LAAKE AKA v. TURNING STONE RESORT CASINO (2018)

SUMMARY ORDER

Appellant John Laake (“Laake”), proceeding pro se, appeals from the district court’s judgment dismissing his complaint against Turning Stone Resort Casino (“Turning Stone”) for lack of subject matter jurisdiction based on tribal sovereign immunity. Laake had purchased a vendor booth for a multi-day event hosted by Turning Stone and attempted to use the booth to conduct tarot card readings, occult readings, and other paranormal demonstrations. Turning Stone employees, finding this conduct improper, informed Laake that he would have to stop or he would be forced to leave the casino. Laake later sued Turning Stone for alleged violations of his First Amendment and equal protection rights, as well as for infliction of emotional distress and defamation under New York common law. The district court dismissed the complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

On appeal from a judgment under Rule 12(b)(1), we review “the district court’s factual findings for clear error and its legal conclusions de novo.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). A case is properly dismissed for lack of subject matter jurisdiction if, after construing all ambiguities and drawing all inferences in the plaintiff’s favor, the district court “lacks the statutory or constitutional power to adjudicate it.” Id. (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. Aurecchione, 426 F.3d at 638.

Here, the district court properly concluded that it lacked subject matter jurisdiction over the complaint against Turning Stone. Indian tribes have sovereign immunity from suit unless “Congress has authorized the suit or the tribe has waived its immunity.” C&L Enter., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 416, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) ). Tribal immunity extends to tribal commercial enterprises, such as gambling venues. See Kiowa Tribe, 523 U.S. at 754–55, 118 S.Ct. 1700. Turning Stone is a commercial enterprise, owned and operated by the Oneida Indian Nation of New York, a federally recognized Indian tribe. See Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 82 Fed. Reg. 4915-02, 4917 (Jan. 17, 2017). Neither congressional abrogation of immunity nor waiver has occurred here. Therefore, Turning Stone, as a commercial enterprise of the Oneida Indian Nation of New York, is entitled to sovereign immunity.

Laake argues that the Indian Civil Rights Act of 1968 (“ICRA”) supersedes Turning Stone’s immunity. However, it is settled law that suits like this against a tribe under ICRA are also barred by sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). ICRA provides no private right of action against a tribe and may be enforced only in tribal court or by a petition for habeas corpus in federal court. See id. at 64–65, 98 S.Ct. 1670; Shenandoah v. U.S. Dept. of Interior, 159 F.3d 708, 713–14 (2d Cir. 1998). Neither of these exceptions applies here.

We have considered all of Laake’s remaining arguments and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the district court.