IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … · Donna Mercer, George R. “Ranny” McWatters, Jr., Larry Ramsey, Tamara Smiley-Reeves, Rodney Spriggs, Trenton R. Stand,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

STATE OF KANSAS, ex rel. Derek Schmidt, Attorney General, State of Kansas, and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CHEROKEE COUNTY, KANSAS,

Plaintiffs,

v.

NATIONAL INDIAN GAMING COMMISSION; et al.,

Defendants.

))))))))))))))

No. 15-cv-4857-DDC-KGS

REPLY OF QUAPAW TRIBAL GOVERNMENTAL PARTIES IN SUPPORT OF MOTION TO DISMISS

Stephen R. Ward, Okla. Bar No. 13610* Daniel E. Gomez, Okla. Bar No. 22153* R. Daniel Carter, Okla. Bar No. 30514* CONNER & WINTERS, LLP 4000 One Williams Center Tulsa, Oklahoma 74172-0148 Telephone: (918) 586-8978 Telecopier: (918) 586-8698

Paul M. Croker, Kans. Bar No. 21627 ARMSTRONG TEASDALE, LLP 2345 Grand Boulevard, Suite 1500 Kansas City, Missouri 64108 Telephone: (816) 221-3420 Telecopier: (816) 221-0786

Attorneys for Defendants, the Downstream Development Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), the Quapaw Casino Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), the Quapaw Tribal Development Corporation, T.C. Bear,

John L. Berrey, Barbara Kyser Collier, Art Cousatte, Thomas Crawfish Mathews, Donna Mercer, George R. “Ranny” McWatters, Jr., Larry Ramsey, Tamara

Smiley-Reeves, Rodney Spriggs, Trenton R. Stand, and Fran Wood

* Admitted pro hac vice.

July 20, 2015

Case 5:15-cv-04857-DDC-KGS Document 73 Filed 07/20/15 Page 1 of 28

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION & SUMMARY..................................................................................................1

ARGUMENT & AUTHORITIES ...................................................................................................2

I. THE STATE HAS IDENTIFIED NO WAIVER OR ABROGATION OF SOVEREIGN IMMUNITY UNDER EITHER FEDERAL OR TRIBAL LAW THAT PERMITS THE CLAIMS ASSERTED AGAINST THE TRIBAL PARTIES .............................................................................................................................2

II. LACKING A MERITORIOUS ALLEGATION OF A VIOLATION OF FEDERAL LAW, THE STATE CANNOT INVOKE THE DOCTRINE OF EX PARTE YOUNG ON THE BASIS OF THE CIVIL REMEDY OF ESTOPPEL ................5

A. The State Cannot Meet its Burden of Pleading a Plausible Ongoing Violation of Actual Federal Law .............................................................................6

B. The State’s Claims Are Nothing More than an Attempt to Prevent Class II Gaming on the Tribe’s Trust Land, Re-Characterized to Avoid the Jurisdictional Limitations Contained in IGRA ........................................................8

C. The State’s Broadly Pleaded Theory of Equitable Estoppel Is Not the Equivalent of a Violation of Federal Law for Purposes of the Ex parte Young Doctrine ......................................................................................................12

D. The Young Doctrine Cannot Be Applied in this Case, Because Only the Tribe—Not Individual Officers—Had and Has the Authority to Act With Respect to Gaming Matters ....................................................................................17

CONCLUSION ..............................................................................................................................19

CERTIFICATE OF SERVICE ...................................................................................................... vi

APPENDIX OF EXHIBITS ......................................................................................................... vii


ii

TABLE OF AUTHORITIES

Page(s)

Cases

American Surety Co. of New York v. Gold, 375 F.2d 523 (10th Cir. 1966) .................................14

ANR Pipeline Co. v. Lafaver, 150 F.3d 1178 (10th Cir. 1998) ........................................................8

Armstrong v. Exceptional Child Center, ___ U.S. ___, 135 S. Ct. 1378 (2015) ..........................11

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466 (1936) ..........................16

Barrett v. New Mexico University Board of Regents, 562 Fed. Appx. 692 (10th Cir. 2014) ........................................................................................................................................6, 17, 18

Breard v. Greene, 523 U.S. 371, 118 S. Ct. 1352 (1998) ..............................................................16

Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487 (10th Cir. 1998) .........................................................................................................................................6

C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 121 S. Ct. 1589 (2001) ......................................................................................................3

Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) ..............................................6

Credit Union Group Enterprises LLC v. Kansas Department of Credit Unions, 457 F. Supp. 2d 1235 (10th Cir. 2006) ................................................................................................3

Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011) .....................................13, 14

El-Ghori v. Grimes, 23 F. Supp. 2d 1259 (D. Kan. 1998) ............................................................17

Elephant Butte Irrigation District of New Mexico v. Department of the Interior, 160 F.3d 602 (10th Cir. 1998) ................................................................................................................12

Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908) ............................................................. passim

Fuller v. Davis, 594 Fed. Appx. 935 (10th Cir. 2014) ..................................................................16

Gaming Corporation v. Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996) ..............................10, 11

Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423 (1985) ..........................................................13, 14

Hawaii v. Gordon, 373 U.S. 57, 83 S. Ct. 1052 (1963) ................................................................18


iii

Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007) ..................................................................6, 7, 8, 11

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028 (1997) ...........................11

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971 (1986) .................................5

Jennings Water, Inc. v. City of North Vernon, 895 F.2d 311 (7th Cir. 1989) .........................14, 15

Johns v. Stewart, 57 F.3d 1544 (10th Cir. 1995) .......................................................................6, 13

K.P. v. LeBlanc, 729 F.3d 427 (5th Cir. 2013) ...............................................................................6

Kerr-McGee Corp. v. Farley, 115 F.3d 1498 (10th Cir. 1997) ......................................................5

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457 (1949) .............14

Marceua v. Blackfeet Housing Authority, 455 F.3d 974 (9th Cir. 2006) ....................................4, 5

Mclaughlin v. Board of Trustees of State Colleges of Colorado, 215 F.3d 1168 (10th Cir. 2000) .........................................................................................................................................3

Muscogee (Creek) Nation v. Henry, 867 F. Supp. 2d 1197 (E.D. Ok. 2010) .......................6, 7, 15

Muscogee (Creek) Nation v. Oklahoma Tax Commission, 611 F.3d 1222 (10th Cir. 2010) ........16

Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir. 2012) ........................................6, 15

Nanomantube v. Kickapoo Tribe in Kansas, 631 F.3d 1150 (10th Cir. 2011) ...............................3

Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008) ..........................................................................................................................................3

Neighbors of Casino San Pablo v. Salazar, 773 F. Supp. 2d 141 (D.D.C.), aff'd, 442 F. App’x 579 (D.C. Cir. 2011) ....................................................................................................10

Ninegret Development Corporation v. Narragansett Indian Wetuomuck Housing Authority, 207 F.3d 21 (1st Cir. 2000) ......................................................................................4

Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S. Ct. 905 (1991) ..........................................................................................3

Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932 (1986) ........................................................7, 11

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984) ................................................................................................................................13, 14, 17, 18

Pearlman v. Vigil-Giron, 71 F. App’x 11 (10th Cir. 2003) ...........................................................15


iv

Peterson v. Martinez, 707 F. 3d 1197 (10th Cir. 2013) .................................................................17

Ponca Tribe v. Oklahoma, 37 F.3d 1422 (10th Cir. 1994) .....................................................18, 19

Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 113 S. Ct. 684 (1993) ..................................................................................................................................6

Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002) .......................................................................7

Sanders v. Kansas Department of Social & Rehabilitation Services, 317 F. Supp. 2d 1233 (D. Kan. 2004) ....................................................................................................................6, 16

Scott Paper Company v. Marcalus Manufacturing Co., 326 U.S. 249, 66 S. Ct. 101 (1945) ................................................................................................................................10, 11

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996) ........................7, 8, 12

Seneca-Cayuga Tribe of Oklahoma v. State ex rel. Thompson, 874 F.2d 709 (10th Cir. 1989) ........................................................................................................................................10

State of Florida v. Seminole Tribe of Florida, 181 F.3d 1237 (11th Cir. 1999) ......................10, 11

State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994) ........................10

Texaco, Inc. v. Zah, 5 F.3d 1374 (10th Cir. 1993) ..........................................................................5

Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226 (10th Cir. 2014) .........................................5

United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170 (10th Cir. 1991) .......................................................................................................................................10

United States v. Nordic Village, Inc., 503 U.S. 30, 112 S. Ct. 1011 (1992) ...................................4

United States v. Tsosie, 92 F.3d 1037 (10th Cir. 1996) ..................................................................5

Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 122 S. Ct. 1753 (2002) ..........................................................................................................................8

Wyandotte Nation v. Sebelius, 337 F. Supp. 2d 1253 (D. Kan. 2004), aff’d in part, vacated in part & remanded, 443 F.3d 1247 (10th Cir. 2006) ...............................................10

Statutes, Regulations & Rules

18 U.S.C.A. § 1166(d) (West 2013) ..............................................................................................10

Indian Gaming Regulatory Act of 1988, 25 U.S.C.A. § 2701 et seq. (West 2013) ............... passim


v

25 U.S.C.A. § 2701 (West 2013) .....................................................................................................9

25 U.S.C.A. § 2710 (West 2013) .....................................................................................................9

25 U.S.C.A. § 2710(d)(7)(A)(ii) (West 2013) ...............................................................................10

Quapaw Code tit. 17, § 106 .............................................................................................................3

Quapaw Code tit. 17, § 108(B) .......................................................................................................3

Fed. R. Civ. P. 12(b)(1)....................................................................................................................1

Fed. R. Civ. P. 12(b)(6)....................................................................................................................1


REPLY OF QUAPAW TRIBAL GOVERNMENTAL PARTIES IN SUPPORT OF MOTION TO DISMISS

Defendants, the Downstream Development Authority of the Quapaw Tribe of Oklahoma

(O-Gah-Pah), the Quapaw Casino Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), the

Quapaw Tribal Development Corporation, T.C. Bear, John L. Berrey, Barbara Kyser Collier, Art

Cousatte, Thomas Crawfish Mathews, Donna Mercer, George R. “Ranny” McWatters, Jr., Larry

Ramsey, Tamara Smiley-Reeves, Rodney Spriggs, Trenton R. Stand, and Fran Wood, all entities,

officers, department heads, or directors of enterprises of the Quapaw Tribe of Oklahoma (or the

O-Gah-Pah) (collectively the “Tribal Defendants” or the “Defendants”), file this reply in support

of their motion to dismiss the claims asserted against them in this action (ECF Nos. 50 & 51)

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and

pursuant to the doctrine of tribal sovereign immunity.

INTRODUCTION & SUMMARY

What the State of Kansas and the Board of County Commissioners of Cherokee County

(collectively the “State”) seek in this case would greatly—and inappropriately—broaden the

doctrine of Ex parte Young. Longstanding precedent recognizes that Young appropriately may

be used only to prevent officials from acting unlawfully, and it always requires an ongoing

violation of federal law, which is not occurring in this situation. The State’s expansive view of

Young would permit a flood of suits not just against tribes but also against states, thereby

swallowing sovereign immunity with an exception intended to be applied narrowly—not to

permit any and all claims against governmental officers, as the State seeks to do in this case.

Indeed, if the State’s expansive view of Young were to be adopted it would permit similar claims

by the Tribe arising from the Kansas governor’s misrepresentations in the compacting process.

In its response to the motion to dismiss, the State fails not only to challenge the Tribal


2

Defendants’ statement of undisputed jurisdictional facts, but it fails to point to any ongoing

violation of federal law by the Tribal officers. Further, the State cannot sustain its position that

estoppel—an equitable civil remedy claim—can rise to the level of supreme federal law. The

State concedes that it is not pursuing claims under the Indian Gaming Regulatory Act of 1988,

25 U.S.C. § 2701 et seq. (the “IGRA”), yet its claims challenge an advisory opinion by the

Acting General Counsel of the National Indian Gaming Commission (the “NIGC”) concerning

future class II gaming by the Tribe—an activity beyond the State’s jurisdiction under federal

law. The IGRA’s detailed remedial scheme prohibits the State’s use of Ex parte Young, as well

as the State’s claims.

The State’s claims are, in every way, a suit against the Tribe, and therefore are barred by

sovereign immunity. The State cannot satisfy the requirements for pursuing an officer suit for

injunctive relief. The claims against the Tribal Defendants should be dismissed.

ARGUMENT & AUTHORITIES

I. THE STATE HAS IDENTIFIED NO WAIVER OR ABROGATION OF SOVEREIGN IMMUNITY UNDER EITHER FEDERAL OR TRIBAL LAW THAT PERMITS

THE CLAIMS ASSERTED AGAINST THE TRIBAL PARTIES

To overcome the governmental immunity of the Tribal parties from suit, the State parties

must—but they cannot—point either to a valid consent to suit under Tribal law or an abrogation

of such immunity by Congress. In fact, the State concedes that under the IGRA, Congress did

not permit suits against Indian tribes under the circumstances in this case. The State points to no

abrogation of Tribal immunity with respect to the Quapaw Casino Authority and the Quapaw

Tribal Development Corporation—and therefore concedes that those entities retain sovereign

immunity in this case. As the basis of its claims against the Downstream Development Authority

(the “DDA”), the State points solely to the statutory powers language in its Tribal charter, which


3

plainly preserves the entity’s immunity except when waivers are separately granted in specific

transactions—a situation inapplicable in this case.

The DDA is a governmental authority of the Tribe, whose charter—a Tribal ordinance—

recognizes that the entity may “consent to the exercise of jurisdiction over any suit” and “grant

limited waivers of the sovereign immunity of the Authority.” Quapaw Code tit. 17, § 106. That

language does not provide an automatic consent to suit in any instance. If fact, the charter could

not be clearer that further action must be taken by the DDA to grant a waiver of its governmental

immunity from suit, and in the form of a duly authorized limited waiver of immunity.

Underscoring this, the DDA charter provides that the entity “shall be entitled to all of the

privileges and immunities of the Tribe, including without limitation, sovereign immunity from

suit.” Quapaw Code tit. 17, § 108(B). By granting authority to the DDA to waive its sovereign

immunity for specific transactions, the Tribal Business Committee did not waive the DDA’s

sovereign immunity.

It is the established law that a waiver or abrogation of sovereign immunity “‘must be

unequivocally expressed’ rather than implied.” Nanomantube v. Kickapoo Tribe in Kan., 631

F.3d 1150, 1152 (10th Cir. 2011) (quoting Native Am. Distrib. v. Seneca-Cayuga Tobacco Co.,

546 F.3d 1288, 1293 (10th Cir. 2008)). Similarly, “to relinquish immunity, a tribe’s waiver must

be ‘clear.’” C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411,

418, 121 S. Ct. 1589, 1594 (2001) (quoting Oklahoma Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe of Okla., 498 U.S. 505, 509, 111 S. Ct. 905, 909 (1991)). There must also be “an

unequivocal intent to waive the immunity.” Credit Union Group Ent. v. Kansas Dept. of Credit,

457 F. Supp. 2d 1235, 1242 (10th Cir. 2006) (quoting Mclaughlin v. Bd. of Trustees of State

Colleges of Colo., 215 F.3d 1168, 1170 (10th Cir. 2000). Nothing in the charter language


4

provides for automatic—or so-called “blanket”—consent to suits against the DDA, and, rather,

simply makes clear that the DDA has the power to waive its immunity for particular transactions,

if it chooses to do so.1

In Ninegret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority,

207 F.3d 21 (1st Cir. 2000), the court interpreted language in a tribal ordinance “allowing the

Authority to sue or be sued” as not comprising a blanket waiver of immunity. See id. at 30. The

court explained that “the ordinance, by its terms, authorizes the Authority to shed its immunity

from suit by contract, and these words would be utter surplusage if the enactment of the

ordinance itself served to perfect the waiver.” Id. The same logic holds true in this case—if the

provision itself waived the authority’s sovereign immunity, additional language authorizing the

DDA to enter into contracts waiving such immunity and stating the DDA is entitled to sovereign

immunity without limitation would be surplusage.

Indeed, the language in the DDA’s chartering law is distinguishable from statutory

language that can provide for a waiver of sovereign immunity, including those on which the

State relies. The language of the DDA charter grants the entity the power not simply to be sued,

but rather to “consent” to be sued—a key distinction from broader statutory language. In

Marceua v. Blackfeet Housing Authority, 455 F.3d 974 (9th Cir. 2006), one of the cases relied

upon by the State, the statutory language “allow[ed] the authority to sue and be sued in its

corporate name, upon any contract, claim or obligation arising out of its activities.” Id. at 978.

1 There is nothing ambiguous about the powers language in the DDA charter. But

even if there were some ambiguity, the language would have to be construed strictly in favor of the Tribe, and narrowly to disfavor a waiver. See United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S. Ct. 1011, 1014-15 (1992) (noting a sovereign’s consent to be sued “must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires”) (quotations and citations omitted).


5

Because the clause expressly authorized or permitted suit on any contract, claim, or obligation

arising out of its activities, the court held the wording “forecloses the argument that some further

waiver must be obtained by a later contract.” Id. at 981. In fact, the charter of the DDA requires

further consent for any waiver. Thus, the language in the DDA charter does not provide for

open-ended consent to suits against that entity.2

In the absence of any congressional abrogation of Tribal sovereign immunity for this

case, and in the absence of any Tribal consent to this suit, the claims against the three Tribal

entities and the individual Tribal officers are barred.

II. LACKING A MERITORIOUS ALLEGATION OF A VIOLATION OF FEDERAL LAW, THE STATE CANNOT INVOKE THE DOCTRINE OF EX PARTE YOUNG

ON THE BASIS OF THE CIVIL REMEDY OF ESTOPPEL

The State’s legal analysis incorrectly presumes that it can avoid the bar of tribal

sovereign immunity under Ex parte Young simply by naming tribal officers individually and by

alleging any claim, and that the Court must accept its pleading on its face. If that analysis were

correct, the governmental immunities of not only Indian tribes but also of the states would

become worthless. The rule of Ex parte Young permits certain claims to proceed—the bar of

sovereign immunity notwithstanding—but only if a court determines the plaintiff has satisfied

each of the doctrine’s requirements, including demonstrating that government officials are

2 To the extent the Court finds ambiguity in the relevant provisions of the DDA charter, the interpretation of this tribal ordinance should be interpreted by the Tribal courts in the first instance under the principles of comity and tribal self-governance. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16, 107 S. Ct. 971, 976-77 (1986); United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996). It is well established that the federal policy of tribal self-governance empowers tribal governments with the authority to govern their own affairs, and tribal courts with the jurisdiction to interpret their own laws. See Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1237-40 (10th Cir. 2014); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 (10th Cir. 1997); Texaco, Inc. v. Zah, 5F. 3d 1374, 1377-78 (10th Cir. 1993). Thus, if the meaning of this Tribal law is unclear, this Court should obtain the benefit of Tribal expertise in interpreting the DDA charter, and determining the Tribal intent incorporated in its language.


6

committing a violation of federal law. What the State seeks to do in this case would improperly

lower the bar for an application of Young, and would permit parties to sue state and tribal offers

in their official capacities for any claim.

A. The State Cannot Meet its Burden of Pleading a Plausible Ongoing Violation of Actual Federal Law

The so-called doctrine of Ex parte Young is, indeed, a very narrow exception, not the

rule.3 The State contends, contrary to longstanding precedent, that “whether there actually is an

ongoing violation of law is irrelevant.” (ECF No. 56, at 6.) In fact, there must be an allegation

of a violation of federal law, and that allegation must be “non-frivolous,” “substantial,” and not

“solely for the purpose of obtaining jurisdiction.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d

1159, 1167 (10th Cir. 2012). Importantly, the rule of Young requires plaintiffs to “demonstrate”

an ongoing violation of federal law. See K.P. v. LeBlanc, 729 F.3d 427, 439 (5th Cir. 2013);

Muscogee (Creek) Nation v. Henry, 867 F. Supp. 2d 1197, 1204 (E.D. Ok. 2010); see also

Sanders v. Kansas Dep’t of Social & Rehab. Servs., 317 F. Supp. 2d at 1233, 1243 (D. Kan.

2004) (noting the Young doctrine “requires that there ‘be an ongoing violation of federal law’”)

(quoting Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998)

(emphasis added). The purpose of Ex parte Young, by its design, is to end continuing violations

of federal law, so when there is no ongoing violation of federal law, a suit is barred by sovereign

immunity. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).

3 See Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 866 (10th Cir. 2003);

Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998). It is as well a very narrow exception. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145, 113 S. Ct. 684, 688 (1993); Barrett v. New Mexico Univ. Bd. of Regents, 562 Fed. Appx. 692, 694 (10th Cir. 2014); Buchwald, 159 F.3d 487, 495; Sanders v. Kansas Dep’t of Social & Rehab. Servs., 317 F. Supp. 2d 1233, 1243 (D. Kan. 2004). Courts are charged to ensure sovereign immunity remains meaningful, and so the Young doctrine should not be “rotely” applied. Hill v. Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007).


7

The request for prospective relief from an ongoing violation of federal law must be

“properly” pled, “emphasizing the importance of the adverb ‘properly.’” Hill v. Kemp, 478 F.3d

1236, 1259 (10th Cir. 2007). Real interests served by sovereign immunity are “not to be

sacrificed to elementary mechanics of captions and pleadings.” Id. at 1256-57. When ruling on

a motion to dismiss, the Court is not required to accept, as true, legal conclusions couched as

factual allegations. See Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 (1986).

Only well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. See

Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). A complaint “must contain sufficient

allegations of fact to state a claim for relief that is plausible upon its face.” Muscogee (Creek)

Nation v. Henry, 867 F. Supp. 2d 1197, 1203 (E.D. Okla. 2010). Plaintiffs have the burden “to

show that they have a reasonable likelihood of mustering factual support for their claims.” Id. at

1203-04. Further, “[c]omplaints which consist of no more than labels and conclusions or a

formulaic recitation of the elements of a cause of action, will not do.” Id. at 1204.

As demonstrated by the advisory opinion letter issued by the National Indian Gaming

Commission (the “NIGC”)—which the State seeks to attack—the Tribe and its officers are in full

compliance with IGRA. The State has failed to assert any colorable argument that could show

otherwise. Importantly, any claim the State brings under the IGRA can be nothing more than

meritless or frivolous, because Congress has created a detailed remedial scheme regulating

Indian gaming, and which specifically prohibits states from asserting IGRA violations except in

certain instances not relevant here. The intricate remedial scheme under IGRA prohibits Ex

parte Young suits, and that concludes the analysis of the State’s claims in this case. See

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74-76 S. Ct. 1114, 1132-33 (1996).

The State is attempting to use equitable estoppel for its peripheral attack on IGRA and on


8

Congress’s clear statutory intentions, but this claim too must fail for four primary reasons. First,

equitable estoppel is a civil remedy, not a “supreme law” of the United States, as required by Ex

parte Young. Second, the State’s estoppel claim is nothing more than a meritless or frivolous

claim asserted purely for obtaining jurisdiction. Third, the State’s asserted basis of the alleged

“violation” of federal law was, at most, a one-time representation, not an ongoing violation of

law. Finally, Young cannot apply because the individual officers in this case had and have no

authority to commit any of the potential violations the State may be alleging.

B. The State’s Claims Are Nothing More than an Attempt to Prevent Class II Gaming on the Tribe’s Trust Land, Re-Characterized to Avoid the Jurisdictional Limitations Contained in IGRA

The IGRA contains a detailed remedial scheme which reflects Congress’s intent to limit

the claims and parties who can make claims relating to the regulation of gaming on Indian lands.

See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74-76, 116 S. Ct. 1114, 1132-33 (1996); see

also Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 647, 122 S. Ct. 1753, 1761

(2002). As the Tenth Circuit has held, “‘federal courts are not free to imply the wide-ranging,

judge made remedial doctrine of Ex parte Young when Congress has seen fit to craft a

significantly narrower statutory remedy.’” Hill v. Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007)

(quoting ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1189 (10th Cir. 1998)). In Seminole Tribe

of Florida v. Florida, the Supreme Court plainly held that the detailed remedial scheme under

the IGRA prohibits use of the Ex parte Young doctrine because its application effectively would

rewrite the IGRA’s statutory scheme, an action courts have no authority to carry out. 517 U.S.

44, 74-76, 116 S. Ct. 1114, 1132-33 (1996).

In this case, Kansas’s attempts to create remedial relief not permitted under the IGRA is

transparent. While the State protests that its claims against the Tribal parties “arise not under


9

IGRA specifically, but from the common law principals of equitable estoppel,” the State’s

pleadings plainly demonstrate otherwise. (ECF No. 56, at 12.) For example:

“At issue herein is the question of whether the land, once taken into trust became ‘Indian lands’ pursuant to [the IGRA].” (ECF No. 56, at 2.)

“[C]onstructing and operating a casino on the land would violate the Indian Gaming Regulatory Act.” (ECF No. 56, at 7.)

“[P]laintiff’s contend the Kansas land does not meet the exception set forth in [the IGRA] and is therefore not eligible for gaming”) (ECF No. 56, at 7.)

“To game on the land would be illegal and a violation of IGRA.” (ECF No. 56, at 8-9.)

“NIGC’s application of the ‘last reservation exception’ is wrong, and to conduct gaming on such land would be a violation of IGRA and federal law.” (ECF No. 56, at 9.)

“The Amended Complaint alleges that to conduct gaming on the Tribe’s trust land would not meet [IGRA] requirements and thus, constitute a violation of federal law”. (ECF No. 56, at 9.)

While the State insists it intends to pursue a theory not under the IGRA but under the civil

remedy of equitable estoppel, this claim is obviously being used only in an effort to create a new

novel theory for application of Ex parte Young to the IGRA.

Congress plainly and clearly set forth in the IGRA when claims may be brought against

Indian tribes for gaming violations occurring on Indian lands, and claims by states to prohibit

class II gaming on Indian lands were intentionally precluded. The IGRA states that “class II

gaming on Indian lands shall continue to be within the jurisdiction of the Indian tribes.” 25

U.S.C.A. § 2710. Further, “Indian tribes have the exclusive right to regulate gaming activity on

Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted

within a State which does not, as a matter of criminal law or public policy, prohibit such gaming

activity.” 25 U.S.C. § 2701. The jurisdiction of federal courts to hear claims by a state is limited


10

to those “to enjoin class III gaming activity located on Indian lands and conducted in violation of

any Tribal-State compact.” Id. at § 2710(d)(7)(A)(ii). When gaming on Indian lands does not

fall within the IGRA, “[t]he United States shall have exclusive jurisdiction over criminal

prosecutions.” 18 U.S.C. § 1166(d). Federal courts, including this court, have overwhelmingly

agreed, without exception, that states have no right to bring a claim under IGRA when no tribal-

state compact is in place.4

The Eleventh Circuit—under similar facts—held the IGRA precludes any implied rights

to a claim, including those by a state to enjoin gaming. Florida v. Seminole Tribe of Fla., 181

F.3d 1237, 1247 (11th Cir. 1999). In Seminole Tribe of Florida, the State of Florida sued the

Seminole tribe and its chairman seeking an injunction prohibiting the tribe from conducting

unauthorized class III gaming operations on Indian lands. Id. at 1239. The court dismissed the

claim, holding “the legislative history and statutory scheme of IGRA . . . unequivocally

demonstrate that Congress did not intend to vindicate any such right by creating a private right of

action that would allow states to obtain injunctive relief against uncompacted class III tribal

gaming.” Id. at 1247. The court reasoned “[t]he existence of these various express remedies is a

clear signal that we should not read into IGRA the implied right of action asserted by the State.”

Id. at 1248-49. “Moreover,” the court held, “it is important to recognize that such an implied

4 See United Keetoowah Band of Cherokee Indians v. Okla., 927 F.2d 1170, 1177 (10th Cir. 1991); Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1242 (11th Cir. 1999); State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 690 (1st Cir. 1994); Seneca-Cayuga Tribe v. State ex rel. Thompson, 874 F.2d 709, 713 (10th Cir. 1989); Wyandotte Nation v. Sebelius, 337 F. Supp. 2d 1253, 1257 (D. Kan. 2004), aff’d in part, vacated in part & remanded, 443 F.3d 1247 (10th Cir. 2006); Neighbors of Casino San Pablo v. Salazar, 773 F. Supp. 2d 141, 148 (D.D.C.), aff'd, 442 F. App’x 579 (D.C. Cir. 2011); Gaming Corp. v. Dorsey & Whitney, 88 F.3d 536, 545 (8th Cir. 1996). States’ remedies for violations of state and gaming laws on Indian lands are limited to requesting the United States for prosecution or asking the NIGC to fine the tribe or close gaming facilities. See Florida v. Seminole Tribe of Fla., 181 F.3d at 1244.


11

right of action would wreak havoc upon the existing remedial scheme of IGRA.” Id. at 1249.

That same logic applies to the State’s Ex parte Young claim here.

Similarly, in Gaming Corporation v. Dorsey & Whitney, the Eighth Circuit repeatedly

emphasized that states do not have authority to regulate gaming absent a class III tribal-state

gaming compact. 88 F.3d 536, 545 (8th Cir. 1996). The court held that the IGRA has

completely preempted any claims not permitted within the IGRA remedial structure. Id. at 547.

As the court noted, “Congress thus left states with no regulatory role over gaming except as

expressly authorized by IGRA, and under it, the only method by which a state can apply its

general civil laws to gaming is through a tribal-state compact.” Id. at 546. Here, Governor

Brownback failed to negotiate a tribal-state compact with the Tribe, so any claim by the State

regarding gaming on Indian lands is nothing more than frivolous.

In determining whether relief is barred under sovereign immunity, the Court should “look

to the substance rather than the form of the relief sought” and “be guided by the policies

underlying the decision in Ex parte Young.” Papasan v. Allain, 478 U.S. 265, 278-79, 106 S. Ct.

2932, 2940-41 (1986). Further, “‘real interests served by the Eleventh Amendment are not to be

sacrificed to elementary mechanics of captions and pleadings.’” Hill v. Kemp, 478 F.3d 1236,

1256-57 (10th Cir. 2007) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270,

117 S. Ct. 2028, 2034 (1997)). Here, although the State claims its action arises under equitable

estoppel, both the substance of the claims and the remedy sought shows the state is attempting to

make an IGRA claim.

Just this year, the Supreme Court reaffirmed that a congressional remedial scheme

precludes equitable remedies, including those under Ex parte Young. See Armstrong v.

Exceptional Child Ctr., ___ U.S. ___, 135 S. Ct. 1378, 1380 (2015) (holding statutory remedies


12

in the Medicaid Act foreclosed any implied rights and equitable relief). In this case, as in

Armstrong, there is a detailed remedial scheme, and all other claims are preempted—including

those in equity—so claims by the state can be nothing more than frivolous. See Seminole Tribe,

517 U.S. at 73-74, 116 S. Ct. at 1132 (remedial scheme in IGRA precluded any relief not set

forth in the statute, including relief under Ex parte Young).

Claims by a state relating to Indian gaming are preempted and precluded under IGRA’s

intricate remedial scheme. Because any claim by the State that the Tribe is gaming or is

planning to conduct gaming unlawfully on Indian lands—including a claim arising under

equitable estoppel—is precluded by the IGRA, the alleged violation of federal law in this case is

frivolous and cannot be used to invoke Ex parte Young.

C. The State’s Broadly Pleaded Theory of Equitable Estoppel Is Not the Equivalent of a Violation of Federal Law for Purposes of the Ex parte Young Doctrine

The State claims it has made a sufficient allegation of federal law that warrants

precluding the Tribe from conducting gaming on its Kansas land based upon principles of

equitable estoppel, but equitable estoppel cannot trump the Tribe’s sovereign immunity. Civil

theories such as equitable estoppel are not “supreme law,” as required for using the Ex parte

Young doctrine to override sovereign immunity. See Elephant Butte Irrigation Dist. of N.M. v.

Dep't of Interior, 160 F.3d 602, 610 (10th Cir. 1998) (“[a]s a general rule, if the state officials’

conduct was authorized by state law, and no federal rights were infringed, then the alleged

violation of Plaintiff’s rights is merely tortuous interference and the Eleventh Amendment bars

federal jurisdiction.”). If common law remedies, such as equitable estoppel, could be used to

bypass sovereign immunity, it would permit a flood of suits against tribes and states.5 Indeed,

5 Assuming the State’s proposal to expand the application of Young were to be


13

the Ex parte Young doctrine rests on the theory that governmental officers are stripped of their

authority to act only when violating the supreme authority of federal law.6 Further, Ex parte

Young does not apply when “the ‘need to promote the supremacy of federal law’ underlying the

Ex parte Young exception is absent.” Stewart, 57 F.3d at 1553 (quoting Pennhurst State School

& Hosp., 465 U.S. at 101, 104 S. Ct. at 908).

The State argues that equitable estoppel can be used to invoke Ex parte Young because it

could be characterized as common law, and common law was used to support an application of

Young in Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011). But the federal

“common law” in that case was a jurisdictional rule laid down by the Supreme Court. In Crowe

& Dunlevy, the Tenth Circuit applied Young to allegations that a tribal judge had exceeded the

boundaries of his jurisdiction under federal law. Id. at 1153. Thus, the limits on tribal

accepted, the Tribe could avoid Kansas’ governmental immunity in a claim arising from Governor Brownback’s misrepresentations and lack of good faith in the compacting process. In fact, the State currently is interfering with the Tribe’s federal rights as recognized under the IGRA. Under the facts set forth in the Tribe’s Motion to Dismiss—which were uncontested by the State—Governor Brownback stated he would enter into compact negotiations with the Tribe for the purpose of developing a class III gaming facility. (ECF No. 51, at 4-5.) On their face, these would comprise a far more specific violation of the IGRA than the State has pleaded in this case.

6 See Young, 209 U.S. at 160, 28 S. Ct. at 454. The Ex parte Young doctrine is rooted in the Supremacy Clause and its use is limited to violations of “supreme law.” See, e.g., Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985) (“the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause” and “[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the interest in assuring the supremacy of that law.”); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105, 104 S. Ct. 900, 910 (1984) (“Ex parte Young was the culmination of efforts by this Court to harmonize principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution.”); Ex parte Young, 209 U.S. 123, 159-60, 28 S. Ct. 441, 454 (1908) (“If . . . the officer . . . comes into conflict with the superior authority of the Constitution, and he is in that case stripped of his official or representative character . . . [t]he State has no power to impart to him any immunity from responsibility to the supreme authority of the United States”).


14

jurisdiction were “controlling federal law,” and in accordance with Young that federal law is the

supreme law of the United States. See id. at 1155. The court stated “[u]nder Ex parte Young,

certain official-capacity suits are excepted from the doctrine of sovereign immunity as a way to

vindicate federal rights and, in the process, ensure the supremacy of federal law.” Id. at 1155-56.

The court held “the rationale applies with equal force here, where federal common law has been

recognized as the supreme law of the United States.” Id. at 1156 (emphasis added). The same

cannot be said as to the attempted application of civil estoppel in this case.

Equitable estoppel is akin to state civil law, a tort claim, or notice relief—all of which

have been held to be insufficient to invoke Ex parte Young.7 Equitable estoppel has been held

not to be supreme, but rather inferior to any statute and even public policy.8

In a similar case, Jennings Water, Inc. v. City of North Vernon, the court rejected an

equitable estoppel claim, agreeing that “equitable estoppel . . . would block the application of a

statute enacted to protect the public interest.” 895 F.2d 311, 317 (7th Cir. 1989). The federal

circuit, after citing multiple cases with similar decisions, held “public policy embodied in the

7 See Pennhurst State Sch. & Hosp., 465 U.S. at 106, 104 S. Ct. at 911 (noting

violation of state law cannot be held to invoke the Ex parte Young doctrine because state law is not the supreme federal authority which strips an official of his sovereign immunity protection); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457 (1949) (holding a tort claim is insufficient to strip away the sovereign immunity of an officer); see also Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985) (denying application of Ex parte Young because notice relief is not an ongoing violation of federal law).

8 See Am. Sur. Co. of New York v. Gold, 375 F.2d 523, 528 (10th Cir. 1966) (“doctrines of estoppel . . . do not in general apply in transactions that are forbidden by statute or that are contrary to public policy”); Jennings Water, Inc. v. City of N. Vernon, 895 F.2d 311, 317 (7th Cir. 1989) (equitable estoppel cannot “block the application of a statute enacted to protect the public interest”); Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 257, 66 S. Ct. 101, 105 (1945) (estoppel cannot “be the means of successfully avoiding the requirements of legislation enacted for the protection of public interest . . . [t]he interest in private good faith is not a universal touchstone which can be made the means of sacrificing a public interest secured by an appropriate exercise of the legislative power”).


15

statute cannot be thwarted by the principle of equitable estoppel.” Id. at 318. Here, just as in

Jennings Water, the public policy embodied the IGRA—prohibiting states from regulating class

I and class II gaming on Indian lands—cannot be thwarted by an equitable estoppel claim. A

common law remedy of this sort cannot extinguish tribal sovereign immunity, the IGRA, or

well-established jurisdictional principles by invoking the Ex parte Young doctrine.

Even if equitable estoppel could somehow be considered supreme federal law, it still

could not be used to invoke Young in this case, because the State’s estoppel claim is meritless.

The State argues its claims are grounded in case law, but has failed to cite even a single decision

under which equitable estoppel has been used to support an application of Young. Meritless or

frivolous claims such as these are precisely the type that cannot pierce the tribe’s sovereign

immunity through a Young claim. See Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167

(10th Cir. 2012) (Young requires “a non-frivolous, substantial claim for relief . . . that does not

merely allege a violation of federal law solely for the purpose of obtaining jurisdiction”);

Pearlman v. Vigil-Giron, 71 F. App’x 11, 16 (10th Cir. 2003) (rejecting plaintiff’s Young

argument because the claim to a constitutional write-in voting was frivolous).

In Muscogee (Creek) Nation v. Henry, the court denied an application of the Young

doctrine because the alleged violations of federal law were frivolous. 867 F. Supp. 2d 1197

(E.D. Okla. 2010). After analyzing six different claims, and dismissing each, the court held

“[t]he Ex parte Young exception . . . [is] not applicable because there is no plausible claim of a

violation of federal law to be prospectively enjoined.” Id. at 1214-15. Here, as in Henry, the

State has failed to plead a plausible, non-frivolous violation of federal law.9 (ECF No. 51, at

9 The State insists that its claim does not arise under the IGRA. (ECF No. 56, at 12

(“plaintiff’s claims against the Tribal Defendants arise not under IGRA specifically, but from the


16

21-23.)

Finally, equitable estoppel cannot be the basis for an application of Ex parte Young

because any representation by the Tribe in its land-into-trust application was a prior single

occurrence, not an ongoing violation that could be enjoined in the future. See Breard v. Greene,

523 U.S. 371, 378, 118 S. Ct. 1352, 1356 (1998) (holding Ex parte Young did not apply because

failure to notify was a single occurrence in the past and was not ongoing); Muscogee (Creek)

Nation v. Oklahoma Tax Commission, 611 F.3d 1222, 1233 (10th Cir. 2010) (if a claim is for a

past action, the suit is against the governmental entity, not the individual officer); Sanders v.

Kansas Dep’t of Social & Rehab. Servs., 317 F. Supp. 2d 1233, 1244 (D. Kan. 2004) (rejecting

Young when the suit would not “remedy any future wrongs” and the circumstances would not

“reoccur with any level of frequency”). The “continuing effect of a past violation is not

sufficient to warrant prospective injunctive relief.” Id.

In Fuller v Davis, the Tenth Circuit declined to permit an Ex parte Young claim because

the plaintiffs did not allege an ongoing violation of federal law to support prospective injunctive

relief. 594 Fed. Appx. 935, 940 (10th Cir. 2014). The court held because the gravamen of the

complaint was that the plaintiffs were “tricked long ago,” the plaintiffs were “seeking to address

alleged past harms rather than prevent prospective violations of federal law.” Id. Thus, the court

dismissed the case for lack of a waiver of sovereign immunity. Id. Similarly, the State’s claim

that it was tricked long ago by the Tribe’s representations is not a prospective violation of federal

common law principles of equitable estoppel”).) Although the State says it is making an equitable estoppel claim, it was not adequately pleaded in the State’s amended complaint, and the elements of estoppel cannot be satisfied here. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 323, 56 S. Ct. 466, 472 (1936) (noting equitable estoppel must “rest on substantial grounds of prejudice or change of position, not on technicalities”).


17

law and requires dismissal by this Court.10

D. The Young Doctrine Cannot Be Applied in this Case, Because Only the Tribe—Not Individual Officers—Had and Has the Authority to Act With Respect to Gaming Matters

Additionally, the State ignores its burden to show that the individual Tribal parties named

in its Amended Complaint have both a connection with and authority over some alleged violation

of federal law. See Ex parte Young, 209 U.S at 157, 28 S. Ct. at 452-53; Peterson v. Martinez,

707 F. 3d 1197, 1205 (10th Cir. 2013); El-Ghori v. Grimes, 23 F. Supp. 2d 1259, 1267 (D. Kan.

1998). The State’s generalized contention that some of the individual Tribal Defendants may

have “possible decisionmaking authority” with regards to future gaming on Kansas land is

insufficient for an application of Young. In fact, it was the Tribe as a tribal government—not the

individual Tribal officers—which had the land taken into trust. (ECF No. 13 Ex. 2.) A suit

against government officers is barred when the governmental entity is the “real, substantial party

in interest.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 908

(1984). Because the Tribe is the real party in interest, the suit against the officers is barred by

sovereign immunity.

The State fails to acknowledge that the Tribal officers named in this case are empowered

to act not individually but only as a governing body, and as individual officers they had no

authority to carry out any actions relating to this litigation. In Barrett v. University of New

Mexico Board of Regents, the Tenth Circuit held that individual board members cannot be sued

under Ex parte Young if they are not empowered to act individually, but only as a board. 562

Fed. Appx. 692, 694 (10th Cir. 2014). The court held that even if the plaintiff could show a

10 As discussed in the Tribe’s motion to dismiss, the State, in fact, was not “tricked”

because the Tribe did not make any misrepresentations to the State. (ECF No. 51, at 23 n.20.)


18

violation of federal law, Young still would be inapplicable “because individual Board members

are not empowered to act individually, but must act as a body corporate.” Id. (quotations

omitted).

None of the Tribal officers named by the State had or have authority to act in their

individual capacities with respect either to gaming or to the fee-to-trust application relating to the

Kansas trust land. None of the three Tribal entities named have any delegated governmental

powers. (ECF No. 51-1 ¶ 17, at 5.) Similarly, none of the members of the Tribal Business

Committee, which is the elected governing body of the Tribe, have been delegated powers to act

individually in any area relevant to this case. (Ex. F.) The Tribe operates on the basis of tribal

common law, and based upon authorizations for specific actions approved by the Business

Committee. The elected officers of the Tribe do not have the individual authority to conduct

gaming under IGRA—only the Tribe does—so any judicial bar relating to gaming would be

against the Tribe itself.

The Supreme Court has held that “relief sought nominally against an officer is in fact

against the sovereign if the decree would operate against the latter.” Pennhurst State Sch., 465

U.S. at 101, 104 S. Ct. at 908 (quoting Hawaii v. Gordon, 373 U.S. 57, 58, 83 S. Ct. 1052, 1053

(1963)). Because any injunction on gaming could only operate against the Tribe, sovereign

immunity requires this case to be dismissed. The claims asserted by the State are akin to those at

issue in Ponca Tribe v. Oklahoma, in which the Tenth Circuit dismissed the tribe’s Ex parte

Young argument because “IGRA names only the state as a party to negotiate with Indian tribes”

and an injunction ordering a Governor to negotiate a compact would operate against the state

itself because the state is the only party that may enter into a compact with a tribe.” 37 F.3d

1422, 1437 (10th Cir. 1994). Thus, as in Ponca Tribe and Barrett, because individual Tribal


19

officers have no authority to act, this is a suit against the Tribe itself, and must be dismissed.11

CONCLUSION

The State’s claims against the Tribal entities and the individual Tribal officers are claims

against the Tribe barred by sovereign immunity. The State cannot satisfy the requirements for

pursuing claims against the 18 Tribal officers and directors under the doctrine of Ex parte Young,

for reasons foremost of which is that the detailed remedial scheme under the IGRA precludes

states from seeking to enjoin or otherwise regulate class II gaming on Indian lands. For the

foregoing reasons, the claims against the three Tribal entities and the 18 individual Tribal

officers, directors, and department heads should be dismissed for lack of subject matter

jurisdiction.

11 The holding in the Ponca Tribe case points to the fundamental problem with the

State’s proposed expansion of the Young doctrine. In that case, an Indian tribe attempted to invoke Young to claim the governor had failed to negotiate a class III gaming compact in good faith under the IGRA. 37 F.3d at 1436-37. What was precluded by IGRA in the Ponca Tribe case apparently would be permitted under the type of estoppel theory the State is using in this case. For example, a tribe could re-cast its argument under IGRA as a claim for estoppel and avoid the limitation in IGRA.


20

Respectfully submitted,

s/ Paul M. Croker Stephen R. Ward, Okla. Bar No. 13610* Daniel E. Gomez, Okla. Bar No. 22153* R. Daniel Carter, Okla. Bar No. 30514* CONNER & WINTERS, LLP 4000 One Williams Center Tulsa, Oklahoma 74172-0148 Telephone: (918) 586-8978 Telecopier: (918) 586-8698

Paul M. Croker, Kans. Bar No. 21627 ARMSTRONG TEASDALE, LLP 2345 Grand Boulevard, Suite 1500 Kansas City, Missouri 64108 Telephone: (816) 221-3420 Telecopier: (816) 221-0786

Attorneys for Defendants, the Downstream Development Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), the Quapaw Casino Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), the Quapaw Tribal Development Corporation, T.C. Bear,

John L. Berrey, Barbara Kyser Collier, Art Cousatte, Thomas Crawfish Mathews, Donna Mercer, George R. “Ranny” McWatters, Jr., Larry Ramsey, Tamara

Smiley-Reeves, Rodney Spriggs, Trenton R. Stand, and Fran Wood

* Admitted pro hac vice.


vi

CERTIFICATE OF SERVICE

I hereby certify that on this the 20th day of July, 2015, I electronically transmitted a full, true, and correct copy of the above and foregoing instrument, the “REPLY OF QUAPAW TRIBAL GOVERNMENTAL PARTIES IN SUPPORT OF MOTION TO DISMISS,” to the Clerk of Court using the Electronic Case Filing System (the “ECF System”) for filing and transmittal of a Notice of Electronic Filing to the filing following ECF registrants (names only):

R. Daniel Carter, [email protected] Daron T. Carreiro, [email protected] Jeffrey A. Chanay, [email protected] David R. Cooper, [email protected] Paul M. Croker, [email protected] Daniel E. Gomez, [email protected] Sarah A. Morse, [email protected] Stephen Phillips, [email protected] Stephen R. Ward, [email protected]

A full, true, and correct copy of the above and foregoing was also on the same date deposited in the regular United States mail, with proper postage fully prepaid thereon, addressed to the following:

Derek L. Schmidt, Attorney General Office of the Attorney General of Kansas 120 S.W. Tenth Avenue, 2nd Floor Topeka, Kansas 66612-1597

s/ Paul M. Croker Paul M. Croker, Kans. Bar No. 21627 ARMSTRONG TEASDALE, LLP 2345 Grand Boulevard, Suite 1500 Kansas City, Missouri 64108 Telephone: (816) 221-3420 Telecopier: (816) 221-0786


vii

APPENDIX OF EXHIBITS

The following supplemental exhibits are hereby submitted in support of the “REPLY OF QUAPAW TRIBAL GOVERNMENTAL PARTIES IN SUPPORT OF MOTION TO DISMISS.”

Exhibit No. Title/Description

F. “Resolution Delegating Authority to the Quapaw Tribal Business Committee to Speak and Act in Behalf of the Quapaw Tribe of Indians” (Sept. 20, 1957) (including amendments).


Documents

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … · Donna Mercer, George R. “Ranny” McWatters, Jr., Larry Ramsey, Tamara Smiley-Reeves, Rodney Spriggs, Trenton R. Stand,