                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                         PUBLISH
                                                                        December 22, 2014
                          UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                 FOR THE TENTH CIRCUIT
                             _________________________________



STATE OF OKLAHOMA, EX REL.,

       Plaintiff - Appellee,

v.                                                        No. 12-5134

TIGER HOBIA, as Town King and
member of the Kialegee Tribal Town
Business Committee, et al.,

       Defendants - Appellants,

and

FLORENCE DEVELOPMENT
PARTNERS, LLC, as Oklahoma limited
liability company,

       Defendant.

------------------------------

THE STATE OF NEW MEXICO, et al.,

       Amici Curiae.

______________________________

STATE OF OKLAHOMA, EX REL.,

        Plaintiff – Appellee

v.
FLORENCE DEVELOPMENT
PARTNERS, LLC, an Oklahoma limited
liability company,
                                                              No. 12-5136
        Defendant – Appellant,

and

TIGER HOBIA, as Town King and
member of the Kialegee Tribal Town
Business Committee; THOMAS GIVENS,
as 1st Warrior and member of the Kialegee
Tribal Town Business Committee;
KIALEGEE TRIBAL TOWN, a federally
chartered corporation,

        Defendants.

--------------------------------

THE STATE OF NEW MEXICO; STATE
OF MICHIGAN,

        Amici Curiae.
                             _________________________________

                                          ORDER
                             _________________________________

Before BRISCOE, Chief Judge, KELLY and BACHARACH, Circuit Judges.
                    _________________________________

        These matters are before the court on the State of Oklahoma’s Petition for

Rehearing or Rehearing En Banc. We grant panel rehearing to the extent of the

amendments made to the revised Opinion attached to this order. The clerk of court is

directed to vacate the decision issued originally on November 10, 2014 and to reissue the

attached version.
       The Petition for Rehearing or Rehearing En Banc, as well as the newly revised

Opinion, were also transmitted to all of the judges of the court who are in regular active

service and who are not recused. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, the request for en banc

review is denied.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                                 3
                                                            FILED
                                                United States Court of Appeals
                                                        Tenth Circuit

                                                    December 22, 2014
                                  PUBLISH          Elisabeth A. Shumaker
                                                       Clerk of Court
                      UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



STATE OF OKLAHOMA, EX REL.,

       Plaintiff-Appellee,

v.                                            No. 12-5134
TIGER HOBIA, as Town King and
member of the Kialegee Tribal Town
Business Committee; THOMAS
GIVENS, as 1st Warrior and member
of the Kialegee Tribal Town Business
Committee; KIALEGEE TRIBAL
TOWN, a federally chartered
corporation,

         Defendants-Appellants,

and

FLORENCE DEVELOPMENT
PARTNERS, LLC, an Oklahoma
limited liability company,

           Defendant.
.......................

THE STATE OF NEW MEXICO;
STATE OF MICHIGAN,

         Amici Curiae.
 STATE OF OKLAHOMA, EX REL.,

        Plaintiff-Appellee,

v.                                                  No. 12-5136
FLORENCE DEVELOPMENT
PARTNERS, LLC, an Oklahoma
limited liability company,

        Defendant-Appellant,

and

TIGER HOBIA, as Town King and
member of the Kialegee Tribal Town
Business Committee; THOMAS
GIVENS, as 1st Warrior and member
of the Kialegee Tribal Town Business
Committee; KIALEGEE TRIBAL
TOWN, a federally chartered
corporation,

           Defendants.
.......................

THE STATE OF NEW MEXICO;
STATE OF MICHIGAN,

        Amici Curiae.



         APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE NORTHERN DISTRICT OF OKLAHOMA
                    (D.C. No. 4:CV-12-00054-F)


Matthew Justin Kelly of Fredericks Peebles & Morgan LLP, Washington, DC,
(Martha L. King of Fredericks Peebles & Morgan LLP, Louisville, Colorado;

                                       2
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 (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 complaint alleges that the challenged class III gaming activity is

                                          3
occurring somewhere other than on “Indian lands” as defined in IGRA, 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 a parcel of land in Broken Arrow,

Oklahoma, that was neither owned nor governed by the Tribal Town, 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.




                                          4
                                          I

                                Factual background

      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

                                          5
OIWA, approved by the Secretary of the Interior on July 23, 1942, and ratified by

the Tribe 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).




                                          6
      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 Place, in Broken Arrow, Oklahoma,” id. at 30.

      e) The location of the gaming facility

      The property on which the gaming facility was being built (the Property) is

located more than 70 miles away from the Tribe’s headquarters and is not held in

trust by the United States for the Tribe. Instead, at the time the construction

began, the Property was “owned by [sisters] Wynema Capps and Marcella Gibbs,

as tenants in common, subject to federal restraints against alienation.” Id. at 32.

Both Capps and Giles were enrolled members of the Muscogee (Creek) Nation.

      The ownership of the Property can be traced to Tyler Burgess, an enrolled

Creek Indian of full blood. “In 1901, the Creek Nation and the United States

entered into [an] agreement governing the allotment of the Creek Nation’s lands.”

Add at 35. “Under Section 23 of the 1901 agreement, the Principal Chief of the

Muskogee Nation was to execute and deliver to each citizen of the Muskogee

Nation an allotment deed conveying to him all right, title, and interest of the

Creek Nation and of all other citizens in and to the lands embraced in his

allotment certificate.” Id. (internal quotation marks omitted). “On August 6,


                                          7
1903, as part of the allotment of those lands, an allotment deed and homestead

patent [for 160 acres] were issued to Tyler Burgess.” Id. Burgess was not a

member of the Tribe, but rather was an enrolled member of Lochapoka Town (a

division of the Creek Nation).

       Burgess’s allotted land subsequently passed by descent to two heirs: Capps

and Giles. Capps and Giles hold the land as tenants in common, subject to federal

restrictions and restraints against alienation. The land encompasses the Property

at issue.

       The Property is not held in trust by the United States for the Tribe or for

the benefit of any enrolled member of the Tribe. And, as of May 18, 2012 (the

date of the preliminary injunction hearing held by the district court in this case),

the Property was not held by either the Tribe or an enrolled member of the Tribe

subject to restriction by the United States against alienation.

       f) The leases of the Property

       In May 2010, the Town Corporation, “as Tenant, executed a Prime Ground

Lease with Capps and Giles, as Landlord, for the . . . Property as a site for a

proposed casino facility.” Id. at 40. Capps and Giles subsequently filed a

petition in Oklahoma state district court seeking approval, pursuant to the Act of

August 4, 1947, 61 Stat. 731, of the proposed Prime Ground Lease. On August

17, 2011, the state district court entered an order withholding its approval of the

Prime Ground Lease. In doing so, the state district court noted “that it was not

                                           8
the appropriate forum to resolve intertribal jurisdictional disputes between the

Muscogee (Creek) Nation and the [Tribe], and concluded that an individual

citizen cannot transfer government jurisdiction over his or her property by the

terms of a lease.” Add. at 40 (internal quotation marks omitted).

      “In the meantime, on May 10, 2011, Capps and Giles, as Landlord, entered

into a separate Ground Lease Agreement with Defendant Florence Development

. . . as Tenant, pertaining to the . . . Property” (the May 2011 Lease). Id. at 41.

“On approximately December 1, 2011, the May 2011 Lease was amended by a

First Amendment to Ground Lease Agreement . . . to add the [Tribe] as a

signatory party.” Id.

      The May 2011 Lease “was written to have a term of six year[s] and 11

months so it would not have to be approved by the Secretary of the Interior or his

designee.” Id. But the May 2011 Lease purported to grant Florence Development

the right to extend the term of the lease for four periods of ten years each. Id.

      g) The operating agreement and ensuing construction

      In May 2011, the Tribe, Giles, Capps, and Golden Canyon Partners, LLC,

“entered into the Operating Agreement of Florence Development . . . to create a

joint venture to build and operate the Red Clay Casino.” Id. at 42.

      In December 2011, defendants proceeded with actual construction of the

casino on the Property by commencing grading and site preparation. By May

2012, “the structure was up and the inside sprinkler systems were in place.” Id.

                                           9
         h) The National Indian Gaming Commission’s decision

         In April 2011, the Tribe sent the National Indian Gaming Commission

(NIGC) notice of the Tribe’s intent to license a new gaming facility on the

Property. The Tribe’s purpose in doing so was to obtain a decision from the

NIGC regarding “the gaming-eligible status of the . . . Property.” Aplt. Supp. Br.

at 10.

         On May 24, 2012, the NIGC’s general counsel issued a memorandum to the

NIGC’s chairwoman opining that the Property did not qualify as the Tribe’s

Indian lands eligible for gaming because the Tribe had not established that it had

legal jurisdiction over the Property for purposes of IGRA. The following day,

May 25, 2012, the NIGC’s chairwoman sent the Tribe a letter adopting the

general counsel’s opinion. The letter stated that if gaming was commenced by the

Tribe on the Property, the chairwoman would exercise her enforcement authority

under 25 U.S.C. § 2713 to issue a notice of violation and temporary closure order.

         The Tribe requested reconsideration, which the chairwoman denied.

                                 Procedural background

         a) The district court proceedings

         The State initiated this action on February 8, 2012, by filing a complaint in

federal district court against Tiger Hobia, Thomas Givens, other unnamed

members of the Kialegee Tribal Town Business Committee (all in their capacities

as members and officers of the Business Committee), Florence Development, and

                                             10
the Town Corporation. The complaint sought “declaratory and injunctive relief to

prevent Defendants . . . from proceeding with construction or operation of the

proposed ‘Red Clay Casino,’ in direct violation of both” the Tribal-State Gaming

Compact and IGRA. App. at 22. In describing the Property on which the casino

was being built, the complaint alleged that it was owned by “enrolled member[s]

of the Muscogee (Creek) Nation,” id. at 32, was “not within the limits of an

Indian reservation within the meaning of IGRA,” id., was “not held in trust by the

United States for the benefit of the” Tribe, id., or “an enrolled member of the”

Tribe, id. at 33, was “not held by either the . . . Trib[e] . . . or an enrolled member

of the . . . Trib[e] . . . subject to restriction by the United States against

alienation,” id., and that the “Trib[e] . . . d[id] not have a possessory interest in”

or “exercise[] governmental power” over the Property, id. Based upon these

alleged attributes, the complaint in turn alleged that the “Property d[id] not meet

the definition of ‘Indian land’ . . . as required by the IGRA.” Id. at 13; see id.

(“the Property is not ‘Indian lands, as required by IGRA, 25 U.S.C. §2703(4)(A),

nor is it, with respect to the . . . Trib[e] . . . ‘its Indian lands,’ as required by the .

. . Gaming Compact”).

       The “First Claim for Relief” in the complaint alleged that the State was

“entitled to a declaratory judgment that the Committee Defendants lack[ed]

authority under federal law and the federally approved [Tribal-]State Gaming

Compact to construct or operate a gaming facility on the . . . Property.” Id. at 36.

                                             11
The “Second Claim for Relief” alleged that the State was “entitled to a

declaratory judgment that (i) the . . . Property [wa]s not land within the [Tribe’s]

jurisdiction and [wa]s not land over which the [Tribe] exercise[d] governmental

power and (ii) the Defendants’ efforts to construct or operate a [c]lass III gaming

facility on the . . . Property [wa]s in direct violation of the requirements of the

IGRA and the [Tribal-]State Gaming Compact.” Id. at 38-39. The “Third Claim

for Relief” sought a preliminary injunction “restraining the continued

construction and proposed operation of an illegal, unauthorized gaming facility”

on the Property. Id. at 39. Lastly, the “Fourth Claim for Relief” sought both a

preliminary and permanent injunction “restraining the Defendants from

proceeding with the construction or operation of the proposed Casino.” Id. at 40.

      Along with its complaint, the State filed a motion for preliminary

injunction asking the district court to enjoin defendants from taking any action to

construct or to operate a class III gaming facility on the Property.

      Defendants moved to dismiss the complaint on a number of grounds,

including Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief

could be granted. The district court, however, denied defendants’ motions.

      On May 18, 2012, the district court held an evidentiary hearing on the

State’s motion for preliminary injunction and, at the conclusion of the hearing,

orally granted the State’s motion. On July 20, 2012, the district court followed up

its oral ruling and issued an opinion and order preliminarily enjoining defendants

                                           12
from “proceeding with development or construction of the proposed Red Clay

Casino or any other gaming facility on the . . . Property . . . [and from]

conducting [c]lass III gaming on the . . . Property.” Id. at 539.

      Defendants moved to reconsider or modify the preliminary injunction. In

support of their request to reconsider, defendants alleged that in May 2012, Giles

and Capps applied for and were granted membership in the Tribe, and that, as a

result, the Tribe had a direct interest in the Property. As an alternative to

reconsideration, defendants asked the district court to modify the preliminary

injunction to allow them to continue construction of buildings on the Property for

use as a sports bar or restaurant. The district court denied defendants’ motion to

reconsider, but granted in part their motion to modify.

      Defendants subsequently appealed.

      b) Appellate proceedings

      On September 5, 2013, we abated these appeals pending the Supreme

Court’s resolution of Bay Mills. On May 30, 2014, the State submitted a status

report noting that the Supreme Court had decided Bay Mills on May 27, 2014.

Later that same day, and in response to the State’s status report, we directed the

parties to submit supplemental briefs addressing two issues: (1) whether these

proceedings had been rendered moot by the NIGC chairwoman’s determination

that the Tribe lacked jurisdiction to conduct gaming on the Property; and (2) the

impact of the Supreme Court’s Bay Mills decision on these proceedings. The

                                          13
parties have since complied with our order.

                                          II

                                      Mootness

      We turn first to the question of whether this case was rendered moot by the

NIGC chairwoman’s May 25, 2012 letter determining that the Tribe lacked

jurisdiction over the Property to conduct gaming pursuant to IGRA. A case

becomes constitutionally moot when the parties no longer have a legally

recognizable interest in the result. City of Erie v. Pap’s A.M., 529 U.S. 277, 287

(2000). In other words, “[c]onstitutional mootness doctrine is grounded in the

Article III requirement that federal courts may only decide actual, ongoing cases

or controversies.” Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming

Comm’n, 327 F.3d 1019, 1028 (10th Cir. 2003) (internal quotation marks and

brackets omitted). “[T]he conditions under which a suit will be found

constitutionally moot are stringent.” Id. (internal quotation marks omitted).

      After carefully examining the chairwoman’s letter to the Tribe, we are not

persuaded that it necessarily prevented the wrongful behavior alleged by the State

in its complaint from occurring. Without question, the letter concluded that the

Property was ineligible for gaming by the Tribe pursuant to IGRA. But the letter

did not constitute “final agency action” under IGRA. See 25 U.S.C. § 2714

(defining what constitutes “final agency action” under IGRA). Indeed, the letter

itself anticipated the possibility of future agency action by advising the Tribe that

                                          14
if it commenced gaming on the Property, the chairwoman would exercise her

enforcement authority under 25 U.S.C. § 2713 and issue a notice of violation and

temporary closure order. 1

      Section 2713(b) of IGRA addresses “[t]emporary closure” orders and

provides that, “[n]ot later than thirty days after the issuance by the Chairman of

an order of temporary closure, the Indian tribe . . . involved shall have a right to a

hearing before the Commission to determine whether such order should be made

permanent or dissolved.” 25 U.S.C. § 2713(b)(2). Section 2713(c) in turn

provides that “[a] decision of the Commission . . . to order a permanent closure

pursuant to this section shall be appealable to the appropriate Federal district

court.” 25 U.S.C. § 2713(c).

      Thus, in sum, the chairwoman’s letter anticipated the possibility of future

wrongful conduct on the part of the Tribe, i.e., conducting gaming on the

Property, and in turn future agency action, i.e., a hearing before the Commission

and a final decision as to whether to permanently close the Tribe’s gaming facility

on the Property. As a result, we cannot characterize the chairwoman’s letter as a

“final agency decision,” nor can we say that the letter rendered the State’s claims

      1
         Although the letter discussed the requirements for gaming under 25
U.S.C. § 2710, we do not believe that the letter can be read as an exercise of the
chairwoman’s authority under that section. More specifically, the letter did not
involve the approval of any proposed tribal ordinance or resolution authorizing
class III gaming activities on the Property, or a tribal-state gaming compact. See
25 U.S.C. §§ 2710(d)(1)(A)(iii), (d)(2)(B), (d)(8). Nor, clearly, did the letter
concern the chairwoman’s authority under 25 U.S.C. §§ 2711 or 2712.

                                          15
in this case moot.

               The impact of the Supreme Court’s Bay Mills decision

      Having concluded that the case is not moot, we turn to the other question

that we asked the parties to address in their supplemental briefs: the impact of the

Supreme Court’s recent decision in Bay Mills on the State’s claims in this case.

Although the State suggests that Bay Mills supports its claims and the district

court’s decision to grant a preliminary injunction in the State’s favor, our own

review of Bay Mills persuades us otherwise. As we shall proceed to explain, we

conclude that in light of Bay Mills, the complaint in this case failed to state a

claim upon which relief could be granted and, consequently, the district court

erred in granting a preliminary injunction in favor of the State.

      a) IGRA and class III gaming activities

      To set the stage for examining Bay Mills, we begin by briefly outlining

certain key provisions of IGRA relating to class III gaming activities conducted

by tribes. Section 2710(d) of IGRA provides that “[c]lass III gaming activities

shall be lawful on Indian lands” if certain specified conditions are met. 25 U.S.C.

§ 2710(d)(1). Among those conditions is a requirement that such class III gaming

be “conducted in conformance with a Tribal-State compact entered into by the

Indian tribe and the State” pursuant to the provisions of IGRA. Id.

§ 2710(d)(1)(C). Section 2710(d) also makes clear that an Indian tribe must

“hav[e] jurisdiction over the Indian lands upon which” it seeks to conduct class

                                          16
III gaming activities. Id. § 2710(d)(3)(A).

      Consistent with its authorization of class III gaming on Indian lands over

which an Indian tribe has jurisdiction, IGRA provides that “[t]he United States

district courts shall have jurisdiction over . . . any cause of action initiated by a

State or Indian tribe to enjoin a class III gaming activity located on Indian lands

and conducted in violation of any Tribal-State compact entered into” pursuant to

IGRA. 2 25 U.S.C. § 2710(d)(7)(A)(ii). Necessarily, this authorization includes a

waiver of a defendant tribe’s sovereign immunity. See Bay Mills, 134 S.Ct. at

2029 n.2, 2032.

      b) The holding in Bay Mills

      In Bay Mills, the State of Michigan filed a federal suit against Bay Mills

Indian Community (Bay Mills), a federally recognized Indian Tribe, seeking to

enjoin the tribe from operating a class III gaming facility located on land separate

from, and not part of, the tribe’s reservation. The district court issued a

preliminary injunction against Bay Mills. Bay Mills, in compliance with the

preliminary injunction, shut down the casino and then filed an interlocutory

appeal. The Sixth Circuit vacated the injunction, holding that tribal sovereign

immunity barred Michigan’s suit against Bay Mills and that IGRA did not

authorize the action. The Supreme Court granted certiorari to consider whether


      2
        The State’s complaint in this case expressly relies on § 2710(d)(7) as a
basis for its claims. App. at 26.

                                           17
tribal sovereign immunity barred Michigan’s suit against Bay Mills.

      In a 5-4 decision, the Supreme Court affirmed the Sixth Circuit’s decision.

In doing so, the Court began by noting that “Indian tribes are domestic dependent

nations that exercise inherent sovereign authority” and possess “common-law

immunity from suit traditionally enjoyed by sovereign powers.” 134 S.Ct. at

2030 (internal quotation marks omitted). As a result, the Court held, “[u]nless

Congress . . . authorized Michigan’s suit, [Supreme Court] precedents demand[ed]

that it be dismissed.” Id. at 2032. Although Michigan argued “that IGRA indeed

abrogate[d] the Tribe’s immunity from the State’s suit,” the Court disagreed. Id.

To be sure, the Court concluded that “IGRA partially abrogates tribal sovereign

immunity in § 2710(d)(7)(A)(ii)[, by] . . . authoriz[ing] a State to sue a tribe to

‘enjoin a class III gaming activity located on Indian lands and conducted in

violation of any Tribal-State compact.’” Id. (quoting IGRA). The Court

emphasized, however, that “[a] State’s suit to enjoin gaming activity on Indian

lands . . . falls within § 2710(d)(7)(A)(ii); a similar suit to stop gaming activity

off Indian lands does not.” Id. (emphasis in original). And, although the State

argued that the tribe’s actions in “authoriz[ing], licens[ing], and operat[ing] th[e]

casino from within its own reservation” constituted class III gaming activity, the

Court disagreed. Id. (internal quotation marks omitted). Instead, the Court held,

“numerous provisions of IGRA show that ‘class III gaming activity’ means just

what it sounds like—the stuff involved in playing class III games.” Id.

                                           18
Consequently, the Court held, Michigan’s suit to enjoin gaming outside of the

tribe’s reservation fell “outside § 2710(d)(7)(A)(ii)’s abrogation of immunity.”

Id.

      The Court emphasized that, even though “a State lacks the ability to sue a

tribe for illegal gaming when that activity occurs off the reservation, . . . a State,

on its own lands, has many other powers over tribal gaming that it does not

possess (absent consent) in Indian territory.” Id. at 2034. For example, the Court

noted, “Michigan could, in the first instance, deny a license to [the tribe] for an

off-reservation casino.” Id. at 2035. “And if [the tribe] went ahead anyway,” the

Court noted, “Michigan could bring suit against tribal officials or employees

(rather than the Tribe itself) seeking an injunction for, say, gambling without a

license.” Id. Under Ex parte Young, 209 U.S. 123 (1908), the Court noted,

“tribal immunity does not bar such a suit for injunctive relief against individuals,

including tribal officers, responsible for unlawful conduct.” Id. (emphasis in

original). In addition, the Court noted, “if a State really wants to sue a tribe for

gaming outside Indian lands, the State need only bargain for a waiver of

immunity.” Id. Indeed, the Court noted, IGRA expressly provides that “a State

and tribe negotiating a compact ‘may include . . . remedies for breach of

contract,’ 25 U.S.C. § 2710(d)(3)(C)(v)—including a provision allowing the State

to bring an action against the tribe in the circumstances presented here.” Id.

“States,” the Court emphasized, “have more than enough leverage to obtain such

                                           19
terms because a tribe cannot conduct class III gaming on its lands without a

compact, see § 2710(d)(1)(C), and cannot sue to enforce a State’s duty to

negotiate a compact in good faith.” Id.

        c) The parties’ positions regarding Bay Mills

        In their supplemental briefs, the parties disagree on the impact of Bay Mills

on this case. The State argues that Bay Mills “fully supports the district court’s

rulings in this case because the Supreme Court affirmed that (1) 28 U.S.C. § 1331

provides subject matter jurisdiction for a claim arising under [IGRA], and (2)

tribal sovereign immunity does not bar claims against individual tribal officials

under the doctrine of Ex parte Young.” Aplee. Supp. Br. at 1. In contrast,

defendants argue that Bay Mills “requires remand with instructions to vacate the

preliminary injunction and dismiss the complaint in this action.” Aplt. Supp. Br.

at 2.

        Turning first to the State’s arguments, it is true that the Supreme Court in

Bay Mills held that “[t]he general federal-question statute, 28 U.S.C. § 1331,

gives a district court subject matter jurisdiction to decide any claim alleging a

violation of IGRA,” and that “[n]othing in [IGRA] § 2710(d)(7)(A)(ii) or any

other provision of IGRA limits that grant of jurisdiction.” Bay Mills, 134 S.Ct. at

2029 n.2. Thus, there can be no doubt that the district court had subject matter

jurisdiction over the State’s claim in this case that defendants violated IGRA.

        What the State chooses to ignore, however, is the Supreme Court’s related

                                           20
note that the provisions of IGRA “may indicate that a party has no statutory right

of action.” Id. And that, we conclude, is precisely the situation here. Although

the State’s complaint alleges that defendants’ efforts to conduct class III gaming

violated IGRA because they occurred off Indian lands, 3 the fact of the matter is,

as Bay Mills clearly held, that IGRA is concerned only with class III gaming on

Indian lands. Id. at 2032 (“A State’s suit to enjoin gaming activity on Indian

lands . . . falls within § 2710(d)(7)(A)(ii); a similar suit to stop gaming activity

off Indian lands does not.”) (emphasis in original). Consequently, the State’s

complaint in this case, like the State of Michigan’s complaint in Bay Mills, fails

on its face to state a valid claim for relief under IGRA.

      To be sure, the State’s complaint also asserts that the defendants’ activities

in seeking to conduct class III gaming on the Property violated the provisions of

the Tribal-State Gaming Compact. And, the State argues, Bay Mills makes clear

that, consistent with the doctrine of Ex parte Young, tribal sovereign immunity

does not bar claims against individual tribal officials. But the State again ignores

two important points. First, when the Supreme Court in Bay Mills discussed the

Ex parte Young doctrine, it did so in the context of noting that “Michigan could

bring suit against tribal officials or employees (rather than the Tribe itself)

seeking an injunction for” violations of Michigan state law, such as “gambling


      3
       As we have noted, the State’s complaint specifically alleged that the
Property at issue did not qualify as the Tribe’s “Indian lands” under IGRA.

                                          21
without a license.” Bay Mills, 134 S.Ct. at 2035. Notably, the Supreme Court

did not discuss whether a state could file suit against individual tribal officers for

violating an IGRA-mandated tribal-state gaming compact. Second, in any event,

the Tribal-State Gaming Compact at issue in this case effectively forbids such a

suit. Part 12 of the Tribal-State Gaming Compact strictly limits the remedies

available “[i]n the event that either party to this Compact believes that the other

party has failed to comply with any requirement of this Compact.” App. at 715.

Specifically, Part 12 provides that “either party may refer a dispute arising under

this Compact to arbitration under the rules of the American Arbitration

Association . . . , subject to enforcement or pursuant to review as provided by

paragraph 3 of this Part by a federal district court.” Id. Thus, the State is clearly

precluded by Part 12 from suing the defendant tribal officials in federal court for

purported violations of the Tribal-State Gaming Compact. 4

      For these reasons, we conclude the district court erred in granting the

State’s motion for preliminary injunction and that the State’s complaint fails to

state a claim upon which relief can be granted.



      4
        This was also the case in Bay Mills, where the compact at issue, “instead
of authorizing judicial remedies, sen[t] disputes to arbitration and expressly
retain[ed] each party’s sovereign immunity.” Bay Mills, 134 S.Ct. at 2035. The
Supreme Court emphasized that “Michigan—like any State—could have insisted
on a different deal.” Id. The same holds true here: the State of Oklahoma could
have insisted on a compact that allowed it to sue the Tribe or tribal officials in
federal court for violations of the compact, but it failed to do so.

                                          22
                                         III

      We REVERSE and REMAND to the district court with instructions to

vacate its preliminary injunction and to dismiss the State’s complaint with

prejudice. 5 The State’s motion to strike non-record materials from the appendix

and the State’s motion for leave to file surreply are DENIED as moot.




      5
        We emphasize that our holding does not, of course, leave the Tribe free to
proceed with class III gaming activities on the Property. The NIGC
chairwoman’s May 25, 2012 letter to the Tribe, though not “final agency action,”
effectively prohibits the Tribe from conducting class III gaming activities on the
Property. And the State, to the extent it believes the Tribe is violating the Tribal-
State Gaming Compact, remains free to resolve its concerns by way of arbitration.

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