes from the definition of "employer." See Wardle v. Ute Indian Tribe, 623 F.2d 670, 672 (10th Cir. 1980) (quoting 42 U.S.C. 2000e (b)(1), "[t]he term 'employer'... does not include... an Indian tribe."); see also Hartman v. Golden Eagle Casino, 243 F. Supp. 2d 1200, 1203 (D. Kan. 2003) (denying application of Title VII to a former employee of an Indian tribal casino based on the expressed tribal exemption in 42 U.S.C. 2000e (b)). Hence, no subject-matter jurisdiction arises under Title VII based on the jurisdictional facts of this case and affirmance is warranted. C. There is no subject-matter jurisdiction where Comanche Nation's immunity extends to Tribal Defendants. The District Court properly found it lacked subject-matter jurisdiction over Stewart's claims against individual Tribal Defendants in their official capacities because of the sovereign immunity of the Comanche Nation. (Order p. 7, Dkt. No. 46). Stewart may not evade Comanche Nation's immunity by merely naming 15

23 Case: Document: Date Filed: 02/01/2010 Page: 23 Tribal Defendants in an individual capacity where the real party-in-interest is the Comanche Nation. See Native American Distributing v. Seneca-Cayuga Tobacco, Co., 546 F.3d 1288, (10th Cir (observing that tribal immunity may not be evaded by suing tribal officers in an individual capacity). This "real partyin-interest" determination "turns on the relief sought by the plaintiffs." Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir. 2001). "[T]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). Stewart sought "to be made whole and afforded damages." (Complaint p. 13, Dkt. No. 1). As part of making Stewart whole, the Court would be required to order the Commission to reverse its findings that Stewart posed a threat to the Comanche Nation and reinstate Stewart's gaming license, and, as such, would coerce sovereign action of the Comanche Nation. Sovereign immunity of the Comanche Nation shields Tribal Defendants from being used as a pleading device for Stewart to invoke the jurisdiction of the Court and achieve such result. Thus, the District Court's dismissal should be affirmed. II. Dismissal of Tribal Defendants is proper where Stewart failed to make a plausible claim for relief. The issuance and revocation of a tribal gaming license under Comanche Nation law hampers Stewart in stating a claim for relief against Tribal Defendants 16

24 Case: Document: Date Filed: 02/01/2010 Page: 24 under any of the federal civil rights laws which protect rights created under federal law. The District Court properly disregarded any matter outside of Stewart's Complaint in its determination to dismiss Tribal Defendants (in their individual capacities) for failure to state a claim for which relief could be granted. In considering a Rule 12(b)(6) motion to dismiss, the Tenth Circuit requires a plaintiff to frame a complaint with enough factual matter to suggest he is entitled to relief. See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). Plaintiff's complaint must contain sufficient well-stated factual allegations that, if presumed true, would plausibly (not just speculatively) support a claim against Tribal Defendants. See Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Naked assertions devoid of further factual enhancement do not suffice. See Id. Stewart named only two (2) defendants, Coffey and Wauqua, in the body of the Complaint and did not connect any of the Tribal Defendants to his alleged injury. The District Court construed Stewart's well-pleaded factual allegations liberally, as distinguished from his conclusory assertions (see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)) and correctly found that Stewart's Complaint failed to articulate the roles of each of the Tribal Defendants in the 17

25 Case: Document: Date Filed: 02/01/2010 Page: 25 events giving rise to the lawsuit and the grounds upon which his claim for relief rested. Accordingly, this Court should affirm the District Court's decision to dismiss the Tribal Defendants. A. There is no plausible claim under 42 U.S.C. 1982, 1983, or 1985(3) or under Bivens. Specifically, the Complaint contained no allegations that any Tribal Defendant was either a state actor or a federal agent, or was acting under color of state law or federal law. Absent these facts, Stewart did not state a plausible claim under 42 U.S.C (see American Manufacturers Mut. Ins. Co. v. Sullivan, 457 U.S. 40, (1999)) or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)( see, e.g., Romero v. Peterson, 930 F.2d 1502, 1506 (10 th Cir. 1991)). The Complaint contained no specific allegations that any of the Tribal Defendants' actions were the result of any racial or class-based discrimination. Absent these facts, the Court could not discern a plausible claim under 42 U.S.C (see Shaare Tefila Congregation v. Cobb, 482 U.S. 615, 617 (1987)) or 42 U.S.C. 1985(3) (see Griffin v. Breckinridge, 403 U.S. 88, 102 (1971)). Accordingly, this Court should uphold the District Court's determination. B. There is no private right of action in federal court under Indianspecific federal laws. The District Court properly found that Stewart had no private cause of action to remedy a violation of the Indian Civil Rights Act ("ICRA"), 25 U.S.C

26 Case: Document: Date Filed: 02/01/2010 Page: 26 et seq. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, (1978). "[T]he structure of the statutory scheme and the legislative history of [25 U.S.C. 1302] suggest that Congress' failure to provide remedies other than habeas corpus was a deliberate one." Id. at 61. The establishment of a federal cause of action for the enforcement of rights under the ICRA "plainly would be at odds with the congressional goal of protecting tribal self-government." Id. at 64. Indeed, the same could be said about the lack of a private cause of action in the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C et seq., given its congressional objective of fostering stronger tribal governments. Correspondingly, the District Court followed Tenth Circuit precedent in determining that IGRA also contains no provision for private cause of action in federal court under the circumstances of this case. See Hartman v. Kickapoo Tribe Gaming Commission, 319 F.3d 1230 (10th Cir. 2003) (finding no private of action for suspension of tribal gaming license of card dealer). Thus, affirmance is appropriate. III. Other federal laws do not grant the court jurisdiction or provide Stewart a claim A. The Treaty of Medicine Lodge provides no claim and Lone Wolf does not provide jurisdiction. Stewart's explanation of the history and alleged effect of the Treaty of Medicine Lodge and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) does not create federal jurisdiction or provide any basis for a claim. The case of Lone Wolf 19

27 Case: Document: Date Filed: 02/01/2010 Page: 27 challenged allotment of land on the Kiowa, Comanche, and Apache Reservation (surrounding Lawton, Oklahoma) in derogation of Article 12 of the Treaty of Medicine Lodge. Lone Wolf announced that the unilateral abrogation by Congress of an Indian treaty provision originated from its plenary authority over Indian affairs. However, the exercise of such plenary authority in that specific instance (or the continued potentiality of doing so in other circumstances) does not mean that Congress had usurped all authority of Indian tribes to govern themselves and their territory. See Santa Clara Pueblo v. Martinez, 436 U.S. at 55 (specifically rebuffing similar plenary-authority arguments for the support of federal court jurisdiction under the ICRA). It is a fundamental principle of federal Indian law that Indian tribes still possess "inherent powers of a limited sovereignty which has never been extinguished" by Congress. United States v. Wheeler, 435 U.S. 313, 322 (1978). The Supreme Court "has consistently recognized that Indian tribes retain 'attributes of sovereignty over both their members and their territory.'" California v. Cabazon Band of Mission Indians, 480 U.S. at 207 (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)). And, "[i]n addition to broad authority over intramural matters such as membership, tribes retain sovereign authority to regulate economic activity within their own territory." N.L.R.B. v. San Juan Pueblo, 276 F.3d 1186, (10th Cir. 2002). 20

28 Case: Document: Date Filed: 02/01/2010 Page: 28 The "bad men" provisions of the Treaty of Medicine Lodge do not create a cause of action for Stewart (a non-indian) against the Comanche Nation or Tribal Defendants. Stewart argues that Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987) (construing an identical Navajo treaty provision as found in Article I of the Treaty of Medicine Lodge) creates a cause of action for him. On the contrary, such provisions merely created a mechanism for Indians wronged by "bad men among the whites" and for others wronged by "bad men among the Indians" to recover damages only from the United States. Id. at 396. While Tsosie acknowledged the clause for recovery by Indians for depredations by non-indians was still valid law, it also stated a similar clause for depredations by Indians was not. Id. at The Indian Depredations Act of 1891 states, "That no suit or proceeding shall be allowed under this act for any depredation which shall be committed after the passage thereof." 51 Cong. Ch. 538, 26 Stat. 851, (Mar. 3, 1891) (emphasis added). While acknowledging the Act's preemption, Tsosie further declared the "bad men among Indians [treaty] provisions" were obsolete from the beginning due to a lack of implementation of the provisions. Id. at 398, (citing Brown v. United States, 32 Ct. Cl. 432 (1897)). Hence, under the circumstances of this case, the Treaty of Medicine Lodge did not provide Stewart with a claim against Tribal Defendants. 21

29 Case: Document: Date Filed: 02/01/2010 Page: 29 Stewart argued that federal court protection of vested rights in Indian allotments flowing from the Treaty of Medicine Lodge and federal allotment laws (25 U.S.C. 334, 336, ) creates jurisdiction or provides a claim in this case (Complaint pp. 3 8, Dkt. No. 1). Stewart claimed his Indian heritage is Cherokee (not Comanche) and he was appearing as an American citizen (Complaint pp , Dkt. No. 1). Stewart did not claim to be a title-holder of an Indian allotment and could not claim any protections under such laws. Stewart did not establish he was a beneficiary of any Medicine Lodge Treaty provision or the federal allotment laws. B. The Citizenship Act does not confer jurisdiction or provide Stewart a claim. Stewart argued the Citizenship Act of June 2, 1924, 8 U.S.C. 401(B) confers federal court jurisdiction over the present case (Complaint pp. 3, 4, 6, Dkt. No. 1). This law established citizenship for Indians who had not already been granted citizenship through other specific laws and was not intended to create federal court jurisdiction by itself or in the context of internal tribal matters. 4 4 Instead, it was intended to lessen the controversy among Indians by separating United States citizenship from questions of tribal citizenship and cultural assimilation, following a period in which United States citizenship for Indians had been "conditioned on the severing of tribal ties, renouncing tribal citizenship, and the removal of federal protection." Cohen's Federal Indian Law (Nell Jessup Newton, et al. eds (2005 ed.) [3]. Thus, the Citizenship Act did not enlarge federal jurisdiction, nor diminish tribal sovereignty or jurisdiction. See, e.g., Tom v. Sutton, 533 F.2d 1101, 1103, n.1 (9th Cir. 1976). 22

30 Case: Document: Date Filed: 02/01/2010 Page: 30 Stewart claimed to be a citizen of the United States of Cherokee decent. (Complaint at p , Dkt. No. 1) However, as discussed above, the application of the various federal civil rights laws does not rest solely on the citizenship or tribal member classification of Stewart. United States citizenship, standing alone, does not guarantee a person the right to invoke the jurisdiction of federal courts or create a claim. Federal court jurisdiction and claims must be based on proper, specific circumstances and, most importantly in the context of civil rights, is connected to which sovereign created the right or privilege. C. The Supreme Court's decision in Trapp v. Choate does not provide Stewart with a claim. Stewart claims rights protected by the Fifth Amendment via the Supreme Court decision in Choate v. Trapp, 224 U.S. 665 (1912). This decision does not declare that the Constitution applies to Indian tribes. In Choate, individuals from the Choctaw and Chickasaw Tribes were challenging an Oklahoma tax on their Indian allotments because federal allotment law expressly stated all such land "shall be nontaxable while the title remains in the original allottee." Id. at 669. The State of Oklahoma argued that a subsequent treaty had removed this exemption. The Supreme Court determined that Congress' plenary power over Indians did not include the authority to abrogate an individual Indian's personal property rights secured by prior law or contract because the Fifth Amendment's takings clause protected such individual rights. Id. at This decision 23

31 Case: Document: Date Filed: 02/01/2010 Page: 31 simply affirms protection of an individual Indian's rights under the U.S. Constitution as it applies to actions by the federal and state governments. Again, Stewart did not allege he was a title-holder of an Indian allotment or that a state or federal actor was impinging a related property right. D. Stewart's Seventh Amendment right to jury trial was not improperly denied. Stewart argues that dismissal without a trial improperly denied him a right to trial by jury protected by the Seventh Amendment to the U.S. Constitution. Dismissal for failure to state a claim does not violate one's right to jury trial. See Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997) (holding that a Rule 12(b)(6) dismissal is a determination that there are no facts to be tried by a jury). Federal courts' authority to determine the merits of jurisdictional challenges and the authority to hear Rule 12(b)(1) motions lies in the inherent power of a court to regulate actions pending before it. "The district court, not a jury, must weigh the merits of what is presented on a Rule 12(b)(1) motion to dismiss, including resolving any issues of fact, and decide the question of subject matter jurisdiction." Wright & Miller, 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure 1350 (case citations omitted); see also, Gilbert v. David, 235 U.S. 561 (1915). It is fundamental without subject-matter jurisdiction, a court cannot lawfully empanel a jury for trial. Accordingly, this Court should affirm the District Court's dismissals. 24

32 Case: Document: Date Filed: 02/01/2010 Page: 32 E. The Appellate Court should not consider issues or arguments that were not raised in the Complaint or presented to the District Court. To the extent that Stewart raises new issues on this appeal or requests consideration of matters beyond his Complaint, this Court should follow the general rule and deem those waived. See Tele-Communications, Inc. v. Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997) (observing that the appellate court should not be considered a "second-shot forum"). "Thus, an issue must be presented to, considered and decided by the trial court before it can be raised on appeal." Id. at CONCLUSION Stewart failed to establish subject-matter jurisdiction in this case. There is no federal law that provides the Court jurisdiction over the claims alleged by Stewart. His claim to a right to a gaming license arises under tribal law, not federal law. His claim of dissatisfaction with tribal due process and allegation of a deprivation of equal protection cannot be heard in this forum under the Indian Civil Rights Act, or any other federal civil rights laws. Thus, the District Court's dismissal of the case for lack of subject-matter jurisdiction was in accordance with the law, and should be affirmed. Stewart failed to state a claim for which relief could be granted. Any wellpleaded facts in the Complaint, even when liberally construed, make no plausible, 25

33 Case: Document: Date Filed: 02/01/2010 Page: 33 facial claim for relief under any of the many federal laws invoked by Stewart. Accordingly, the District Court's dismissal of Tribal Defendants was in accordance with the law, and should be affirmed. Respectfully submitted this 1st day of February HOBBS, STRAUS, DEAN & WALKER, LLP /s/james M. Burson James M. Burson, OBA No Klint A. Cowan, OBA No William R. Norman, OBA No Park Avenue, Second Floor Oklahoma City, OK Telephone: (405) Facsimile: (405) ATTORNEYS FOR APPELLEES TRIBAL DEFENDANTS 26

34 Case: Document: Date Filed: 02/01/2010 Page: 34 CERTIFICATE OF COMPLIANCE WITH RULE 31.3 Appellees in the case below fell into two (2) separate groups. One group was identified as Tribal Defendants, which included every defendant except John Harrington. Each group had differing interests and issues, and each was represented by separate counsel. Tribal Defendants moved for dismissal separately from Mr. Harrington and the Court issued separate orders. Thus, separate briefing is necessary. /s/james M. Burson Attorney for Tribal Defendant Appellees Section 1. Word count CERTIFICATE OF COMPLIANCE WITH RULE 32 As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionally spaced and contains 5,502 words. I relied on my word processor to obtain the count and it is Microsoft Word. Section 2. Line count My brief was prepared in a monospaced typeface and contains 535 lines of text. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. /s/james M. Burson Attorney for Tribal Defendants Appellees 27

35 Case: Document: Date Filed: 02/01/2010 Page: 35 CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that a copy of the foregoing Answer Brief of Appellees Tribal Defendants, as submitted in Digital Form, is an exact copy of the written document filed with the Clerk and has been scanned for viruses with the Symantec Endpoint Protection Enterprise, Version and, according to the program, is free of viruses. /s/james M. Burson Attorney for Tribal Defendants Appellees ECF CERTIFICATE Pursuant to General Order 95-01, I certify that, (1) all required privacy redactions have been made; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; and (3) the ECF submission of this documents was scanned for viruses with the most recent version of a commercial virus scanning program: Symantec Endpoint Protection Enterprise, Version , licensed by Symantec, which is the most current version of such program and is updated hourly, and, according to the program, is free of viruses. /s/james M. Burson Attorney for Tribal Defendants Appellees 28

36 Case: Document: Date Filed: 02/01/2010 Page: 36 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of February 2010, a true and correct copy of this Answer Brief was deposited in the United States mail, postage prepaid, to the following: Thomas H. Stewart, Pro Se 147 NE Resort CR. Elgin, OK I hereby certify that a true copy of this Notice was electronically transmitted to the Clerk of the Appeals Court using the ECF System for filing, this date, 1st day of February Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants: D. Michael McBride III,OBA # Susan E. Huntsman, OBA # Of the Firm CROWE & DUNLEVY A Professional Corporation 500 Kennedy Building 321 South Boston Avenue Tulsa, OK (918) (918) (Facsimile) /s/james M. Burson Attorney for Tribal Defendants Appellees 29