APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 4:12-CV-00054-GKF-TLW).
Matthew Justin Kelly of Fredericks Peebles & Morgan LLP, Washington, DC, (Martha L. King of Fredericks Peebles & Morgan LLP, Louisville, Colorado; Dennis J. Whittlesey, Jr. of Dickinson Wright PLLC, Washington, DC; H. James Montalvo, Law Offices of H. James Montalvo, P.A., South Miami, Florida, with him on the briefs), for Defendants-Appellants.
Patrick R. Wyrick, Solicitor General, (E. Scott Pruitt, Attorney General, Oklahoma Office of the Attorney General, and M. Daniel Weitman, Assistant Attorney General, Oklahoma City, Oklahoma; Lynn H. Slade, William C. Scott and Sarah M. Stevenson of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellee.
Gary K. King, Attorney General, State of New Mexico, Santa Fe, New Mexico, and Christopher D. Coppin, Special Assistant Attorney General, State of New Mexico, Albuquerque, New Mexico, filed an amicus curiae brief for the State of New Mexico.
Bill Schuette, Attorney General, State of Michigan, John J. Bursch, Solicitor General, State of Michigan, and S. Peter Manning and Louis B. Reinwasser, Assistant Attorneys General, State of Michigan, Lansing, Michigan, filed an amicus curiae brief for the State of Michigan.
Before BRISCOE, Chief Judge, KELLY and BACHARACH, Circuit Judges.
BRISCOE, Chief Judge.
We once again address the subject of Indian gaming and, following the lead of the Supreme Court's recent decision in Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014), emphasize that any federal cause of action brought pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii) of the Indian Gaming Regulatory Act (IGRA) to enjoin class III gaming activity must allege and ultimately establish that the gaming " is located on Indian lands." 25 U.S.C. § 2710(d)(7)(A)(ii). If, as here, the challenged class III gaming activity is not located on Indian lands, the action fails to state a valid claim for relief under § 2710(d)(7)(A)(ii) and must be dismissed.
The State of Oklahoma filed this action against officials of the Kialegee Tribal Town, a federally recognized Indian tribe in Oklahoma, claiming that they, along with a federally-chartered corporation related to the tribe and a related Oklahoma limited liability company, were attempting to construct and ultimately operate a class III gaming facility on non-Indian lands in Broken Arrow, Oklahoma, in violation of both IGRA and a state-tribal gaming compact. Defendants moved to dismiss the complaint, but the district court denied their motion. The district court subsequently granted a preliminary injunction in favor of the State that prohibited defendants from constructing or operating a class III gaming facility on the property at issue. Defendants now appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that, in light of Bay Mills, the State has failed to state a valid claim for relief. We therefore reverse and remand to the district court with instructions
to vacate its preliminary injunction and to dismiss the State's complaint.
a) The Tribe
The Kialegee Tribal Town (the Tribe) is a federally recognized Indian tribe, organized under Section 3 of the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. § 503 et seq. The Tribe, headquartered in Wetumka, Oklahoma, first received federal recognition in 1936. The Tribe has no reservation and, in a 1990 application it submitted to the Bureau of Indian Affairs (BIA), stated " that it 'had no land.'" Add. at 25.
The Tribe is governed in accordance with a constitution and by-laws that were approved by the Secretary of the Interior (Secretary) on April 14, 1941, and ratified by the Tribe on June 12, 1941. The 1941 Constitution established the Kialegee Tribal Town Business Committee (Business Committee) as the Tribe's governing body.
b) The parties
Defendant Tiger Hobia is the Tribe's Town King, a member of the Business Committee, and a citizen and resident of the State of Oklahoma. Defendant Thomas Givens is the Tribe's 1st Warrior, a member of the Business Committee, and a citizen and resident of the State of Oklahoma.
Defendant Kialegee Tribal Town (the Town Corporation) is a federally chartered corporation. Its federal charter was issued under Section 3 of the OIWA, approved by the Secretary of the Interior on July 23, 1942, and ratified by the Tribal Town on September 17, 1942. The charter provides the Town Corporation with the power to sue and be sued.
Florence Development Partners, LLC (Florence Development) is an Oklahoma limited liability company doing business in the State of Oklahoma.
c) The gaming compact between the State and the Tribe
In 2004, the State of Oklahoma established a model tribal gaming compact that effectively constitutes a " pre-approved" offer to federally recognized tribes in the State (Model Compact). Add. at 27. If a tribe accepts the Model Compact, obtains approval of the Model Compact by the Secretary of the Interior, and complies with the requirements of IGRA, the tribe can operate class III gaming facilities on its Indian lands.
On April 12, 2011, the Tribe accepted the Model Compact, and the Tribe and State entered into what is referred to as " the Kialegee Tribal Town and State of Oklahoma Gaming Compact" (Tribal-State Gaming Compact). App. at 692. The Secretary of the Interior approved the Tribal-State Gaming Compact on July 8, 2011. The Tribal-State Gaming Compact authorizes the Tribe to operate gaming " only on its Indian lands as defined by IGRA." Add. at 27 (internal quotation marks omitted).
d) Defendants' construction of a gaming facility in Broken Arrow, Oklahoma
By their own admission, defendants " engaged in the construction of and [had] plan[ned] to operate the Red Clay Casino as a [c]lass III gaming facility under IGRA," App. at 394, " at the southwest corner of Olive Avenue and Florence ...