                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                    ___________________________________

                     Nos. 03-2329/2355/2357/2390/2392/2393
                    ___________________________________


      In re: Sac & Fox Tribe of the      *     Appeals from the United States
      Mississippi in Iowa /              *     District Court for the
      Meskwaki Casino Litigation         *     Northern District of Iowa.

                                  _______________

                               Submitted: July 24, 2003
                                  Filed: August 27, 2003
                                 _______________

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

       These consolidated appeals involve the intersection of an issue that is subject
to federal regulation, namely, the operation of Class III gaming on Indian lands, with
an issue that is subject to tribal control, namely, the right of a limited sovereign to
interpret its own constitution and select its own leaders. As to the gaming issue, we
affirm the district court’s grant of a preliminary injunction enforcing a temporary
closure order from the Chairman of the National Indian Gaming Commission (the
“NIGC”) and the district court's dismissal of a premature challenge to the temporary
closure order. We reverse, however, the district court’s dismissal of a claim by the
federally recognized tribal council to enjoin illegal gaming under 25 U.S.C.
§ 2710(d)(7)(A)(ii). As to the issue of tribal leadership, we affirm the district court’s
dismissal of the federally recognized tribal council’s action for broader injunctive and
declaratory relief.
                                    I. Background

        The Sac & Fox Tribe of the Mississippi in Iowa (the “Tribe”), a federally
recognized Indian tribe, operates the Meskwaki Casino•Bingo•Hotel under a state-
tribal compact with the State of Iowa as authorized by the Indian Gaming Regulatory
Act (“IGRA”). 25 U.S.C. § 2710(d)(1). A Tribal Constitution approved by the
Secretary of the Interior in 1937 provides that the Tribe is to be governed by an
elected Tribal Council. Alex Walker, Jr., leads the current, elected Tribal Council
(the “Elected Council”). The Elected Council refers to itself throughout these
proceedings as the federally recognized Tribal Council. The Tribal Constitution vests
broad power in the Tribal Council, including dispute resolution powers, and does not
establish an independent Tribal Court.

       In the fall of 2002, members of the Tribe who were dissatisfied with the
conduct of the Elected Council alleged illegal conduct by the Elected Council and
circulated petitions to seek a special election to recall the entire council. Article XII
of the Tribal Constitution expressly provides for such a recall procedure:

      Upon a petition signed by not less than thirty percent of the eligible
      voters of the Tribe, enumerated at the last general election, the Tribal
      Council shall call a special election to ratify or reject any action by the
      Tribal Council or to recall any member of the Tribal Council.

The petitioners needed 243 signatures and collected 283. The Elected Council,
however, rejected the petition as invalid due to alleged irregularities and refused to
call a special election. The Elected Council claims that some of the signatures were
forged. The Elected Council does not claim to have conducted an investigation to
determine if there were 243 valid signatures, nor does the Elected Council provide
any further explanation of the alleged irregularities. Rather, the Elected Council
states only that it was satisfied that the irregularities were sufficient not to warrant a
recall election.

                                           -2-
        Because the Tribal Constitution grants to the Tribal Council dispute resolution
powers and the duty to call a special election, there is no separate Tribal body to
which the petitioners may appeal the Elected Council’s action other than the Elected
Council itself. On March 3, 2003, faced with the Elected Council’s ongoing refusal
to call a special election, members of the Tribe chose to pursue a self-help remedy not
provided under the Tribal Constitution. Charlie Old Bear, the hereditary Chief of the
Tribe, appointed a group led by Homer Bear, Jr., as an interim council (the
“Appointed Council”). The Appointed Council claimed authority to govern the Tribe
alleging a traditional form of Tribal government that predated the 1937 Tribal
Constitution.

       The members of the Appointed Council – who previously led the recall petition
effort – did not seek BIA assistance in securing a recall election before pursuing their
self-help remedy. In a letter dated March 13, however, they did seek BIA recognition
as the new government of the Tribe. The BIA’s Regional Director replied, stating,
“[t]here are no provisions in [Tribal Constitution Articles X and XII] for the BIA to
intervene in those tribal process[es] nor is there an appeal to the BIA.” Quoting a
1996 BIA ruling, Wadena, et al. v. Acting Minneapolis Area Director, IBIA 96-99-A,
the Regional Director stated, “the Band, as a sovereign nation, has not only the right,
but also the responsibility, to resolve this dispute for itself, without further
interference from [the] BIA. As long as the Band’s final resolution does not conflict
with its governing documents or the Indian Civil Rights Act, 25 U.S.C. § 1302, [the]
BIA must defer to the Band’s resolution of this intra-tribal dispute.”

       The Appointed Council subsequently built support among members of the
Tribe, and, on March 26, took control of the casino, other Tribal facilities, and some
of the Tribe’s finances. The Elected Council alleges that the Appointed Council
seized the casino by force and placed armed guards in various Tribal buildings.
During this time, the casino remained open and continued to operate under the control

                                          -3-
of the Appointed Council. The Elected Council alleges that the Appointed Council
excluded members of the Elected Council from the casino and other Tribal facilities,
but permitted members of the Elected Council, like all members of the Tribe, to
receive their monthly dividend check. The Appointed Council notified two banks
that held gaming proceeds, Wells Fargo Bank Iowa, N.A., and the State Bank of
Toledo, that only the Appointed Council possessed authority to act on behalf of the
Tribe. Faced with uncertainty over which council possessed authority to act on behalf
of the Tribe, the banks froze Tribal accounts.

       Facing the Appointed Council’s appropriation of power, the Elected Council
sought BIA confirmation of continued recognition. In response to a March 27 request
from the Elected Council, the Regional Director of the BIA declined to confirm that
the Elected Council was the federally recognized governing body for the Tribe and,
again, refused to “intervene in this internal matter at this time.” In an April 1 letter
to Congressman Leonard Boswell, however, the Acting Assistant Secretary of the
Interior for Indian Affairs stated that the Department the Interior “continue[d] to
recognize the elected Tribal Council . . . as the leadership of the Tribe.” Since
April 1, the BIA has consistently recognized the Elected Council as the leadership of
the Tribe.

       On April 8, the Elected Council filed suit in the United States District Court for
the Northern District of Iowa against the members of the Appointed Council and
against the banks that froze Tribal accounts or held deposits made by the Appointed
Council. The Elected Council’s complaint contained claims for declaratory and
injunctive relief. In the claim for declaratory relief, the Elected Council sought a
judgment declaring that the Elected Council “has the exclusive right to control the
financial assets of the Tribe, with the power to collect, deposit, and disburse those
assets and funds for the benefit of the Tribe” and that the members of the Appointed
Council have “no legal authority to act on behalf of or bind the Tribe with respect to
the gaming revenues described above.” In claims for injunctive relief, one of which

                                          -4-
the Elected Council captioned as a claim under the Racketeering Influenced and
Corrupt Organization Act (“RICO”), the Elected Council sought an order
(1) requiring the Appointed Council to account for and return all Tribal money and
property, (2) prohibiting the Appointed Council from representing themselves as
authorized representatives of the Tribe or enforcing any personnel actions against the
employees of any Tribal operations, and (3) requiring the defendant banks to honor
the Elected Council’s instructions regarding Tribal funds.

       The district court held a hearing on April 10, and, on April 15, dismissed the
Elected Council’s action in its entirety for lack of subject matter jurisdiction. The
district court characterized the relief sought by the Elected Council as judicial
intervention in a non-justiciable, intra-tribal dispute. In reaching this conclusion, the
district court examined and rejected three specific bases for federal question
jurisdiction. First, the district court found no basis for jurisdiction under the United
States’ general trust responsibilities because “[c]asino revenues do not constitute
property held in trust by the federal government, but are instead tribal property.”
District Court Order at 5 (citing Smith v. Babbitt, 875 F. Supp. 1353, 1369 (D. Minn.
1996)). The district court next determined that the “IGRA does not provide a general
private right of action” and the “relief requested here is not to enforce or to determine
compliance with the IGRA, but rather to decide which Tribal Council is properly in
place under the Tribe’s Constitution.” District Court Order at 7-8. Finally, the district
court dismissed the Elected Council’s RICO action because the underlying acts of the
Appointed Counsel, as alleged by the Elected Council, could only qualify as predicate
offenses if the court first concluded that the Appointed Council lacked authority
under Tribal law to govern the Tribe.

      Continuing in their efforts to gain legitimacy, the Appointed Council held a
meeting on April 14. The Appointed Council asked Tribal members to determine
whether members of the Elected Council were “deemed persons of honor, law
abiding, and of good character.” Elected Council supporters boycotted the meeting.

                                          -5-
The 242 voters who participated overwhelming voted that the seven Elected Council
members were unfit to govern. In response to April 3 and April 18 letters from the
Appointed Council, the Deputy Commissioner of Indian Affairs stated, “[t]he Bureau
of Indian Affairs continues to recognize Mr. Alex Walker, Jr., as the elected Chief of
the Council, and the other elected representatives to the Council as well.”
Accordingly, although the BIA initially refused to recognize either council, it was
clear in April that the BIA and the Secretary of the Interior had extended, at a
minimum, interim recognition to the Elected Council.

       On April 30, the Chairman of the NIGC issued a Notice of Violation (“NOV”)
addressed to both councils. The NOV outlined violations of the IGRA and the Tribal-
State compact. The violations all stemmed from the fact that gaming at the casino
was “not being conducted by . . . the governmental authority recognized by the
Secretary of the Interior.” The NOV required the Elected Council, recognized by the
Secretary of the Interior, to reassume control of the casino by May 2, 2003. The NOV
described procedures for administrative appeal.

      The May 2 deadline passed with the Appointed Council still in control of the
casino. On May 12, the Chairman of the NIGC issued a temporary closure order.
The order, by its terms, was effective immediately and explained the procedures
available for expedited review by the Chairman and administrative appeal to the full
NIGC.

       The Appointed Council sought neither expedited review before the Chairman
nor administrative review before the entire NIGC; rather, the Appointed Council
continued to operate the casino. On May 14, the Appointed Council (nominally on
behalf of the Tribe) filed suit in the United States District Court for the Northern
District of Iowa against the United States and against the Chairman of the NIGC. The
Appointed Council characterized its action as a Petition for Review of Agency Action
and a Motion for Temporary Restraining Order. The Appointed Council specifically

                                         -6-
requested a court order setting aside the NOV and temporary closure order, or, in the
alternative, suspension of enforcement of the temporary closure order pending
administrative review by the NIGC. In addition, the Appointed Council raised a
claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), against the Chairman alleging that the Chairman’s action in
issuing the temporary closure order constituted a violation of the Tribe’s rights under
the Constitution of the United States. The United States moved to dismiss the action
alleging a lack of subject matter jurisdiction based on the Appointed Council’s failure
to exhaust administrative remedies. The district court scheduled arguments on the
Appointed Counsel’s action for Monday, May 19.

      On Friday, May 16, the United States, on behalf of the NIGC, instituted a
separate action against the leaders of the Appointed and Elected Councils. The
United States’ action was captioned as a Complaint for Injunctive Relief and a
Motion for Temporary Restraining Order. The United States sought enforcement of
the closure order through a court order to prohibit the Appointed and Elected
Councils from conducting gaming activities on Tribal Land “pending administrative
action by the NIGC on whether the Temporary Closure Order should be made
permanent.”

       On May 19, the day of the hearing, the Elected Council moved to intervene in
the Appointed Council’s suit against the NIGC. The Elected Council, as intervenor,
asserted claims against the Appointed Council under 25 U.S.C. § 2710(d)(7)(A)(ii)
seeking an order to enjoin the Appointed Council from conducting gaming at the
casino and to require the Appointed Council to “surrender physical control of the
Casino, its revenues, the tribal government buildings, and all bank accounts
containing Tribal monies.” The Elected Council also asserted claims against the
Chairman of the NIGC, seeking an order to enjoin the Chairman’s enforcement of the
closure order, to instruct the Chairman to remove the Appointed Council, and to order
the Chairman to “limit the scope of punitive enforcement action to the illegal conduct

                                         -7-
of those individuals who are preventing the federally recognized Tribal government
from operating the Tribe’s Casino.” In addition, the Elected Council asserted trespass
claims under state law against both the Appointed Council and the Chairman.

       The Appointed Council claims that it did not receive the United States’
complaint and motion of May 16 prior to the morning of arguments on its own motion
for injunctive relief. On that day, Monday May 19, the district court consolidated the
cases and heard arguments on both cases, including the intervenor’s motion. After
the hearing, the district court granted the parties one day to file post-hearing briefs.

       On May 22, the district court dismissed the Appointed Council’s claims for
lack of subject matter jurisdiction and found that the IGRA required administrative
appeal of the Chairman’s temporary closure order prior to judicial review. The
district court dismissed the Appointed Council’s Bivens claim sub silentio. In
addition, the district court granted the United States’ motion for injunctive relief in
the form of an order to enforce the Chairman’s temporary closure order. The district
court characterized its order as a preliminary injunction rather than a temporary
restraining order. The district court denied all other motions (including the Elected
Council’s claims as intervenor) as moot.

      The following day, May 23, U.S. Marshals closed the casino. The Elected and
Appointed Councils appealed, and we consolidated the appeals from the district
court’s April 15 and May 22 orders. On June 12, the Elected Council appealed to the
NIGC for administrative review of the Chairman’s NOV and closure order, but did
not ask for a hearing. The Appointed Council did not file an appeal to the NIGC
within the 30 day window provided under 25 U.S.C. § 2713(b)(2). On July 10, the
Elected Council completed briefing on its administrative appeal. Under 25 U.S.C.
2713(b), the NIGC is required to rule on the administrative appeal withing 60 days
of a hearing. Because no hearing was granted, the NIGC considers the 60 day



                                          -8-
deadline to run from the date on which the administrative appellant, the Elected
Council, submitted its brief. The NIGC has not yet issued its ruling.

              II. Motion to Dismiss the Appointed Council’s Claims

       We first address the district court’s May 22 dismissal of the Appointed
Council’s claims to enjoin enforcement of the Chairman’s temporary closure order.
To bring a claim against an agency of the Federal government, as the Appointed
Council does here, there must be a waiver of sovereign immunity. The
Administrative Procedures Act (“APA”) can provide the necessary waiver but only
where a statute does not preclude judicial review. 5 U.S.C. § 702 (providing a right
of review); 5 U.S.C. § 701(a)(1) (stating that the APA does not apply where statutes
otherwise preclude judicial review). The district court found that the IGRA precluded
judicial review of the Chairman’s temporary closure order and dismissed the
Appointed Council’s claims for failure to exhaust administrative remedies. We
review de novo a dismissal for lack of subject matter jurisdiction. Great Plains Coop
v. Commodity Futures Trading Comm’n, 205 F.3d 353, 354 (8th Cir. 2000).

       The Appointed Council argues that because the IGRA does not contain
language that expressly precludes APA review of the Chairman’s temporary closure
order, such review must be permitted. We disagree. In Block v. Community
Nutrition Institute, 467 U.S. 340, 345 (1984), the Supreme Court held that the
availability of APA review is not based solely on the express language of the statute.
Rather:

      The APA confers a general cause of action upon persons adversely
      affected or aggrieved by agency action within the meaning of a relevant
      statute, but withdraws that cause of action to the extent the relevant
      statute precludes judicial review. Whether and to what extent a
      particular statute precludes judicial review is determined not only from
      its express language, but also from the structure of the statutory scheme,

                                         -9-
      its objectives, its legislative history, and the nature of the administrative
      action involved.

Id. (internal quotations and citations omitted) (emphasis added). In United States v.
Fausto, 484 U.S. 439 (1988), the Court held: “As we have made clear elsewhere, the
presumption favoring judicial review is not to be applied in the ‘strict evidentiary
sense,’ but may be ‘overcom[e] whenever the congressional intent to preclude review
is fairly discernible in the statutory scheme.’” Id. at 452 (citing Block, 467 U.S. at
351). Both Fausto and Block found congressional intent to preclude review based
not on explicit language (as the Appointed Council argues we must), but based on
“inferences of intent” drawn from the respective, relevant statutory schemes as a
whole. Fausto, 484 U.S. at 452; Block, 467 U.S. at 349.

       Congressional intent to preclude APA review of the Chairman’s temporary
closure order and to permit APA review of the NIGC’s subsequent final action is
more than fairly discernible in the IGRA’s statutory scheme. The IGRA contains a
detailed enforcement and administrative review system. It allows the NIGC
Chairman to order temporary closure of an IGRA-regulated game for substantial
violation of the IGRA, the NIGC’s regulations, or Tribal regulations, ordinances, and
resolutions. 25 U.S.C. § 2713(b)(1). The Chairman’s order is then subject to
administrative review:

      Not later than thirty days after the issuance by the Chairman of an order
      of temporary closure, the Indian tribe or management contractor
      involved shall have a right to a hearing before the Commission to
      determine whether such order should be made permanent or dissolved.
      Not later than sixty days following such hearing, the Commission shall,
      by a vote of not less than two of its members, decide whether to order
      a permanent closure of the gaming operation.

25 U.S.C. § 2713(b)(2). Following this administrative review process, the IGRA
expressly provides for judicial review of the NIGC’s final decision under the APA:

                                          -10-
      A decision of the Commission to give final approval of a fine levied by
      the Chairman or to order a permanent closure pursuant to this section
      shall be appealable to the appropriate Federal district court pursuant to
      chapter 7 of Title 5.

25 U.S.C. § 2713(c). Later, the IGRA reiterates its explicit support for APA review
of final decisions from the full NIGC:

      Decisions made by the Commission pursuant to sections 2710, 2711,
      2712, and 2713 of this title shall be final agency decisions for purposes
      of appeal to the appropriate Federal district court pursuant to chapter 7
      of Title 5.

25 U.S.C. § 2714 (emphasis added).

      The APA itself precludes review of preliminary or intermediate agency action:

      Agency action made reviewable by statute and final agency action for
      which there is no other adequate remedy in a court are subject to judicial
      review. A preliminary, procedural, or intermediate agency action or
      ruling not directly reviewable is subject to review on the review of the
      final agency action.

5 U.S.C. § 704. The Appointed Council argues that the temporary closure order is a
“final agency action” subject to judicial review. We disagree. The Supreme Court
utilizes a two part test to determine whether an agency action is final for purposes of
the APA: “First, the action must mark the consummation of the agency’s
decisionmaking process--it must not be of a merely tentative or interlocutory nature.
And second, the action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S.
154, 177-78 (1997) (internal quotations and citations omitted).



                                         -11-
      Although the Chairman’s closure order is effective immediately and impacts
the parties, it does so only on a temporary basis. A temporary closure order
inherently is not “the consummation of the agency’s decisionmaking process,” even
though it may have an immediate effect on the Tribe’s finances in the near term. The
IGRA by its express terms makes the actions of the Chairman in issuing an NOV or
temporary closure order preliminary and intermediate. The IGRA contains no
language making a temporary closure order by the Chairman judicially reviewable.
As already discussed, the detailed appeal process to the NIGC as a whole is another
“adequate remedy.” Accordingly, the Chairman’s action is not a final agency action
under Bennett.

      We previously addressed a temporary closure order from the Chairman and
suggested that the Chairman’s temporary closure order was not a final agency action
under the APA. United States v. Santee Sioux Tribe of Nebraska, 135 F.3d 558, 561
(8th Cir.), cert. denied, 525 U.S. 813 (1998). Although Santee Sioux did not require
us to squarely address whether APA review of a temporary closure order is
permissible, we stated that such an order does not become final for purposes of
review until after the NIGC as a whole upholds the closure order on administrative
appeal: “The District Court dismissed the Tribe’s case . . . holding that the
Chairman’s temporary closure order was not final agency action subject to judicial
review. . . . [Later,] the NIGC upheld on appeal the Chairman’s order of temporary
closure, whereupon that order became final.” Id. The Santee Sioux court accurately
described the interim nature of the Chairman’s temporary closure order. The
Chairman’s order in the present case, as in Santee Sioux, was not final.

      The Appointed Counsel argues in the alternative that, even if administrative
exhaustion generally is required under the IGRA, it was not required in this case
because the exhaustion requirement exception set forth in McCarthy v. Madigan, 503




                                       -12-
U.S. 140 (1992), applies.1 We disagree. The Court in McCarthy permitted a
prisoner’s constitutional tort claim to proceed against prison officials notwithstanding
the prisoner’s failure to exhaust his administrative remedy through the prison’s
grievance system. Id. at 156. The Court first noted the need to defer to Congress
regarding exhaustion of administrative remedies where Congress expressly delegates
responsibility over a program to an administrative agency. Id. at 145. The Court
further noted that it is not necessary to exhaust administrative remedies in situations
where “‘the litigant’s interests in immediate judicial review outweigh the
government’s interests in the efficiency or administrative autonomy that the
exhaustion doctrine is designed to further.’” Id. at 146 (quoting West v. Bergland,
611 F.2d 710 (8th Cir. 1979)). The Court proceeded to identify three general
scenarios under which the litigant’s interest would outweigh the need for
administrative review: where an exhaustion requirement would “occasion undue
prejudice to subsequent assertion of a court action”; where administrative remedy
may be inadequate because there is “some doubt as to whether the agency was
empowered to grant effective relief”; and third, “where the administrative body is
shown to be biased or has otherwise predetermined the issue before it.” Id. at 146-48
(citations and internal quotations omitted).

      Here, the exception of McCarthy does not apply. Not only did Congress
delegate authority to the NIGC and the Chairman, Congress itself created the detailed
administrative review process at issue in this case. Accordingly, deference to
Congress militates against our exemption of the Appointed Council’s claims from
administrative exhaustion. Further, none of the three scenarios that the Court


      1
       We note that, in the context of prisoners’ claims, McCarthy has been
superseded by statute. See 42 U.S.C. § 1997(e)(a) (expressly providing that prisoners
may not bring § 1983 actions regarding prison conditions “until such administrative
remedies as are available are exhausted”). The rule of McCarthy, however, remains
valid outside of the prisoner context. See, e.g., United States v. Dico, Inc., 136 F.3d
572, 576 (8th Cir. 1998).

                                         -13-
identified as excusing a failure to exhaust applies in the present case. There has been
no showing of agency bias, there has been no suggestion that requiring exhaustion
might preclude later judicial review, and the NIGC is clearly empowered to grant
relief.

       Finally, the Appointed Council attempts to establish jurisdiction by
characterizing its challenge to the Chairman’s order as a constitutional tort claim
under Bivens, 403 U.S. 388. Framing an attack on the Chairman’s actions as a
constitutional tort claim does not relieve the Appointed Council of the IGRA’s
exhaustion requirements. Sinclair v. Hawke, 314 F.3d 934 (8th Cir. 2003). In
Sinclair, we recently stated:

      [w]hen Congress has created a comprehensive regulatory regime, the
      existence of a right to judicial review under the Administrative
      Procedures Act is sufficient to preclude a Bivens action. See Miller v.
      U.S. Dep’t. of Agric. Farm Servs. Agency, 143 F.3d 1413, 1416
      (11thCir. 1998); Maxey v. Kadrovach, 890 F.2d 73, 75-76 (8th Cir.
      1989). “[P]arties may not avoid administrative review simply by
      fashioning their attack on an [agency] decision as a constitutional tort
      claim against individual [agency] officers.” Zephyr Aviation, L.L.C. v.
      Dailey, 247 F.3d 565, 572 (5th Cir. 2001).

Sinclair, 314 F.3d at 940 (alteration in original). Here, the IGRA provides an
administrative review scheme and an express right to appeal the NIGC’s action to the
courts under the APA. The fact that the IGRA delays APA review until after the
NIGC first reviews the actions of the Chairman does not suspend the rule of Sinclair.
The Appointed Council cannot maintain a Bivens claim based on the Chairman’s
action in carrying out his duties. Accordingly, it was not error to dismiss the
Appointed Council’s Bivens action.




                                         -14-
                              III. Preliminary Injunction

        We next address the district court’s May 22 grant of a preliminary injunction
to enforce the Chairman’s temporary closure order. The United States argues that the
injunctive relief is proper because no due process violations occurred in the
consolidation and disposition of the cases and because a showing of irreparable harm
is unnecessary where the government (rather than a private party) seeks injunctive
relief to prevent the violation of a statute or administrative order. The United States
argues in the alternative that the district court accurately identified irreparable harm
and otherwise correctly applied the equitable factors under Dataphase Systems, Inc.
v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc) (listing as factors
for consideration: “(1) the threat of irreparable harm to the movant; (2) the state of the
balance between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the merits; and
(4) the public interest”). The Elected Council argues that the district court’s mootness
determination regarding its claims for limited injunctive relief demonstrates that the
district court failed to balance the harms in a manner tailored to minimize the impact
of the injunction. The Appointed Council argues that the injunction resulted from
multiple due process violations. In addition, the Appointed Council argues that the
district court abused its discretion in finding there to be irreparable harm.

       Because the IGRA does not expressly authorize district court enforcement of
the Chairman’s temporary closure order, we find that a showing of irreparable harm
is required and that Dataphase sets forth the appropriate analytical framework for this
case. In addition, we find that the district court did not abuse its discretion in finding
irreparable harm and applying the other Dataphase factors. United Indus. Corp. v.
Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (setting forth an abuse of discretion
standard for the review of Dataphase analyses). We address the issues of mootness
and the due process challenges in Sections IV and V respectively.



                                          -15-
      The United States relies on Burlington Northern Ry. Co. v. Bair, 957 F.2d 599
(8th Cir. 1992), to assert that no showing of irreparable harm is required. In
Burlington Northern, we declined to apply a balancing of the equities approach in the
analysis of a request for injunctive relief. Instead, we stated:

      [i]t is a well-established rule that where Congress expressly provides for
      injunctive relief to prevent violations of a statute, a plaintiff does not
      need to demonstrate irreparable harm to secure an injunction. In such
      situations, it is not the role of the courts to balance the equities between
      the parties. The controlling issue is whether Congress has already
      balanced the equities and has determined that, as a matter of public
      policy, an injunction should issue where the defendant is engaged in, or
      is about to engage in, any activity which the statute prohibits. The
      proper role of the courts is simply to determine whether a violation of
      the statute has or is about to occur.

Id. at 601-02 (citing United States v. City of San Francisco, 310 U.S. 16, 31 (1940);
Atchison, T. & S.F. Ry v. Lennen, 640 F.2d 255, 259-60 (10th Cir. 1981)).

       The United States concedes that Burlington Northern differs from the present
case. In Burlington Northern, the relevant statute expressly authorized injunctive
relief. The IGRA, on the other hand, does not expressly authorize the use of
injunctive relief to enforce the Chairman’s temporary closure orders. Accordingly,
we must determine whether the rule of Burlington Northern, standing alone,
authorizes the district court’s injunction against violations of the Chairman’s closure
order, or whether the absence of express statutory authority for injunctive relief
demands that support for injunctive relief exist under some other authority, such as
a broader balancing of equitable considerations.

     In Santee Sioux, we noted the absence of express statutory authority within the
IGRA for enforcement of the Chairman’s temporary closure order. 135 F.3d at 562.
We did not address the applicability of the Burlington Northern rule under the IGRA.

                                         -16-
We did, however, conclude that the United States could pursue enforcement of the
Chairman’s orders:

      [w]e cannot imagine that Congress intended to vest in the Chairman and
      the NIGC the power to assess fines against the tribal operators of the
      facilities and to order temporary closures of Indian gaming facilities
      operating in violation of the IGRA without providing for a means to
      ensure compliance with those decisions. The IGRA’s silence on the
      matter of enforcement of the Chairman’s closure orders compels our
      conclusion that the broad authority to litigate granted to the Attorney
      General under 28 U.S.C. § 516 envisions the action taken here by the
      United States Attorney to enforce, on behalf of the NIGC and the United
      States as an interested party, the Chairman’s order demanding that the
      Tribe close its gaming facility. . . . We conclude . . . that the United
      States may pursue injunctive relief to ensure the Tribes compliance with
      the Chairman’s closure order.

Santee Sioux, 135 F.3d at 562-63. After finding that injunctive relief was available,
we ultimately remanded for the district court to enter an order enjoining violations of
the Chairman’s temporary closure order. Id. at 566. In reaching that decision, we did
not rely on the simple expedient of Burlington Northern. Instead, we looked for other
authority that would support the imposition of injunctive relief. The authority we
found in Santee Sioux was a state-tribal compact that incorporated by reference a
Nebraska statute that authorized courts to enjoin gaming violations. Santee Sioux,
135 F.3d at 565.

      Based on the analysis set forth in Santee Sioux, and based on the absence of
express statutory authority like that present in Burlington Northern, we find it
necessary to look beyond the rule of Burlington Northern in our present analysis.
Here, the parties do not identify a state statute that would authorize enforcement of
the Chairman’s order. Accordingly, reliance on the balancing test of Dataphase is
appropriate for analysis of the United States’ request for equitable relief.


                                         -17-
      Applying Dataphase, we look at the public’s interest and the balance of the
harms caused by a grant of injunctive relief on the one hand, and a failure to grant
injunctive relief on the other. On these two factors, we give great weight to the fact
that Congress already declared the public’s interest and created a regulatory and
enforcement framework that balanced the need for regulation against the harm of
closure. As noted by the Supreme Court:

      [a] court sitting in equity cannot ignore the judgment of Congress,
      deliberately expressed in legislation. A district court cannot, for
      example, override Congress’ policy choice, articulated in a statute, as to
      what behavior should be prohibited. Once Congress, exercising its
      delegated powers, has decided the order of priorities in a given area, it
      is . . . for the courts to enforce them when enforcement is sought. Courts
      of equity cannot, in their discretion, reject the balance that Congress has
      struck in a statute. Their choice (unless there is statutory language to the
      contrary) is simply whether a particular means of enforcing the statute
      should be chosen over another permissible means; their choice is not
      whether enforcement is preferable to no enforcement at all.)

United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497-98 (2001)
(internal citations and quotation marks omitted).

        Here, two declared purposes of the IGRA are “to provide a statutory basis for
the operation of gaming by Indian tribes as a means of promoting tribal economic
development, self-sufficiency, and strong tribal governments” and to “provide a
statutory basis for the regulation of gaming by an Indian tribe adequate to shield it
from organized crime and other corrupting influences, to ensure that the Indian tribe
is the primary beneficiary of the gaming operation, and to assure gaming is conducted
fairly and honestly by both the operator and players.” 25 U.S.C. § 2702(1) and (2).
These statements of purpose demonstrate that Congress placed a high priority on the
control of gaming to minimize the secondary effects of gambling and to prevent the


                                         -18-
appropriation of the benefits of gaming by unrecognized groups. Congress viewed
effective regulation and respect for regulatory authority as being in the public’s
interest.

       Prior to enforcement of the closure order in this case, gaming operations had
become, effectively, unregulated. The BIA did not recognize the Appointed Council,
yet the Appointed Council had appropriated control of the gaming operations and
diverted tribal assets into new bank accounts. As such, it was no longer possible for
the NIGC to ensure that the tribe was the primary beneficiary of the gaming
operation, that gaming added to the strength of tribal government or tribal economic
development, or that gaming supported tribal self-sufficiency. Given the priority that
Congress placed on the regulation of tribal gaming, and given the breakdown of
regulatory control in the present case, the district court did not abuse its discretion in
finding that the public interest favored enforcement of the Chairman’s temporary
closure order.2

       Congress has already balanced the harm of closure against the need for
regulatory control. The statutory delegation of authority between the Chairman and
the NIGC as well as the statutory framework for administrative review illustrate this
balance. Congress desired the Chairman to have the ability to act swiftly and
effectively cure gaming violations, while at the same time being subject to oversight
by the NIGC as a whole to prevent unnecessary harm to tribes and limit the disruption
of gaming operations. See 25 U.S.C. § 2713(b)(1) (“The Chairman shall have power
to order temporary closure of an Indian game . . .”) (emphasis added); 25 U.S.C.
§ 2713(b)(2) (setting forth administrative review procedures); 25 U.S.C. §2713(c) (“A
decision by the Commission . . . to order a permanent closure . . . shall be appealable


      2
        There is nothing in the record to indicate that the Appointed Council was not
operating the casino in the best interests of the Tribe. Rather, our concern is with the
NIGC’s ability to effectively regulate gaming activities.

                                          -19-
to the appropriate Federal district court . . .”); 25 U.S.C. § 2714 (“Decisions made by
the Commission . . . shall be final agency decisions for purposes of appeal to the
appropriate Federal district court . . .”). Were we to interpret the IGRA in a manner
that would leave the Chairman unable to enforce a temporary closure order, there
would be no need for the congressionally created and balanced system of limited,
immediate action followed by administrative or judicial review. We believe,
therefore, that the only sensible reading of 25 U.S.C. § 2713(b)(1) requires that we
recognize that Congress already conducted the requisite balancing of the harm of
closure against the need for temporary enforcement of the Chairman’s closure orders.
The district court did not abuse its discretion in finding that the balance of the harms
weighed in favor granting temporary injunctive relief to enforce the Chairman’s
order.

       Turning to the issue of irreparable harm, we find no error in the district court’s
analysis. The district court concluded that irreparable harm or the threat of
irreparable harm existed in the form of “a debilitation of the NIGC’s regulatory role.”
The irreparable harm found by the district court was not merely prospective, much
less “speculative”, as argued by the Appointed Council. The irreparable harm
identified by the district court was current. The Appointed Council, at all times prior
to closure of the casino by the U.S. Marshals, ignored the authority of the NIGC
Chairman. The Appointed Council’s refusal to abide by the temporary closure order
demonstrated an immediate “debilitation of the NIGC’s regulatory role.”

       The district court also referred to a prospective type of harm, suggesting that
a failure to enforce the Chairman’s temporary closure order in this case would cause
other tribes to ignore the Chairman’s authority. The Appointed Council argues that
this reference demonstrates that the district court relied not upon actual harm or an
immediate threat of harm, but rather, the long-term, hypothetical impact that a failure
to enforce temporary closure orders might have on the ability of the Chairman and the
NIGC to regulate Indian gaming. We do not find that the district court’s reference

                                          -20-
to prospective harm detracts from the facts of the case at hand. The Appointed
Council’s own actions demonstrated the debilitation relied upon by the district court.

       Similarly, we find no abuse of discretion in the district court’s determination
that the likelihood of success on the merits weighed in favor of granting injunctive
relief. The issue before us relates solely to the enforceability of the Chairman’s
temporary closure order. Our analysis of the likelihood of success on the merits
requires neither a predictive analysis of how the NIGC might resolve the Elected
Council’s administrative appeal nor speculation regarding the possible outcomes of
the current, intra-tribal dispute. Accordingly, we need not consider the relative
strengths of the competing councils’ claims to authority. Rather, our analysis
involves the questions of whether the Chairman acted within the scope of his
statutory grant of authority, whether Congress intended the Chairman’s temporary
orders to be enforceable pending administrative review, and whether the Tribe enjoys
sovereign immunity in the regulated field of gaming.

       The IGRA grants the Chairman broad authority to fashion remedies to cure
perceived gaming violations, including the authority to order temporary closures. 25
U.S.C. § 2713(b)(i). Congress mitigated this broad grant of authority and discretion
by limiting the duration of the Chairman’s orders and making his orders subject to
review and dissolution by the NIGC as a whole. Here, the Chairman’s specific action
was within the bounds of his statutory grant of authority. Further, because the
Chairman reasonably could have perceived the Appointed Council’s appropriation
and operation of the casino as a gaming violation, the present case does not present
facts that involve wholly irrational or arbitrary and capricious action by the Chairman.
Accordingly, we cannot find that he acted outside the scope of his authority.

      The Tribe’s statutory grant of a right to conduct gaming is conditional. As
noted by the district court, “[a]ny tribe which elects to reap the benefits of gaming
authority created by the IGRA must comply with the IGRA’s requirements.” In other

                                         -21-
words, the Tribe does not enjoy sovereign immunity in matters of gaming regulation.
This is true not only generally, but also in the specific context of temporary closure
orders. See Santee Sioux, 135 F.3d at 566 (enforcing a temporary closure order after
finding that Congress intended such orders to be enforceable). Because our analysis
of the likelihood of success on the merits is a limited analysis, and because the United
States is likely to prevail on the merits against any challenges based on the scope of
the Chairman’s authority or Tribal sovereign immunity, we agree with the district
court’s conclusion that this final Dataphase factor supports enforcement of the
Chairman’s order.

       Because we find that Dataphase applies and the district court did not abuse its
discretion in the application of Dataphase, we affirm the district court’s grant of
injunctive relief. As explained below, however, we remand for the district court to
consider whether our reversal of the dismissal of the Elected Council’s intervenor
claim under the IGRA requires modification of the preliminary injunction. See, e.g.,
Nat’l Basketball Ass’n v. Minnesota Prof’l Basketball, L.P., 56 F.3d 866, 872 (8th
Cir. 1995) (noting the interlocutory nature of appeals from preliminary injunctions)
and Haz. Waste Treatment Council v. South Carolina, 945 F.2d 781, 795 (4th Cir.
1991) (remanding for the district court to consider modification of the scope of a
preliminary injunction).

           IV. Mootness of the Elected Council’s Claims as Intervenor

      In the May 22 order, after dismissing the Appointed Council’s claims and
granting the preliminary injunction, the district court dismissed the Elected Council’s
intervenor claims as moot. These claims included a state law trespass claim against
the Chairman and the Appointed Council, a claim seeking to enjoin, among other
things, illegal gaming under 25 U.S.C. § 2710(d)(7)(A)(ii), and a claim seeking to
enjoin the Chairman’s enforcement of his closure order. The Elected Council (as
intervenor) argues that the district court possessed subject matter jurisdiction to

                                         -22-
address these claims, that these claims were not moot, and that dismissal of these
claims shows that the district court improperly failed to consider the Elected
Council’s suggestions for a more limited form of injunctive relief when balancing the
harm to the litigants against the need for the injunction.

       We agree that the district court should have addressed the Elected Council’s
IGRA claim. 25 U.S.C. § 2710(d)(7)(A)(ii) expressly provides jurisdiction for the
court to enjoin illegal gaming. Id. (“The United States district courts shall have
jurisdiction over . . . any cause of action initiated by a[n] . . . Indian tribe to enjoin a
class III gaming activity located on Indian lands and conducted in violation of any
Tribal-State compact . . . that is in effect . . .”). The Elected Council articulated a
justiciable claim under § 2710(d)(7)(A)(ii). To the extent that the relief the Elected
Council sought under the IGRA may have differed from the relief granted to the
United States, the IGRA claim was not moot. Accordingly, as to the Elected
Council’s IGRA claim, we remand for further proceedings including consideration
of whether the viability of the Elected Council’s IGRA claim requires modification
of the current injunction. See Porter v. Warner Holding Co., 328 U.S. 395, 398-99
(1946) (noting that the district court may exercise all of its equitable powers in an
agency enforcement proceeding); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)
(noting that where two parties present competing claims of injury, the court may
exercise its equitable power to reach a “nice adjustment and reconciliation” between
the competing claims).3

        We disagree with the district court’s conclusion that the Elected Council’s
trespass claim and claims for relief that reached beyond the Tribe’s gaming enterprise
(e.g. claims seeking the return of Tribal government facilities to the Elected Council)


       3
        We express no opinion on the merits of this claim. We also recognize that the
dispute is very fluid and the facts as presented to the district court in May may be
significantly changed by intervening events.

                                           -23-
were moot. Many elements of the relief sought by the Elected Council through these
claims were unrelated to gaming, and, therefore, unrelated to the injunctive relief
granted to the United States. Enforcement of the Chairman’s order did not moot the
Elected Council’s claims related to Tribal accounts or Tribal government facilities.

      The fact that these claims were not moot, however, does not mean that the
federal courts have jurisdiction. Here, the non-IGRA claims are non-justiciable for
another reason. They seek a form of relief that the federal courts cannot provide,
namely, resolution of the internal tribal leadership dispute.

       Jurisdiction to resolve internal tribal disputes, interpret tribal constitutions and
laws, and issue tribal membership determinations lies with Indian tribes and not in the
district courts. See United States v. Wheeler, 435 U.S. 313, 323-36 (1978) (noting
that Indian tribes are “‘unique aggregations possessing attributes of sovereignty over
both their members and their territory’” and holding that a tribe possessed the power
to punish its members for violations of tribal laws) (quoting United States v. Kagama,
118 U.S. 375, 381 (1886)); Runs After v. United States, 766 F.2d 347, 352 (8th Cir.
1985) (holding that the district court lacked jurisdiction to resolve “disputes involving
questions of interpretation of the tribal constitution and tribal law”) (citations
omitted); Smith v. Babbitt, 100 F.3d 556, 559 (8th Cir. 1996) (holding that the district
court lacked jurisdiction to hear what, in effect, was an appeal by individuals from an
adverse tribal membership determination by a tribe). We have characterized an
election dispute concerning competing tribal councils as this type of non-justiciable
intra-tribal matter. See Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983)
(“[T]he district court overstepped the boundaries of its jurisdiction in interpreting the
tribal constitution and bylaws and addressing the merits of the election dispute.”).
We find the Goodface court’s determination that a district court lacked jurisdiction
to intervene in a tribal leadership dispute controlling.




                                           -24-
       Goodface is instructive. It was an action involving the BIA as a party. A tribal
election dispute erupted when a former tribal council refused to recognize the
authority of a newly elected tribal council. The BIA in that case ultimately
determined that the dispute was an intra-tribal dispute, that the BIA could not
intervene, and that the BIA would correspond with both councils on an interim basis
in order to provide necessary services to the tribe pending internal, tribal resolution
of the dispute. Id. at 339-40. On appeal of the BIA’s recognition decision under the
APA, the district court examined the tribal constitution and bylaws, addressed the
merits of the election dispute, determined that the newly elected council was entitled
to recognition, and issued a final order requiring the BIA to recognize the new
council. Goodface, 708 F.2d at 339-40.

       We reversed the district court’s purported final order but instructed the district
court to order the BIA to recognize the newly elected tribal council on an interim
basis. Id. at 340. In addition, we instructed the district court to not enter orders
concerning the merits of the election dispute but to defer to a final tribal
determination as to leadership. Id. We specifically found that the district court acted
without authority when it interpreted the tribal constitution and bylaws and addressed
the merits of the election dispute. Goodface, 708 F.2d at 339 (“Although we agree
with the district court that the BIA should recognize the 1982 council, at least on an
interim basis, the district court should not have addressed the merits of the election
dispute in reaching that decision.”).

       Based on Goodface, then, even if the district court was incorrect in its finding
of mootness, the district court was correct to dismiss the intervenor’s trespass and
other non-IGRA-related requests for relief. Relief unrelated to gaming could only be
granted to the extent the court could first resolve the intra-tribal dispute and
determine whether the Appointed Council was the rightful governing body of the
tribe. We therefore affirm the district court’s dismissal of the Elected Council’s non-
IGRA claims, albeit on other grounds, and remand the Elected Council’s IGRA claim

                                          -25-
to the district court for further proceedings and for consideration of whether the
viability of this claim requires modification of the injunctive relief.

                             V. Due Process Challenges

        The Appointed Council argues on due process grounds that the district court
improperly consolidated the Elected Council’s claims as intervenor and the NIGC’s
claims for injunctive relief with the Appointed Council’s own claim for injunctive
relief, thus depriving the Appointed Council of effective notice and a meaningful
hearing. The Appointed Council also argues that enforcement of the temporary
closure order was improper because the Chairman and the NIGC provided no notice
of an intent to issue a closure order and because the IGRA requires that a formal
complaint from the entire NIGC precede the enforcement of any closure order. We
reject all of these due process challenges.

      The IGRA provides that the Chairman may issue temporary closure orders on
behalf of the Commission. 25 U.S.C. § 2713(b)(1). NIGC regulations provide that,
“Simultaneously with or subsequently to the issuance of a notice of violation . . . , the
Chairman may issue an order of temporary closure . . . if one or more of the following
substantial violations are present . . . .” 25 C.F.R. § 573.6(a). By contrast, §
2713(a)(3) provides that the NIGC “shall provide” a written complaint before
ordering “permanent closure.” Accordingly, the plain text of the IGRA and the NIGC
regulations envision immediate, swift action by the Chairman. The Appointed
Council’s argument that temporary closure must be preceded by a written complaint
from the NIGC as a whole is counter to the text of the statute and regulations and
counter to the statutory scheme which provides for immediate action by the Chairman
followed by a period of administrative review. The written complaint is a separate
safeguard in place to ensure careful deliberation and expanded notice before the
imposition of a permanent remedy.



                                          -26-
       The record belies the Appointed Council’s other notice-related claims. Here,
even though not required, an NOV did precede the temporary closure order. The
NOV demanded that the Appointed Council relinquish control of the casino and, in
the section of the NOV regarding appeal, referred to the NOV as a “Notice of
Violation and Order of Temporary Closure.” Further, an April 28 letter from the
Tribe’s attorney to the Chairman demonstrates that the Tribe was informed of the
NOV and closure order before they were issued: “[w]e write . . . regarding a notice
of violation and temporary closure which we have been informed the NIGC is
considering.” In fact, the letter listed as the subject: “Threatened Temporary Closure
of Meskwaki Bingo•Casino•Hotel.” Notice of violations sufficient to warrant
closure, express reference to closure, and the Tribe’s own acknowledgment of
possible closure, therefore, preceded the Chairman’s issuance of a temporary closure
order.

       The rest of the Appointed Council’s due process argument relies on Granny
Goose Foods, Inc. v. Brotherhood of Teamsters, Local No. 70, 415 U.S. 423 (1974).
Under Granny Goose, issuance of a preliminary injunction requires reasonable notice
and a chance for the respondent party to prepare and respond. Id. at 440-43. While
it may have been preferable for the district court to delay the May 19 hearing in light
of the parties’ last minute filings, we cannot say that the consolidation of matters on
May 19 deprived the Appointed Council of reasonable notice, a meaningful hearing,
and a chance to respond. Accordingly, any error in the rapid consolidation and
disposition of the parties’ requests for immediate injunctive relief was without
prejudice.

       The Chairman issued his temporary closure order on May 12. The violations
at issue were set forth in the April NOV. The United States did not request
enforcement of the NIGC’s closure order until it became clear the Tribe would not
comply. When the United States did ask for enforcement, the issue placed before the
court was precisely the issue that the Appointed Council, itself, had placed before the

                                         -27-
court in its own action, namely, a request for a determination as to the enforceability
of the Chairman’s temporary order pending NIGC review. All that the United States’
action changed was the potential result of the May 19 proceedings, not the substance
of the issues before the court. Finally, the district court permitted the parties to file
post-hearing briefs, and, the Appointed Council, in fact, submitted a supplemental
brief. In light of the identity of issues between the consolidated matters and the
Appointed Council’s own claims, and in light of the opportunity to present post-
hearing briefs, we find any error in the rapid consolidation of these matters to have
been harmless.

                                  VI. April 15 Order

        Finally, we address the district court’s earlier, April 15 dismissal of the Elected
Council’s claims for declaratory and injunctive relief. The district court examined the
Elected Council’s requests for relief, as stated in the complaint and as described at the
first district court hearing, and determined that the Elected Council sought district
court intervention in an intra-tribal leadership dispute. The district court held that it
lacked subject matter jurisdiction to resolve such a dispute. We review the district
court’s determination as to the existence of subject matter jurisdiction de novo.
Gardner v. First Am. Title Ins. Co., 294 F.3d 991, 993 (8th Cir. 2002).

       As discussed above, we agree with the district court that jurisdiction does not
exist to resolve an intra-tribal leadership dispute. Therefore, our review entails
examination of the specific, technical allegations of jurisdiction to ensure that the
district court appropriately characterized the actions complained of, and the relief
requested, as intra-tribal disputes rather than disputes concerning issues over which
jurisdiction would have been proper, namely, gaming regulation, other matters subject
to federal regulation, or intergovernmental relations.




                                           -28-
        The Elected Council’s complaint contains no reference to § 2710(d)(7)(A)(ii),
but does make general reference to the IGRA. The district court correctly determined
that the IGRA provides no general private right of action. Hartman v. Kickapoo
Tribe Gaming Comm’n, 319 F.3d 1230, 1233 (10th Cir. 2003) (citing Tamiami
Partners, Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1049 (11th Cir. 1995));
Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1260 (9th
Cir. 2000)). As discussed in Section IV, supra, however, the IGRA provides a
specific right of action to enjoin illegal gaming. 25 U.S.C. § 2710(d)(7)(A)(ii). Our
review of the complaint and the transcript of the first district court hearing as well as
our own search for legal authority to fit the allegations of the Elected Council’s
complaint convinces us that the only possible basis that might support jurisdiction
over the Elected Council’s claims on the present facts would be § 2710(d)(7)(A)(ii).
See Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974) (“[A] complaint should not
be dismissed merely because [the] allegations do not support the particular legal
theory [advanced], for the court is under a duty to examine the complaint to determine
if the allegations provide for relief on any possible theory.”) (citation omitted).
Because we already determined that the Elected Council’s intervenor claims raised
a justiciable issue under §2710(d)(7)(A)(ii), however, we need not decide whether the
Elected Council’s earlier-filed action also raised such claims.

      The Elected Council also asserted two requests for injunctive relief under
RICO. 18 U.S.C. § 1964 provides jurisdiction over civil actions brought by
aggrieved parties to prevent or restrain racketeering activity as defined under 18
U.S.C. § 1962(c). Section 1962(c) states:

      It shall be unlawful for any person employed by or associated with any
      enterprise engaged in, or the activities of which affect, interstate or
      foreign commerce, to conduct or participate, directly or indirectly, in the
      conduct of such enterprise’s affairs through a pattern of racketeering
      activity or collection of unlawful debt.


                                          -29-
       To state a claim under § 1962(c), a plaintiff must establish (1) the existence of
an enterprise; (2) conduct by the defendants in association with the enterprise; (3) the
defendants’ participation in at least two predicate acts of racketeering; and
(4) conduct that constitutes a pattern of racketeering activity. United Healthcare
Corp. v. American Trade Ins. Co., 88 F.3d 563, 570 (8th Cir. 1996). The district
court found that the predicate violations alleged by the Elected Council could not be
considered qualifying predicate violations unless the court first concluded that the
Appointed Council was not the lawful governing body of the Tribe. In the
alternative, we note that to define the Appointed Council as an “enterprise” separate
from the Tribe itself we would first have to conclude that the Appointed Council does
not, in fact, represent the Tribe. The district court lacked subject matter jurisdiction
to decide these underlying, intra-tribal matters. We therefore agree that the district
court lacked subject matter jurisdiction over the Elected Council’s claims and affirm
the district court’s April 15 order.

      In summary, we:

      (1)    affirm the district court’s May 22 dismissal of the Appointed Council’s
             claims for failure to exhaust administrative remedies;

      (2)    affirm the district court’s May 22 enforcement of the Chairman’s
             temporary closure order;

      (3)    reverse the district court’s May 22 dismissal of the Elected Council’s
             intervenor claim under 25 U.S.C. § 2710(d)(7)(A)(ii);

      (4)    affirm the district court’s May 22 dismissal of the Elected Council’s
             remaining claims;

      (5)    affirm the district court’s April 15 dismissal of the Elected Council’s
             claims.

                                         -30-
       We remand to the district court for further proceedings consistent with this
opinion including reconsideration of the scope of injunctive relief in light of our
reinstatement of the Elected Council’s IGRA claim.

A true copy.

    Attest:

              CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -31-
