State of Alabama v. 50 serialized JLM Games, Inc. gambling devices et al
ORDER ADOPTING the Magistrate Judge's 36 REPORT AND RECOMMENDATION as the opinion of this Court, with additional discussion as set forth in Order. Signed by Judge Callie V. S. Granade on 3/30/2015. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
STATE OF ALABAMA,
ex rel Ashley M. Rich,
District Attorney for the
13th Judicial District of Alabama
50 SERIALIZED JLM GAMES, INC.
GAMBLING DEVICES, et al.,
) CIVIL ACTION NO. 14-0066-CG-B
This matter is before the Court on the Report and Recommendation
(“R&R”) of the Magistrate Judge (Doc. 36) and the objection (Doc. 37) to the
R&R by Defendants MOWA Band of Choctaw Indians, Jimmy L. Martin,
Chief Framon Weaver and JLM Games, Inc. (collectively referenced as the
“MOWA Defendants”). Also before the Court are Plaintiff’s (“the State”)
motion to remand (Doc. 8) and MOWA Defendants’ response in opposition
The Magistrate Judge recommended this Court grant the State’s
motion to remand (Doc. 36). Specifically, the Magistrate Judge determined
that remand was appropriate because there was no federal question and
therefore this Court does not have jurisdiction to hear the case (Doc. 36).
After due and proper consideration of this file and a de novo
determination of those portions of the recommendation to which objection is
made, the Magistrate Judge’s Report and Recommendation made under 28
U.S.C. § 636(b)(1)(B) is ADOPTED as the opinion of this Court, with the
following additional discussion.
The question raised by the motion to remand is whether the Court has
subject matter jurisdiction to hear the case. The MOWA Defendants argue
that “[w]hile the general rule is that a District Court must remand a removed
action if it finds a lack of subject matter jurisdiction, that rule does not apply
when the lack of subject matter jurisdiction is the result of sovereign
immunity.” (Doc. 17, pp. 2-3). Although the Bureau of Indian Affairs rejected
the MOWA’s petition for federal recognition in 1999, the MOWA Defendants
claim they are a tribe at common law and therefore enjoy sovereign immunity
(Doc. 17, pp. 9-13). In particular, the MOWA Defendants argue that the
Treaty of Dancing Rabbit Creek proves their immunity and thus provides the
basis for federal question jurisdiction (Doc. 37, pp. 10-16). In footnote two of
the R&R, the Magistrate Judge explained the reason for not considering the
Treaty of Dancing Rabbit Creek:
The Court recognizes that in order to determine whether sovereign
immunity applies, a tribe must be a tribe recognized by Congress or
the Bureau of Indian Affairs (BIA), see United States v. Sandoval, 231
U.S. 28, 46-47, 34 S. Ct. 1, 58 L. Ed. 107 (1913), or meet the federal
common law definition. See Montoya v. United States, 180 U.S. 261,
266, 21 S.Ct. 358, 45 L. Ed. 521, 36 Ct. Cl. 577 (1901). However, this
Court need not reach that issue because assuming arguendo that the
MOWA Band is entitled to tribal sovereign immunity, as noted supra,
the Supreme Court has made it clear that absent Congressional
legislation, tribal immunity does not circumvent the requirements of
the well-pleaded complaint rule. Okla. Tax Comm’n, 489 U.S. at 841.
Thus, the defense of tribal sovereign immunity does not confer federal
question jurisdiction over this action.
(Doc. 36, p. 16, n.2).
As the Magistrate Judge explained, even presuming sovereign
immunity, the MOWA Defendants must still comply with the well-pleaded
complaint rule. (Doc. 36, p. 16) A defense of sovereign immunity alone does
not convert the state law claims into federal questions. See Okla. Tax
Comm’n v. Graham, 489 U.S. 838, 841 (1989) (stating “But it has long been
settled that the existence of a federal immunity to the claims asserted does
not convert a suit otherwise arising under state law into one which, in the
statutory sense, arises under federal law. Gully v. First Nat’l Bank, 299 U.S.
109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The possible existence of a tribal
immunity defense, then, did not convert Oklahoma tax claims into federal
questions, and there was no independent basis for the original federal
jurisdiction to support removal.”)
The MOWA Defendants object to the Magistrate Judge’s findings and
argue that “[t]he Court cannot have it both ways: it cannot assume that the
Tribe has immunity (to avoid implicating a federal question under the
Treaty) and then continue asserting jurisdiction over the Tribe by ordering
remand to the State Court.” (Doc. 37 p. 12). This argument represents a
misguided view on jurisdiction. Granting a remand is not an exercise of
jurisdiction, but rather an acknowledgment of the absence of jurisdiction. The
Court is not required, as the MOWA Defendants insist, to decide whether or
not they are a tribe at common law. There are no federal claims in this case
and thus the Court must remand to state court. Whether or not the MOWA
Defendants are a tribe at common law is not a necessary issue to address and
the Court expresses no opinion on that question.
The MOWA Defendants also argue that the Magistrate Judge did not
give adequate consideration to the preemptive effect of the Indian Regulatory
Gaming Act’s (“IGRA”) penal provision, 18 U.S.C. § 1166, which they claim
provides a federal statutory basis for the case. (Doc. 37 p. 16).
IGRA “provide[s] a statutory basis for the operation and regulation of
gaming by Indian tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48,
116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Congress passed the IGRA in
response to the Supreme Court's holding in California v. Cabazon, 480 U.S.
202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). See S.Rep. No. 100–446 (1988),
reprinted in 1988 U.S.C.C.A.N. 3071. Cabazon held that, in the absence of
Congressional regulation of tribal gaming, Indian tribes could conduct
gaming on Indian lands without state interference if the state permitted
gaming in any form. Cabazon's holding essentially “left Indian gaming
largely unregulated by the states.” Seminole Tribe of Fla. v. Florida, 11 F.3d
1016, 1019 (11th Cir.1994), aff'd, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d
252 (1996). In 1988, Congress filled the federal regulatory void with IGRA.
Alabama v. PCI Gaming Auth., No. 2:13-CV-178-WKW, 2014 WL 1400232
(M.D. Ala. Apr. 10, 2014). IGRA legalizes specified gaming activities on
Indian lands but does not give Indian tribes unfettered control over these
activities. Id. IGRA preempts state anti-gaming laws, but only to the extent
of its application. Carruthers v. Flaum, 365 F. Supp. 2d 448, 466 (S.D.N.Y.
2005) see also Cayuga Indian Nation of New York v. Village of Union
Springs, 317 F.Supp.2d 128, 148 (N.D.N.Y.2004); First American Casino
Corp. v. Eastern Pequot Nation, 175 F.Supp.2d 205, 209 (D.Conn.2000)
(citing State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th
Cir.1999)), cert. denied, 527 U.S. 1039, 119 S.Ct. 2400, 144 L.Ed.2d 799
(1999); Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536 (8th
IGRA also includes penal provisions. See 18 U.S.C. §§ 1166-1168.
Section 1166 provides that “for purposes of Federal law, all State laws
pertaining to the licensing, regulation, or prohibition of gambling, including
but limited to criminal sanctions applicable thereto,” apply in “Indian
country.” § 1166(a). The MOWA Defendants argue that their gambling
activities occurred in “Indian Country” and therefore, federal law applies.
(Doc. 37, pp. 16 – 19). However, a review of the statute reveals that IGRA
applies only to federally recognized tribes and therefore does not apply to the
IGRA defines “Indian Tribe” as “any Indian tribe, band, nation or other
organized group or community of Indians which – (A) is recognized as eligible
by the Secretary for the special programs and services provided by the United
States to Indians because of their status as Indians…” 25 U.S.C. § 2703 (5).
IGRA further defines “Secretary” as “The term ‘Secretary’ means the
Secretary of the Interior.” 25 U.S.C. § 2703 (10). The statute is clear that it
only applies to federally recognized Indian Tribes. Congress did not define
“Indian tribes” as “state, federal and common law recognized tribes.” Instead,
IGRA explicitly states tribes recognized as eligible for federally recognized
programs and services by the Secretary of the Interior. 25 U.S.C. §§ 2703 (5),
(10). Indeed, precedent also supports the conclusion that IGRA applies only to
federally recognized tribes. See Passamaquoddy Tribe v. Maine, 75 F.3d 784,
792, n.4 (lst Cir. 1996) (“[IGRA] has no application to tribes that do not seek
and attain federal recognition.”); First Am. Casino Corp. v. Eastern Pequot
Nation, 175 F. Supp. 2d 205, 209-10 (D. Conn. 2000) (Because “IGRA’s text
unambiguously limits its scope to gaming by tribes that have attained federal
recognition, the statute does not apply to defendant’s gaming-related
activities [where the Indian tribe had not yet attained formal federal
recognition].”); see also Picayune Rancheria of the Chukchansi Indians v.
Tan, 2014 U.S. Dist. LEXIS 29973, at *9 (E.D. Cal. Mar. 7, 2014) (“Plaintiffs
are not an “Indian tribe” for purposes of IGRA because they do not fall within
such definition under Section 2703, Subsection 5 of Title 25 of the United
States Code.” (quotation marks in original)); Carruthers v. Flaum, 365 F.
Supp. 2d 448, 466 (S.D.N.Y 2005) (“IGRA applies only to the activities of
federally recognized tribes.”)
The U.S. Supreme Court’s recent decision in Michigan v. Bay Mills
Indian Community further supports a finding that IGRA only applies to
federally recognized tribes. Michigan v. Bay Mills Indian Cmty., 134 S. Ct.
2024, 188 L. Ed. 2d 1071 (2014). Bay Mills involved a federally recognized
tribe in Michigan, who began constructing a casino outside of Indian
reservation lands. Id at 2029. Michigan sued, arguing that IGRA extended to
all Indian gambling activities, both on and off the reservation. Id. The
Supreme Court sided with the Bay Mills Indian Community and found that
without explicit authority from Congress, the Court cannot abrogate the
federally recognized tribes’ sovereign immunity. Id at 2039. Though IGRA
created an anomaly of gambling run by federally recognized tribes off Indian
lands, the Court refused to expand the purview of the statute. Id at 2033.
(stating “But this Court does not revise legislation, as Michigan proposes,
just because the text as written creates an apparent anomaly as to some
subject it does not address. Truth be told, such anomalies often arise from
statutes, if for no other reason than that Congress typically legislates by
parts – addressing one thing without examining all others that might merit
Here, the Bay Mills decision works against the MOWA Defendants.
Key to the Supreme Court’s ruling was its reluctance to expand the purview
of IGRA and thus threaten a federally recognized tribe’s sovereign immunity.
In this case, the MOWA Defendants are not federally recognized by the
Secretary of the Interior. Even if they were, for the sake of argument, a tribe
at common law, IGRA still would not apply. The MOWA Defendants point to
no evidence of a congressional intent to completely preempt the field of
regulating gaming by Indian tribes that have not attained federal
recognition. As the Supreme Court indicated, the language of IGRA is clear
and a court does not have a “roving license, in even ordinary cases of
statutory interpretation, to disregard clear language simply on the view that
(in Michigan’s words) Congress ‘must have intended’ something broader.” Id
at 2034. This Court is not inclined to expand the purview of the statute to
include non-federally recognized tribes without explicit authority from
Finally, MOWA Defendants contend that the Magistrate Judge
wrongly considered the State’s motion to remand before the Defendant’s
motion to dismiss. Although the Motion to Dismiss was filed before the
Motion to Remand,
[t]his Court's analysis [must] begin[ ] with the threshold
jurisdictional question raised by [the] Motion to Remand. Absent
federal jurisdiction, this Court lacks the power to decide [the]
pending Motion to Dismiss, and must immediately remand this
action to state court without reaching the question of whether
Plaintiff[ ] ha[s] stated cognizable claims against [the]
Defendants. Thus, the Court must first determine whether this
action was properly removed from state court.
Wilks v. Callahan, Civil Action No. 08–638–CG–M, 2009 WL 2243702, at *3
(S.D.Ala. July 24, 2009) (citing Morrison v. Allstate Indent. Co., 228 F.3d
1255, 1261 (11th Cir.2000); University of S. Ala. v. American Tobacco Co., 168
F.3d 405, 411 (11th Cir.1999)); see also Klempner v. Northwestern Mut. Life
Ins. Co., 196 F.Supp.2d 1233, 1242–43 (S.D.Fla.2001) (“Although a motion to
dismiss is currently pending in this Court [ ], ‘a federal court must remand
for lack of subject matter jurisdiction notwithstanding the presence of other
motions pending before the court.’ ”) (quoting University of S. Ala., 168 F.3d
at 411). The Magistrate Judge correctly considered the motion for remand
The State’s Motion to Remand (Doc. 8) is GRANTED and this case is
hereby REMANDED to the Circuit Court of Mobile County, Alabama.
DONE and ORDERED this 30th day of March, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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