Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ) ) ) ) ) ) ) ) ) )

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1 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ANTONIO GONZALEZ, Plaintiff, v. 7TH STREET CASINO, Defendant. Case No. 09-CV-2674-CM-DWJ DEFENDANT S MOTION TO DISMISS, OR ALTERNATIVE MOTION FOR SUMMARY JUDGMENT, AND BRIEF IN SUPPORT Defendant 7th Street Casino submits this motion to dismiss or alternative motion for summary judgment pursuant to Federal Rules of Civil Procedure 12(b(1, 12(b(6 and 56(c, and D. Kan. Rules 7.1 and Plaintiff has failed to state a claim upon which relief may be granted. In addition, this Court lacks subject matter jurisdiction over the instant action. 7th Street Casino is entitled to dismissal, or alternatively summary judgment, as a matter of law. INTRODUCTION Plaintiff Antonio Gonzalez alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., for discrimination and retaliation on the basis of national origin and age. As demonstrated herein, this action must either be dismissed in its entirety, or alternatively, judgment granted to 7th Street Casino, on each of the following grounds: (1 the express statutory exemption for Indian tribes found in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b(1, (2 controlling common law exempting Indian tribes from the prohibitions of the ADEA, see EEOC v. Cherokee Nation, 871 F.2d 937, (10th Cir. 1989, and (3 the

2 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 2 of 17 doctrine of tribal sovereign immunity, Native American Distributing, et al. v. Seneca-Cayuga Tobacco Co., et al., 546 F.3d 1288 (10th Cir STATEMENT OF MATERIAL FACTS 1. The Wyandotte Tribe of Oklahoma is a federally-recognized Indian Tribe, organized pursuant to the Oklahoma Indian Welfare Act of 1936, 25 U.S.C. 501 (49 Stat (Affidavit of Kelly Carpino, attached hereto as Exhibit A, 2, 3 and 4, Exhibit 1 thereto at Preamble and Exhibit 2 thereto at Preamble. 2. On October 30, 1937, the Wyandotte Tribe of Oklahoma ratified its Corporate Charter. (Ex. A, 3 and Exhibit 1. By its terms, the 1937 Corporate Charter grants to the Wyandotte Tribe of Oklahoma the corporate power [t]o sue and be sued. (Ex. A, 3 and Exhibit 1, Section 3(b. 3. On September 29, 1999, the Wyandotte Tribe of Oklahoma ratified its Constitution. (Ex. A, 4 and Exhibit 2 thereto. The 1999 Constitution creates a Board of Directors, comprised of members of the Nation and having authority to exercise [a]ll inherent sovereign powers and authority of the Wyandotte Nation. (Ex. A, 4 and Exhibit 2, Article 7, Section 1. The Board is further authorized to act on behalf of the Wyandotte Nation and all actions of the Board of Directors shall be considered actions of the Nation. (Ex. A, 4 and Exhibit 2, Article 7, Section The Wyandotte Tribe of Oklahoma enacted the Wyandotte Gaming Ordinance, which was first approved by the National Indian Gaming Commission on June 29, (Ex. A, 5 and Exhibit 3 thereto. The Ordinance was most recently amended by the Tribe and 1 For a brief overview of the history of the Tribe s federal recognition, see Wyandotte Nation v. Nat l Indian Gaming Com n, 437 F. Supp. 2d 1193, 1197 (D. Kan

3 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 3 of 17 approved by the National Indian Gaming Commission on June 19, (Ex. A, 7 and Exhibit 5 thereto. 5. On or before November 19, 2007, the Wyandotte Nation Board of Directors enacted Resolution # and stated that: Pursuant to the authority vested in the Board of Directors by the Constitution of the Wyandotte Nation, particularly by Article 7, Section 2 thereof, and to the authority vested in the Board of Directors under the Gaming Ordinance approved, and of the authority of the Board of Directors to oversee, protect and preserve the assets and benefits of the Nation, together with its capacity and authority to conduct both governmental and business activities by and on behalf of the Nation, especially when the Nation s members derive direct benefit from such activities, the Board of Directors hereby creates as a governmental component and instrumentality of the Nation, the Wyandotte Gaming Enterprises, (hereinafter referred to as the W.G.E. and the Board of Directors does hereby authorize the W.G.E., on behalf of the Nation, but in the name of the W.G.E., to own, operate, acquire property, enter into contracts and employ personnel and do all other things necessary or desirable with respect to the Wyandotte Gaming Enterprises dba Seventh Street Casino Facilities. (Ex. A, 6 and Exhibit 4 thereto, Sec. 1(a. Resolution # grants the W.G.E. the power and authority to waive its right and the right of the Nation to exercise Tribal sovereign immunity, including the power and authority [t]o agree to sue and be sued. (Ex. A, 6 and Exhibit 4, Section 4(a(2(A(ii. 6. 7th Street Casino sits upon land held in trust by the federal government for the benefit of the Wyandotte Nation for gaming purposes. (Ex. A, 8; see also 67 FR On or about October 27, 2009, Gonzalez filed Charge of Discrimination No with the Equal Employment Opportunity Commission ( EEOC alleging discrimination based on national origin and age. (Compl., Dkt. No. 1, pp. 4, On December 10, 2009, the Kansas Human Rights Commission issued a written letter to Gonzalez indicating that it was unable to file [Gonzalez s] complaint because [t]he 3

4 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 4 of 17 complaint was received in this office beyond six (6 months since the last alleged date of incident. (Id. p On November 12, 2009, the EEOC issued its Dismissal and Notice of Rights regarding EEOC Charge No Gonzalez filed the instant action on December 30, 2009 alleging causes of action arising under Title VII and the ADEA for employment discrimination and retaliation on the basis of national origin and age. (Compl., Dkt. No. 1. Gonzalez expressly invokes jurisdiction under 42 U.S.C. 2000e-5. (Id. 4(c. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b authorizes this Court to dismiss a cause of action for lack of subject matter jurisdiction as well as failure to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b(1, (6. When reviewing a motion to dismiss filed pursuant to Rule 12(b(6, the Court must accept as true all well-pleaded factual allegations and view them in the light most favorable to the nonmoving party. Anderson v. Suiters, 499 F.3d 1228, 1232 (10th Cir If, after such review, the complaint does not contain enough facts to state a claim to relief that is plausible on its face, the complaint must be dismissed as a matter of law. Id. at 1232; Smith v. U.S., 561 F.3d 1090, 1098 (10th Cir A similar standard of review applies to motions to dismiss filed pursuant to Rule 12(b(1. Smith, 561 F.3d at To the extent this Court relies on affidavits and other evidentiary materials submitted by the parties to resolve disputed jurisdictional facts, this motion may be construed as a motion for summary judgment governed by Federal Rule 56(c. U.S. ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 717 (10th Cir Rule 56(c authorizes summary judgment when the pleadings, discovery materials and any affidavits show that there is not genuine issue as to any material fact and that the movant is entitled to judgment as a matter of 4

5 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 5 of 17 law. A factual dispute is material only if it might affect the outcome of the suit under governing law. See e.g., Lewis v. UFCW Local Two, 544 F. Supp. 2d 1252, 1254 (D. Kan The mere existence of some alleged factual dispute will not defeat a motion for summary judgment. Id. at ARGUMENTS AND AUTHORITIES Gonzalez has asserted claims for employment discrimination and retaliation arising under Title VII and the ADEA. (See generally Compl., Dkt. No. 1. Subject matter jurisdiction rests exclusively upon the federal question arising under these statutes. 28 U.S.C Gonzalez bears the burden of establishing jurisdiction. United States v. Bustillos, 31 F.3d 931, 933 (10th Cir As demonstrated herein, (1 Gonzalez has failed to state a claim upon which relief may be granted, and (2 this Court lacks subject matter jurisdiction over the claims asserted. As a result, this Court must either dismiss the Complaint in its entirety or, alternatively, grant summary judgment in favor of 7th Street Casino. FED. R. CIV. P. 12(b(1, (6, 56(c. 1. The Complaint must be dismissed pursuant to Federal Rule 12(b(6 because 7th Street Casino is expressly exempt from the prohibitions of Title VII. Title VII of the Civil Rights Act of 1964 applies only to employers. 42 U.S.C. 2000e-2(a. The statute expressly excludes Indian tribes from the definition of employer, thereby exempting Indian tribes from the prohibitions of the Act. Id. 2000e(b(1 (providing that the term employer does not include an Indian tribe. In Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006, the Supreme Court held that the threshold number of employees for application of Title VII is an element of a plaintiff s claim for relief, not a jurisdictional issue. Id. at As such, [W]hen Congress does not rank a statutory limitation on coverage as 2 Prior to the decision in Arbaugh, the Tenth Circuit held that that the defendant must meet the statutory definition of employer in order for there to be jurisdiction [under Title VII]. See e.g., Lewis v. Four B Corp., No , 211 Fed. Appx. 663, 665, 2005 WL , at * 5

6 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 6 of 17 jurisdictional, courts should treat the restriction as nonjurisdictional in character. Id. As a result, a challenge based upon failure to satisfy statutory prerequisites for a claim arising under Title VII is properly submitted as a motion to dismiss for failure to state a claim under Federal Rule 12(b(6. Id. The Tenth Circuit has extended this analysis to challenges involving other Title VII definitions. See Xie v. Univ. of Utah, 243 Fed Appx. 367, 371 (10th Cir (finding no indication that Congress considered the statutory definition of employer, 42 U.S.C. 2000e(f, to be jurisdictional in nature. Gonzalez has failed to state a claim cognizable under Title VII. The law in this Circuit is clear: the prohibitions of Title VII do not apply to tribal casinos owned and operated by tribes or tribally-controlled business entities. See Curtis v. Sandia Casino, No , 67 Fed. Appx. 576, 2003 WL , at * 1 (10th Cir. June 17, In Curtis, the Tenth Circuit considered various federal employment discrimination claims asserted against a casino owned and operated by a federally-recognized tribe, including claims arising under Title VII. Id. at 577. The Tenth Circuit held plaintiff s Title VII claim fails because Title VII precludes jurisdiction over employment discrimination claims against Indian tribes. Id. (citing Duke v. Absentee Shawnee Tribe of Okla. Housing Auth., 199 F.3d 1123, 1126 (10th Cir (finding that because Title VII expressly exempts Indian tribes, the statute does not create a cause of action against the [tribal] housing authority so as to invoke the court s jurisdiction. Inherent in the Court s analysis is the conclusion that tribally-owned and operated casinos are also exempt from the prohibitions of Title VII. 42 U.S.C. 2000e(b(1. This Court has had numerous occasions to consider its own jurisdiction with respect to federal employment discrimination claims asserted against tribally-owned and operated casinos. 2 (10th Cir. Aug. 11, 2005 (citing Ferroni v. Teamsters, Chauffeurs and Warehousemen Local No. 222, 297 F.3d 1146, 1151 (10th Cir (emphasis added. 6

7 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 7 of 17 Hartman v. Gold Eagle Casino, Inc., 243 F. Supp. 2d 1200, (D. Kan. 2003; Tenney v. Iowa Tribe of Kansas, 243 F. Supp. 2d 1196, 1198 (D. Kan. 2003; Tenney v. Iowa Tribe of Kansas, No , 2003 WL , at * 1 (D. Kan. Apr. 14, In each instance, this Court properly found it lacked jurisdiction over the claims asserted. In Hartman v. Gold Eagle Casino, this Court determined it did not have jurisdiction over claims of race, sex and national origin discrimination arising under Title VII and asserted against a casino owned and operated by a federally-recognized tribe. 243 F. Supp. 2d at The Court first noted that Title VII does not allow private employment discrimination claims against Indian tribes because it specifically exempts Indian tribes from the definition of employer. Id. at It then considered the plaintiffs argument that the exemption from Title VII applies only to purely internal matters related to the tribe s self-governance, and that Title VII therefore applied to the casino as an economic enterprise or commercial activity of the Tribe. Id. The Court squarely rejected that argument: The court has found no support for this distinction in the legislative history of Title VII or the case law interpreting it. The exclusion of Indian Tribes from the definition of employer has been applied to economic entities of Indian Tribes. See, e.g., Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123, 1125 (10th Cir (housing authority designed to further Tribe s economic interest was deemed tribe under Title VII even though created as state agency under Oklahoma law rather than by tribal ordinance; see also Thomas v. Choctaw Management/Services Enterprise, 313 F.3d 910, 2002 WL (5th Cir (unincorporated business venture owned 100% by Tribe is an Indian Tribe expressly exempted from being employer under Title VII. Id. See also Johnson v. Choctaw Management/Services Enterprise, No , 149 Fed. Appx. 800, 803, 2004 WL , at * 2 (10th Cir. Sept. 20, 2005 (finding that Title VII does not apply to business enterprise owned 100% by, and legally inseparable from, the tribe; Ferguson v. SMSC Gaming Enterprise, 475 F. Supp. 2d 929, 930 (D. Minn (barring Title VII claims against federally-recognized Indian tribes and their agencies and businesses, 7

8 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 8 of 17 including casinos owned and operated by tribe. The Hartman Court ultimately granted the tribe s motion to dismiss for lack of jurisdiction. 243 F. Supp. 2d at In Tenney v. Iowa Tribe of Kansas, this Court again applied the statutory exemption to tribal corporations and other tribally-owned and operated economic entities. 243 F. Supp. 2d at The plaintiff asserted various employment discrimination claims, including claims arising under Title VII, against a casino owned by a federally-recognized tribe and operated by its tribal gaming commission. Id. at The Court first recognized the statutory exclusion of Indian tribes from the definition of employer under Title VII. Id. at It then extended the exclusion to the tribal gaming commission, noting that the commission included tribal members and had sole responsibility for the operation of the Casino to the benefit of the Tribe. Id. This Court reaffirmed its decision in 2003, on the grounds that Title VII did not provide jurisdictional [basis] in federal court for the plaintiff s claims against the defendants. Tenney v. Iowa Tribe of Kansas, No , 2003 WL , at * 1. 7th Street Casino is analogous to the tribal entities considered in Hartman and Tenney. 7th Street Casino is wholly owned by the Wyandotte Tribe of Oklahoma, a federally-recognized tribe, and sits upon land held in trust by the federal government on behalf of the Wyandotte Tribe for gaming purposes. (Ex. A, 2, 6, 8 and Exhibit 4, Section 1(a. Pursuant to the Tribe s 1999 Constitution, the Board of Directors is authorized to transact business, and otherwise speak or act on behalf of the Nation in all matters on which the Nation is empowered to Act. (Ex. A, 4 and Exhibit 2 at Art. 7, Sec. 2. By enactment of Resolution # , the Board of Directors created, as a government component and instrumentality of the Nation, the Wyandotte Gaming Enterprises, d/b/a 7th Street Casino. (Ex. A, 6 and Exhibit 4 at Sec. 1(a. The purpose of the 7th Street Casino, as set forth in that Resolution, is to generate revenue and 8

9 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 9 of 17 make monthly disbursements to the Nation of the profits realized by the [Wyandotte Gaming Enterprises] from its operations. (Id. at Sec. 16(a. Significantly, this Court has recently held that 7th Street Casino is expressly exempt from the prohibitions of Title VII. (Order, Beecham v. 7th Street Casino, No JWL (D. Kan. Dec. 4, 2009, attached hereto as Exhibit B. In Beecham, plaintiff filed suit alleging violations of Title VII. Relying upon those cases cited above, the District Court concluded that the 7th Street Casino, under Tenth Circuit case law, qualifies as an Indian tribe for purposes of Title VII s exemption such that it is exempt from Title VII. (Id. p. 4. As a result, the Court granted summary judgment to 7th Street Casino. (Id. p. 5. The material facts regarding the creation, ownership and operation of the 7th Street Casino cannot be disputed. Gonzalez has failed to state a cognizable claim under Title VII. 7th Street Casino respectfully requests that this Court dismiss his Title VII claims or alternatively grant summary judgment to 7th Street Casino. FED. R. CIV. P. 12(b(6, 56(c The Complaint must be dismissed pursuant to Federal Rule 12(b(6 because 7th Street Casino is exempt from the prohibitions of the ADEA. The prohibitions against discrimination on the basis of age set forth in the ADEA similarly apply only to employers. 29 U.S.C. 623(a. Unlike Title VII, however, the ADEA is silent with respect to whether it applies to Indian tribes. Id. 630(b. 4 The Tenth Circuit has, 3 Gonzalez has similarly failed to state a cognizable claim regarding harassment and/or hostile work environment under Title VII. (See Compl., Doc. No The ADEA defines employer as a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. Id. 630(b. 9

10 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 10 of 17 however, held that the ADEA does not apply to Indian tribes. EEOC v. Cherokee Nation, 871 F.2d 937, (10th Cir In Cherokee Nation, the Tenth Circuit considered whether a federally-recognized Indian tribe must comply with a subpoena issued by the EEOC in connection with its investigation into potential violations of the ADEA. Id. at The Court first noted that the ADEA neither expressly includes nor excludes Indian tribes from coverage. Id. at 939 n.4. It then referenced its decision in Donovan v. Navajo Forest Products Indus., 692 F.2d 709, 712 (10th Cir. 1982, in which it held that the Occupational Safety and Health Act ( OSHA did not apply to a tribal business enterprise because, inter alia, enforcement would dilute the principles of tribal sovereignty and self-government recognized in the treaty. 6 Id. at 939. The Wyandotte Nation has retained its right of self-government throughout a history of treaties with the federal government and public laws enacted by the federal government. Pursuant to the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967, as reconfirmed by the Act of May 15, 1978 (92 Stat. 246, the Wyandotte Nation maintains the right to organize for its common welfare and to adopt a constitution and bylaws. See 49 Stat. 1967, Sec. 3. Application of the ADEA to the Wyandotte Nation would similarly erode principles of tribal sovereignty and self-governance. 5 This Court has contemplated application of Arbaugh to claims involving challenges based upon the definitions to the ADEA. See Hamilton v. Brad Sys., Inc., No , 2006 WL , at * 2-3 (D. Kan. Apr. 27, 2006 (contemplating application of Arbaugh to the numerosity provision of the ADEA. Numerous federal courts have similarly found that ADEA statutory definitions are not jurisdictional. See e.g., Allen v. Highlands Hosp. Corp., 545 F.3d 387, (6th Cir (finding administrative exhaustion requirement under ADEA nonjurisdictional; Stanley v. RBO Custom Home Builders, LLC, No , 2006 WL , at * 2 (E.D. La. Nov. 20, 2006 (contemplating extension of Arbaugh analysis to ADA, ADEA; Wrobbel v. Int l Bhd. of Elec. Workers, Local 17, 638 F. Supp. 2d 780, 791 (E.D. Mich (finding administrative exhaustion requirement of ADEA nonjurisdictional. As a result, Gonzalez s ADEA claims are subject to dismissal under Federal Rule 12(b(6. 6 Like the ADEA, the OSHA did not expressly exclude Indian tribes from the definition of employer. See 15 U.S.C. 652(5. 10

11 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 11 of 17 Finally, the Cherokee Nation Court rejected the district court s application of normal rules of statutory construction to determine whether Congress intended the ADEA to apply to Indian tribes. 871 F.2d at 939. The Tenth Circuit stated that: We believe that unequivocal Supreme Court precedent dictates that in cases where ambiguity exists (such as that posed by the ADEA s silence with respect to Indians, and there is no clear indication of congressional intent to abrogate Indian sovereignty rights (as manifested, e.g., by the legislative history, or the existence of a comprehensive statutory plan, the court is to apply the special canons of construction to the benefit of Indian interests. Cf. Merrion v. Hicarrilla Apache Tribe, 455 U.S. 130, n. 11 (1982 ( Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence [in the Tribe s Constitution] is that the sovereign power to tax remains intact. Id. (Emphasis original. The Tenth Circuit has repeatedly reaffirmed this principal of statutory construction as regards application of general laws to Indian tribes. See e.g., Shivwits Band of Painte Indians v. Utah, 428 F.3d 966, 984 (10th Cir. 2005; N.L.R.B. v. Pueblo of San Juan, 280 F.3d 1285, 1278 (10th Cir. 2000; Duke, 199 F.3d at 1125; Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461 (10th Cir The Cherokee Nation Court ultimately held the ADEA did not apply to Indian tribes. 871 F.2d at 939. This remains the controlling law within the Tenth Circuit. See Curtis, 2003 WL , slip op. at * 2 (dismissing plaintiff s ADEA claim against a casino owned and operated by a federally-recognized tribe because the ADEA does not apply to Indian tribes. It has been expressly adopted by this Court. Johnson v. Harrah s Kansas Casino Corp., No , 2006 WL , slip op. at * 2 n.15 (D. Kan. Feb. 23, 2006 (unpublished (citing Cherokee Nation for the proposition that the ADEA does not apply to Indian entities. There exists no genuine dispute of any material fact relating to the creation, ownership and operation of the 7th Street Casino. Gonzalez has failed to state a cognizable claim under 11

12 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 12 of 17 Title VII. 7th Street Casino respectfully requests that this Court dismiss his ADEA claims, or alternatively grant summary judgment to 7th Street Casino. FED. R. CIV. P. 12(b(6, 56(c This Court lacks subject matter jurisdiction, as 7th Street Casino is immune from Plaintiff s claims under the doctrine of tribal sovereign immunity. In addition to the express statutory and common law exemptions discussed supra, 7th Street Casino is also immune from the claims asserted under the doctrine of tribal sovereign immunity. See e.g., Bales v. Chickasaw Nation Indus., 606 F. Supp. 2d 1299, (D.N.M (noting that the applicability of a statute to a tribe is a separate issue from the issue of tribal sovereign immunity. Although Congress has the power to abrogate tribal sovereign immunity by explicit legislation, Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998, Congress has not clearly abrogated tribal sovereign immunity in Title VII cases. Bales, 606 F. Supp. 2d at (citing Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1159 (9th Cir Tribal sovereign immunity is a matter of subject matter jurisdiction, and the plaintiffs bear the burden of establishing the court s jurisdiction by a preponderance of the evidence. Murphy v. Kickapoo Tribe of Okla., No , 2007 WL , at * 1 (W.D. Okla. Nov. 8, 2007 (internal citations omitted. In Native American Distributing, et al. v. Seneca-Cayuga Tobacco Co., et al., 546 F.3d 1288 (10th Cir. 2008, the Tenth Circuit considered whether a tribal entity engaged in commercial activities was entitled to tribal sovereign immunity. Id. at The Seneca- Cayuga tribal constitution created a Business Committee authorized to transact business or otherwise speak or act on behalf of the Seneca-Cayuga Tribe in all matters on which the Tribe is empowered to act. Id. at The Tribe s corporate charter granted the corporate entity the 7 Gonzalez has similarly failed to state a cognizable claim regarding harassment and/or hostile work environment under the ADEA. (See Compl., Doc. No

13 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 13 of 17 power to sue and be sued. Id. The Business Committee adopted a resolution creating an operative division of the [Seneca-Cayuga] Tribe, a Tribal enterprise to engage in the manufacture, sale and distribution of tobacco products. Id. at The resolution noted that the company was intended to provide revenue for the Tribe as well as employment opportunities. Id. at The Tenth Circuit first reaffirmed established principles of tribal sovereign immunity: Indian tribes are domestic dependent nations with sovereignty over their members and territories. E.F.W. v. St. Stephen s Indian High Sch., 264 F.3d 1297, 1304 (10th Cir As sovereign powers, federally-recognized Indian tribes possess immunity from suit in federal court. Berrey v. Asarco Inc., 439 F.3d 636, 643 (10th Cir. 2006; see also 25 C.F.R (describing effect of federal recognition for tribes. Tribal immunity extends to subdivisions of a tribe, and even bars suits arising from a tribe s commercial activities. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998 ( Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. ; see also Allen v. Gold Country Casino, 454 F.3d 1044, 1047 (9th Cir (holding that a casino that function[ed] as an arm of the Tribe enjoyed tribal immunity, cert. denied, 127 S. Ct (2007; Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 320 (10th Cir (holding that an inn which was a sub-entity of the Tribe rather than a separate corporate entity enjoyed tribal immunity. Id. at Under these principles, the Tenth Circuit had to determine whether the tobacco company operated as a division of the chartered tribal corporation or as a division of the Tribe itself. 8 If the former, the company would be found to have waived its sovereign immunity due to the sue and be sued provision in its corporate charter; if the latter, the company would be found immune from suit. Id. 8 The parties agreed that (1 Congress had not abrogated the sovereign immunity of either the Tribe or the tobacco company, and (2 the sue or be sued clause in the tribal corporate charter waived the company s sovereign immunity only with respect to the actions of the chartered tribal corporation. Id. at The Court did note that [w]hether a sue or be sued clause in a tribal charter actually functions as a waiver of sovereign immunity is arguable. Id. at 1293 n.2. 7th Street Casino does not admit that the sue or be sued clause in its corporate charter waives its tribal sovereign immunity, in either its corporate or constitutional capacity. 13

14 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 14 of 17 The Court determined this question of fact by the operative documents of the tobacco company. Id. at The resolution invoked the Business Committee s powers to act on Behalf of the Tribe under Article VI of the Constitution, which granted the Committee the power to transact business on behalf of the Tribe. Id. at (Emphasis added. The resolution itself declared that the tobacco company functioned as an economic development project to provide employment opportunities and revenue for the Tribe, and classified its activities as essential governmental functions of the Tribe. Id. at The Court affirmed the district court s interpretation of these documents as a declaration that the company would function as an operating division of the Tribe in its governmental capacity. Id. The Court ultimately concluded that the tobacco company was an enterprise of the Tribe itself, existing under the Tribe s constitution, and entitled to sovereign immunity from suit. Id. See also Nahno-Lopez v. Houser, 627 F. Supp. 2d 1269, 1282 (W.D. Okla (extending tribal sovereign immunity to tribal casino due to (1 plaintiff s concession that the casino operated as a tribal enterprise, (2 the lack of evidence that the casino was not an arm or subdivision of the tribe, and (3 the economic benefit of the casino inured the benefit of the tribe. Because the business committee was acting under the Tribe s constitution, the sue and be sued provision of the Tribe s corporate charter could not operate as a waiver of tribal sovereign immunity. Seneca- Cayuga, 546 F.3d at See also Murphy, 2007 WL , at * 1 (expressly noting the distinction between corporate and constitutional entities of the tribe, and finding that a consent to suit clause in the corporate charter does not affect the sovereign immunity of the Tribe as a constitutional entity (internal citations omitted. Like the Seneca-Cayuga Tribe, the Wyandotte Nation is a federally-recognized Indian tribe. (Ex. A, 2, 6 and Exhibit 4 at p. 1. Like the Seneca-Cayuga, the Wyandotte have enacted 14

15 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 15 of 17 both a corporate charter and a constitution. (Id The 1937 Wyandotte Corporate Charter provides that the Tribe has the power [t]o sue and be sued. (Id. 3, Exhibit 1 at Section 3(b. However, Wyandotte Gaming Enterprises d/b/a 7th Street Casino was created pursuant to the 1999 Constitution of the Wyandotte Tribe of Oklahoma. (Id. 6 and Exhibit 4. The Constitution creates a Board of Directors authorized to transact business and otherwise speak or act on behalf of the Nation. (Id. 4, Exhibit 2 at Art. VII, Sec. 2(a. Resolution # , which established the 7th Street Casino, was expressly adopted by the Board of Directors pursuant to Article 7, Section 2 of the Tribe s Constitution. (Id. 6, Exhibit 4 at p. 1. By the terms of that Resolution, the Wyandotte Board of Directors established the 7th Street Casino as a separate governmental component of the of the Nation, an instrumentality of the Nation, intended to earn revenue and disburse it to the Nation s members. (Id. 6, Exhibit 4 at Secs. 2(b, 16(a. Significantly, Resolution # bestows upon Wyandotte Gaming Enterprises d/b/a 7th Street Casino the [p]ower to waive sovereign immunity and Tribal waiver of sovereign immunity, including the power and authority [t]o agree to sue and be sued. (Id. at Sec. 4(a(2(A (emphasis original. Any waiver of sovereign immunity is discretionary and requires affirmative action in the form of an agreement to sue and be sued. There is no evidence that 7th Street Casino has agreed to waive the tribal sovereign immunity it possesses as a constitutional enterprise of the Wyandotte Tribe of Oklahoma. 7th Street Casino is therefore entitled to tribal sovereign immunity, and is immune from the claims asserted in this action. Seneca, at As a result, this Court lacks subject matter jurisdiction over Gonzalez s claims of discrimination and retaliation arising under Title VII and the ADEA. 7th Street Casino respectfully requests that 15

16 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 16 of 17 this Court dismiss this action in its entirety, or alternatively grant summary judgment to 7th Street Casino. FED. R. CIV. P. 12(b(1, 56(c. 9 CONCLUSION 7th Street Casino is expressly exempt from the prohibitions of Title VII of the Civil Rights Act of U.S.C. 2000e(2(a. Under controlling law, 7th Street Casino is exempt from the prohibitions of the Age Discrimination in Employment Act of U.S.C. 621 et seq. 7th Street Casino is a constitutional entity governed by the Wyandotte Nation under its 1999 Constitution. As such, 7th Street Casino is immune from the claims asserted under the doctrine of tribal sovereign immunity. Seneca-Cayuga, at For each of these reasons, this Court must dismiss this action in its entirety, or alternatively grant summary judgment to 7th Street Casino. Respectfully submitted, /s/ Hilary L. Velandia Kristen L. Brightmire, OBA No Courtney Bru, OBA No Hilary L. Velandia, Kansas Bar No DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P. 320 S. Boston, Suite 500 Tulsa, OK ( Telephone ( Facsimile kbrightmire@dsda.com cbru@dsda.com hvelandia@dsda.com Attorneys for Defendant 9 This Court similarly lacks jurisdiction over claims by Gonzalez for harassment and/or hostile work environment under Title VII or the ADEA. (See Compl., Doc. No

17 Case 2:09-cv CM-DJW Document 11 Filed 02/17/10 Page 17 of 17 CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the 17 day of February, 2010, the attached document was electronically transmitted to the Clerk of Court using the ECF System for filing and mailed to the following individual, who is not a registered participant of the ECF System: Antonio Gonzalez, pro se P.O. Box 6681 Kansas City, KS s/hilary L. Velandia Hilary L. Velandia 17