[00:00:00] Speaker 02:
24-6221, Comanche Nation versus Ware.

[00:00:06] Speaker 02:
Mr. Carter, you may proceed.

[00:00:10] Speaker 03:
I may have pleased the court.

[00:00:12] Speaker 03:
My name is Daniel Carter, and I represent the appellants, the Fort Sill Apache tribal officials.

[00:00:17] Speaker 03:
I'd like to reserve four minutes for rebuttal.

[00:00:20] Speaker 03:
Comanche Nation's action to shut down the Fort Sill Apache Tribes Casino is barred by sovereign immunity.

[00:00:26] Speaker 03:
Each of Comanche's three theories for circumventing sovereign immunity fell

[00:00:30] Speaker 03:
because one, the Indian Gaming Regulatory Act, or IGRA, does not abrogate tribal immunity for this type of claim.

[00:00:38] Speaker 03:
Second, ex parte young is unavailable here because, among other reasons, express statutory remedies in IGRA and RICO bar its use.

[00:00:48] Speaker 03:
And third, the tribe is the real party in interest, so even individual capacity claims are barred.

[00:00:55] Speaker 03:
The district court's order permitting two claims to proceed

[00:00:58] Speaker 03:
should be reversed, in this case, dismissed in full.

[00:01:03] Speaker 03:
Starting with the first point, there's no abrogation of sovereign immunity for Comanche's claims in the IGRA.

[00:01:11] Speaker 03:
Comanche invokes 2710D7A2, but that provision applies only when the gaming occurs on Indian lands, there's a violation of the Tribal State Gaming Compact, and the relief sought is to enjoin Class III gaming.

[00:01:26] Speaker 03:
To avoid the Indian lands limitation, Comanche argues that the gaming occurs on Indian lands of another tribe, the Kiowa tribe.

[00:01:34] Speaker 03:
But that argument fails.

[00:01:37] Speaker 03:
This land has been held in trust for the Fort Sill Apache tribe since 2001.

[00:01:40] Speaker 03:
And Comanche did not challenge that acquisition for almost 20 years later until they filed this claim.

[00:01:48] Speaker 03:
The district court correctly rejected Comanche's claims and dismissed the claims and the federal defendants as a result.

[00:01:56] Speaker 03:
This case is on all fours with Bay Mills, which held that if an argument or a claim argues that the game occurs outside of Indian lands, that there's no abrogation of immunity.

[00:02:12] Speaker 00:
What I don't understand, Mr. Carter, is you're saying it is Indian land.

[00:02:17] Speaker 00:
It's the Apache's Indian land.

[00:02:20] Speaker 03:
Yes, Your Honor.

[00:02:21] Speaker 03:
It is the Apache's Indian lands.

[00:02:23] Speaker 03:
But if it's the Apache's Indian lands, Comanche is not making a claim that it's in violation of the IGRA.

[00:02:28] Speaker 00:
They may lose on the merits, but I don't understand why that would vitiate their reliance on IGRA as an abrogation of tribal immunity.

[00:02:39] Speaker 03:
Well, there's another reason why it does not fit in that abrogation.

[00:02:44] Speaker 03:
That's because there has to be a violation of the Tribal State Gaming Compact.

[00:02:48] Speaker 03:
And without a violation of the Compact,

[00:02:51] Speaker 03:
then there's no aggregation of immunity.

[00:02:54] Speaker 02:
That's kind of circular.

[00:02:56] Speaker 02:
That seems to say any claim under IGRA, there's not jurisdiction for any claim under IGRA except correct claims, valid claims, because the claim under IGRA has been violation of a compact.

[00:03:12] Speaker 02:
And if there wasn't a violation of compact, then, hold on, I'm gonna get this backwards.

[00:03:21] Speaker 02:
I'm going to assume that you know what I'm trying to say and respond because, uh, yes, you are.

[00:03:29] Speaker 03:
So the court held that.

[00:03:31] Speaker 03:
A claim that the game is not occurring on Indian lands falls outside of the, there could be a violation that falls within the, if the claim falls on Indian lands, and it's in violation of the Indian game regulatory act and the compact.

[00:03:47] Speaker 03:
So, it envisions.

[00:03:49] Speaker 03:
States and tribes having class 3 gaming compacts and it allows a state to suit a tribe for violation of that compact and for a tribe to see a state in violation of that compact.

[00:04:01] Speaker 03:
The reason it sounds circular is because it doesn't envision.

[00:04:05] Speaker 03:
third party claims against tribes, or tribes against another tribe.

[00:04:09] Speaker 01:
Well, Comanche argues that you're running an illegal casino, and that's injuring them.

[00:04:16] Speaker 01:
And that casino violates IGRA, or the state-tribe compact.

[00:04:25] Speaker 01:
And doesn't the statute basically say any tribe can sue over the violation of a contract?

[00:04:35] Speaker 01:
And they do have to show an injury, but haven't they plausibly alleged in the complaint an injury that's caused by the operation of the casino?

[00:04:45] Speaker 01:
So what am I getting wrong about that?

[00:04:48] Speaker 01:
Why does the statute exclude Comanche from pursuing this claim?

[00:04:52] Speaker 03:
Because 2710D782 only permits claims in violation of a compact.

[00:05:00] Speaker 03:
If Comanche's claims are correct,

[00:05:03] Speaker 03:
that it is the Kiowa tribe that owns these lands, then it falls outside the compact entirely.

[00:05:10] Speaker 03:
And that's this course decision, Oklahoma v. Hobia, that's on all fours with Bay Mills as well.

[00:05:17] Speaker 03:
In addition.

[00:05:19] Speaker 02:
What do you mean it falls outside the compact?

[00:05:21] Speaker 02:
It means it's not permitted by the compact, which means it violates the compact.

[00:05:26] Speaker 02:
And that's the basis for IGRA.

[00:05:29] Speaker 03:
No, no, no.

[00:05:31] Speaker 03:
does not govern gaming outside of Indian lands.

[00:05:34] Speaker 02:
But we're not talking about, but there's no dispute that this is Indian land.

[00:05:40] Speaker 02:
Your claim is it's not the land of the party running the casino, of the tribe running the casino.

[00:05:47] Speaker 02:
That's your argument, I think.

[00:05:49] Speaker 03:
Well, my argument is that Fort South Apache is Indian land, so there's no violation.

[00:05:53] Speaker 03:
But Comanche alleges that it's Indian lands of the Kiowa tribe.

[00:05:57] Speaker 02:
OK.

[00:05:57] Speaker 03:
And the compact only governs gaming

[00:06:01] Speaker 03:
on Fort Sopacchi Indian lands.

[00:06:03] Speaker 02:
It doesn't cover what you should say is the compact doesn't permit gaining that's not on the land of the tribe running the casino.

[00:06:19] Speaker 02:
That's why it's circular.

[00:06:22] Speaker 02:
You're saying they have to have a valid claim.

[00:06:24] Speaker 02:
If they don't have a valid claim, then there's no violation of IGRA, so there's no waiver of sovereign immunity.

[00:06:31] Speaker 02:
That's essentially your argument, the one I got mixed up in my mind before.

[00:06:36] Speaker 02:
You're saying that because there's no violation of IGRA, there's no waiver of sovereign immunity under IGRA.

[00:06:46] Speaker 02:
That's fundamentally what you're saying, is it not?

[00:06:49] Speaker 03:
No, your honor, because the scope of the compact only governs gaming on Fort Sill Apache's Indian lands.

[00:06:55] Speaker 03:
It doesn't prohibit gaming outside of Fort Sill Apache's Indian lands.

[00:06:59] Speaker 03:
It only governs.

[00:06:59] Speaker 02:
But wait, how is the compact structured?

[00:07:01] Speaker 02:
I would have thought that the compact says, this allows this sort of gaming at this location.

[00:07:08] Speaker 02:
And to the extent that it doesn't.

[00:07:11] Speaker 02:
allow something, it's prohibited because the only way that you could have lawful gaming is under the compact.

[00:07:18] Speaker 02:
What am I missing there?

[00:07:20] Speaker 03:
Well, Your Honor, at the outset of the compact, it states that the compact governs gaming on the Fort Sopacchi's Indian lands.

[00:07:29] Speaker 03:
But nothing prohibits in that compact from a tribe or the Fort Sopacchi tribe from getting a state license, for instance, to game on fee lands or on another parcel.

[00:07:39] Speaker 03:
IGRA's scope only relates to tribal gaming on its Indian lands.

[00:07:44] Speaker 03:
The same for the Compact.

[00:07:46] Speaker 03:
It only governs the tribes' gaming on its own Indian lands.

[00:07:52] Speaker 01:
Well, they're arguing that the disputed lands here, the Fort Sill lands, that were created after the passage of IGRA and therefore they're not permitted to host a casino facility.

[00:08:09] Speaker 01:
Is that their argument?

[00:08:11] Speaker 03:
That's one of their arguments, Your Honor.

[00:08:15] Speaker 03:
What's wrong with that argument?

[00:08:18] Speaker 03:
Your Honor, that would not fall within the Compact and it would not fall under the IGRA because lands that are taken in trust after 1988 are again outside the scope of the IGRA and the Compact.

[00:08:32] Speaker 03:
And there is a decision on point in the Seventh Circuit related to this

[00:08:37] Speaker 03:
which was the stock bridge Muncie community versus Wisconsin.

[00:08:42] Speaker 03:
The seventh circuit said that the act does not entitle anyone to prevent gambling that is all together outside the statutory scope, such as gambling on private land or on land taken into trust for a tribe after October 17th, 1988.

[00:08:58] Speaker 03:
So it doesn't prevent gambling on those lands.

[00:09:01] Speaker 03:
It doesn't even address or govern gambling on those lands.

[00:09:05] Speaker 03:
And finally, 2710D7A2 is limited to only injunctive relief against Class III gaming.

[00:09:15] Speaker 03:
What Comanche seeks is to shut down the whole casino, including Class II gaming.

[00:09:20] Speaker 03:
And so for that third reason, Comanche's claims do not fit within that abrogation.

[00:09:26] Speaker 03:
Comanche also seeks to utilize the ex parte young exception to circumvent the tribe's sovereign immunity.

[00:09:35] Speaker 03:
But ex parte young is also unavailable.

[00:09:37] Speaker 03:
In Seminole Tribe versus Florida, the Supreme Court held that the detailed remedial scheme in 2710D prohibits implied remedies.

[00:09:48] Speaker 03:
And this court also held the same thing in Hartman versus Kickapoo.

[00:09:52] Speaker 03:
The 10th Circuit is very clear that if Congress provides an express remedy, it bars implied remedies.

[00:09:59] Speaker 03:
And here, Congress provided an express remedy

[00:10:03] Speaker 03:
for claims that are in violation of the compact on Indian lands of a tribe.

[00:10:09] Speaker 03:
Hill versus camp, Safe Streets versus Hickenlooper, this circuit's arguments, it's very clear that if Congress has an express remedy, implied remedies are barred, that's exactly what ex parte yang is an implied remedy.

[00:10:25] Speaker 03:
So that should end the ex parte yang.

[00:10:28] Speaker 00:
Can I ask you about that?

[00:10:31] Speaker 00:
Mr. Carter?

[00:10:31] Speaker 00:
My understanding is that that case law was predicated on a delay in negotiating a good faith for a tribal.

[00:10:40] Speaker 00:
a state compact.

[00:10:43] Speaker 00:
And so I thought that the idea underlying those cases is that you can't have some sort of free-floating claim for an injunction based on some common law theory when Congress has specifically articulated in IGRA a specific mechanism for resolving disagreements between a state and a tribe

[00:11:06] Speaker 00:
when one party is ostensibly failing to negotiate in good faith.

[00:11:12] Speaker 00:
But I don't understand how that, if my understanding of that case law is correct, why the creation of a statutory remedy in IGRA that

[00:11:26] Speaker 00:
that the Comanche tribe is invoking that seems to throw the, that seems backward.

[00:11:38] Speaker 00:
They're not invoking a free-floating theory.

[00:11:41] Speaker 00:
They're invoking the very detailed remedial statute that you're appointing to.

[00:11:49] Speaker 03:
Well, Your Honor, the facts of Seminole Tribe did relate to

[00:11:54] Speaker 03:
failure to negotiate a compact in good faith.

[00:11:57] Speaker 03:
But the analysis related to 2710D as a whole, the remedy set forth in 2710D7 relates to, or all of 2710D relates to compact negotiations and enforcing compact.

[00:12:11] Speaker 03:
The analysis in Seminole Tribe is still applicable here.

[00:12:15] Speaker 03:
And the important part was that when Congress provides an express remedy, it bars other remedies.

[00:12:23] Speaker 03:
And that's what Congress did here in 2710 D7, is provide an express remedy, although it's modest, it's specific, and courts cannot read into additional remedies that provide broader relief when Congress specifically provides remedy.

[00:12:40] Speaker 00:
Maybe I misunderstood what you said earlier.

[00:12:42] Speaker 00:
I thought you had said earlier that IGRA specifically contemplates one of the prescribed remedies is

[00:12:49] Speaker 00:
a remedy for the violation of a tribal state compact.

[00:12:52] Speaker 00:
Does that misunderstand?

[00:12:55] Speaker 03:
Yes, Your Honor.

[00:12:55] Speaker 03:
When the state sues a tribe for violating that compact and the gaining occurs on the tribe's Indian lands, there's a specific remedy.

[00:13:03] Speaker 03:
Congress easily could have drafted a remedy where a tribe could sue another tribe for violating a compact or for gaining outside of Indian lands, but it did not to the exclusion of the type of remedy that the Comanche Nation is seeking right now.

[00:13:18] Speaker 02:
May I say something about the compact?

[00:13:21] Speaker 02:
Does it have any description of the geographical area that the compact covers?

[00:13:27] Speaker 02:
And in particular, does it say anything about a casino at the location where we're talking about, that we're talking about here?

[00:13:36] Speaker 03:
No, Your Honor, it doesn't.

[00:13:38] Speaker 03:
If you look at the compact, the compact just states at the outset what the scope of the compact addresses.

[00:13:46] Speaker 03:
And it states that it addresses gaining on

[00:13:48] Speaker 03:
the Indian lands of the Fort Sioux Apache tribe.

[00:13:52] Speaker 03:
There's nothing in the compact that, or gibbets, gaming outside the Indian lands.

[00:13:56] Speaker 03:
The compacts just govern how a tribe will perform its gaming, how much auditing rights the state has, what reporting requirements there are.

[00:14:04] Speaker 03:
It doesn't address where a tribe can game or where it can't game.

[00:14:11] Speaker 03:
And that's why it's so important.

[00:14:12] Speaker 02:
It does here.

[00:14:13] Speaker 02:
The compact is for gaming.

[00:14:16] Speaker 02:
Would you read that language you just read a moment ago?

[00:14:19] Speaker 02:
I thought you said it's on the fort so Indian by the fort so Indian tribe.

[00:14:23] Speaker 02:
On the fort so reservation or something like that.

[00:14:26] Speaker 02:
What did it say?

[00:14:27] Speaker 03:
Your honor, it's on the.

[00:14:29] Speaker 03:
The compact covers Indian lands over which the tribe has jurisdiction.

[00:14:34] Speaker 03:
And, and the Indian lands of the tribe.

[00:14:38] Speaker 03:
That's all it governs.

[00:14:39] Speaker 03:
That's all it regulates.

[00:14:40] Speaker 03:
It doesn't prohibit or govern gaming outside of the compact.

[00:14:44] Speaker 03:
It only governs gaming.

[00:14:46] Speaker 02:
Okay.

[00:14:46] Speaker 02:
So if it's planned that Fort Sill doesn't have jurisdiction over, which is essentially what the complaint argues, then it's not covered by the compact.

[00:14:56] Speaker 02:
So.

[00:14:58] Speaker 02:
there's no way it could violate the compact.

[00:15:01] Speaker 02:
It's just not covered by the compact.

[00:15:04] Speaker 01:
Exactly.

[00:15:04] Speaker 01:
If you're right, Mr. Carter, is there any forum where Comanche could pursue these claims?

[00:15:12] Speaker 03:
I'm not sure about Comanche, but there are plenty of remedies in the Indie Gaming Regulatory Act for unlawful gaming.

[00:15:23] Speaker 03:
For example, the NIGC could issue a shutdown order of a casino

[00:15:28] Speaker 03:
And that's, your honor, may I finish answering?

[00:15:31] Speaker 03:
Yes, please.

[00:15:32] Speaker 03:
The NIGC may issue a shutdown order of the casino if it's not on Indian lands.

[00:15:37] Speaker 03:
If it's outside of Indian lands, the state would also have prosecutorial jurisdiction and regulatory jurisdiction over that gaming, assuming sovereign immunity doesn't apply.

[00:15:48] Speaker 03:
But the regulations would still apply nonetheless.

[00:15:51] Speaker 03:
And the US, the United States could also have criminal enforcement jurisdiction for unlawful gaming.

[00:15:58] Speaker 03:
Under statutes, such as 18, USC, 1966, or 1166, excuse me, and 1955.

[00:16:08] Speaker 01:
Comanche would not have a private right of action.

[00:16:13] Speaker 03:
Under any of those provisions, your honor, they could under state law.

[00:16:17] Speaker 03:
If the gaming is not on Indian lands, they could have a right of action under state law if the state provides 1, but I'm not aware of that.

[00:16:23] Speaker 03:
whether the state provides a private right of action, such as for torts or tortuous interference with a business.

[00:16:32] Speaker 03:
It's not necessarily prohibited.

[00:16:33] Speaker 03:
It's just not covered by IGRA at all.

[00:16:37] Speaker 03:
Rico might have a remedy also.

[00:16:41] Speaker 02:
Well, Your Honor, Rico.

[00:16:42] Speaker 02:
Well, you're saying there's, well, OK.

[00:16:45] Speaker 02:
Why don't you address Rico quickly?

[00:16:47] Speaker 03:
Well, in Rico, Rico also has an express remedy for private plaintiffs, and it is

[00:16:53] Speaker 03:
limited only to travel monetary damages, while the United States can bring an action under RICO and receive injunctive relief.

[00:17:00] Speaker 03:
In 1964, B is where it provides the United States could seek injunctive relief.

[00:17:07] Speaker 03:
Then in 1964 C, it specifically states that private parties can only receive travel monetary damages.

[00:17:15] Speaker 03:
Again, under Hill versus Kemp and Safe Streets versus Hickenlooper, those express remedies

[00:17:22] Speaker 03:
bar implied remedies.

[00:17:23] Speaker 03:
So the court should not read into 1964 C to say, well, it's limited to monetary damages, but we should also give injunctive relief.

[00:17:35] Speaker 03:
That's just not what this court has done in the past.

[00:17:39] Speaker 03:
And that's not what Congress prescribed in the RICO.

[00:17:43] Speaker 03:
Thank you, Castle.

[00:17:44] Speaker 03:
Your time is expired.

[00:17:45] Speaker 02:
Well, any other questions from the panel?

[00:17:47] Speaker 02:
No.

[00:17:48] Speaker 02:
Thank you.

[00:17:49] Speaker 02:
Thank you, Your Honor.

[00:17:50] Speaker 02:
Mr. Pipestad.

[00:17:52] Speaker 04:
Thank you, Judge.

[00:17:53] Speaker 04:
May it please the court.

[00:17:54] Speaker 04:
Wilson Pipes down.

[00:17:55] Speaker 04:
I serve as counsel to the Comanche Nation in this case.

[00:17:59] Speaker 04:
My co-counsel Shoney Blake and Jill Keene, as well as the chairman of the Comanche Nation Force, Tad Nippah, are here on the call.

[00:18:08] Speaker 04:
I'd like to focus on three elements of this case.

[00:18:12] Speaker 04:
And I think this is what the judges focused first on in the argument just now.

[00:18:19] Speaker 04:
that the defendants assert blanket immunity from suit as they operate an illegal casino on lands that are not eligible for gaming under the Indian Gaming Regulatory Act.

[00:18:30] Speaker 04:
The IGRAS terms plainly abrogate a tribe's sovereign immunity when one tribe brings an action to enjoin Class III gaming activity of another tribe when that gaming activity violates a tribal state compact.

[00:18:46] Speaker 04:
Second, the defendants failed to raise many of their arguments at the district court that they raise now, thereby failing to preserve those arguments.

[00:18:55] Speaker 04:
The defendants have failed to cite the record for the arguments they did raise, so the court may assume the defendants did not preserve these issues for appeal.

[00:19:03] Speaker 04:
Also, the defendants have not argued plain error for any of the positions they've taken on appeal.

[00:19:09] Speaker 04:
As a result, the court may consider these arguments waived and declined to review any issues that were not preserved, and we urge the court to do so.

[00:19:17] Speaker 00:
Mr. Bipes, on your second and third arguments, why shouldn't we, why don't we have to consider those who respond to a, since they involve federal court jurisdiction?

[00:19:29] Speaker 04:
So first of all, because of waiver and the 10th circuit courts have said,

[00:19:36] Speaker 04:
10th Circuit case law and the court's rules regarding forfeiture and waiver, which we definitely have here, say that even in the case of sovereign immunity, the court does not have to take and consider those questions.

[00:19:54] Speaker 04:
That's a question of discretion of the court.

[00:19:59] Speaker 04:
So even though there are questions here that have been raised, many of them don't relate to

[00:20:06] Speaker 04:
the issue of 12B1 jurisdiction.

[00:20:09] Speaker 04:
They're potentially collateral issues, but we don't think that's appropriately before the court.

[00:20:17] Speaker 04:
Many of them have, including a long list of these arguments that are made for the first time, the defendants argue there's no private right of action in EGRA because a remedial scheme does not allow it.

[00:20:31] Speaker 04:
There's no citation to this in the motion to dismiss, and there's no plain error argued.

[00:20:38] Speaker 04:
They argue that Indian lands at issue, the Indian lands at issue, I know that there's a disagreement.

[00:20:43] Speaker 04:
We believe there's no dispute that these are Indian lands, but they can't be Indian lands under the Comanche Nations theory of this case.

[00:20:52] Speaker 04:
That's a merits-based argument that was first raised on appeal without plain error.

[00:20:58] Speaker 04:
With regard to some of the RICO claims,

[00:21:02] Speaker 04:
The issue of whether RICO establishes a private right of action for injunctive relief.

[00:21:09] Speaker 04:
First of all, it's a failure to state a claim issue, and it's raised for the first time on appeal.

[00:21:16] Speaker 04:
So to the extent that an immunity issue relies on the argument that we fail to allege individual allegations, the defendants abandon that argument after the TRO briefing.

[00:21:30] Speaker 04:
So, and again, many of these issues were raised for the first time on reply.

[00:21:35] Speaker 04:
The issue of Indian lands at issue whether an original Kiowa allotment can be considered after it was transferred to the Fort Sillipatchee tribe is that can maintain that tribal status while it was still a Kiowa allotment.

[00:21:54] Speaker 04:
That was raised for the first time on reply.

[00:21:59] Speaker 04:
They argue any number of issues that are raised for the first time on appeal.

[00:22:08] Speaker 04:
So.

[00:22:13] Speaker 02:
Let me ask about one we probably spent the most time on with the opposing counsel.

[00:22:22] Speaker 02:
Whether there's a

[00:22:24] Speaker 02:
a waiver of sovereign immunity under IGRA here, and there is a waiver of sovereign immunity, or Congress defeated a rule of sovereign immunity for suits by a tribe against class three gaming activity located on Indian lands, and it's clear this was Indian lands.

[00:22:52] Speaker 02:
and conducted in violation of a compact.

[00:22:57] Speaker 02:
But the way the complaint here is framed, what you allege is this gaming is not on land of the Fort Sill Indian tribe.

[00:23:12] Speaker 02:
And therefore, that gaming is not covered by any compact.

[00:23:18] Speaker 02:
There's no compact that governs

[00:23:23] Speaker 02:
gaining conducted by the Fort Sill tribe on lands not owned or governed, whatever the term was, I'm not sure, by the Fort Sill.

[00:23:37] Speaker 02:
So why does not, are you saying that argument wasn't preserved below so we don't need to address it?

[00:23:44] Speaker 02:
Or are you saying it's wrong in the merits or both?

[00:23:47] Speaker 04:
We're saying that the compact language itself

[00:23:50] Speaker 04:
incorporates federal law.

[00:23:53] Speaker 04:
So if you look at paragraph 5L of the Compact between the Fort Sillipatche Tribe and the state of Oklahoma, it incorporates these questions of Indian land.

[00:24:04] Speaker 04:
So it just mentions IGRA's Indian lands definition and the federal process for acquiring Indian lands for gaining purposes.

[00:24:15] Speaker 04:
So by incorporating federal law into the Compact,

[00:24:19] Speaker 04:
It does not say that the compact approves of these lands being the Fort Sill Apache tribes Indian lands that are available for gaming.

[00:24:29] Speaker 04:
It says that that is a question of federal law that should be determined in accordance with federal law and federal processes.

[00:24:41] Speaker 04:
So, and that is what is we are litigating here, the question

[00:24:45] Speaker 04:
of those Indian lands.

[00:24:46] Speaker 04:
There's no doubt these are Indian lands under IGRA.

[00:24:49] Speaker 04:
We don't dispute that.

[00:24:50] Speaker 04:
We do dispute whether or not these lands were taken into trust under the after acquired provision of IGRA before 1988, the date of enactment, October 17th, 1988, the date of enactment of IGRA or after.

[00:25:10] Speaker 04:
We believe that they were taken into trust

[00:25:13] Speaker 04:
by the United States for the Fort Sillipatchee tribe after that date.

[00:25:19] Speaker 04:
So what the defendants have raised for the first time on appeal is that this was an allotment that belonged to a Kiowa Indian, and it was under the jurisdiction of a Kiowa Indian.

[00:25:33] Speaker 04:
It was in trust for that individual.

[00:25:36] Speaker 04:
The United States transferred that land

[00:25:39] Speaker 04:
to the Fort Sillipatchee tribe after October 17th, 1988.

[00:25:44] Speaker 04:
We believe that is a violation of the after required provision of the Indian Gaming Regulatory Act.

[00:25:52] Speaker 02:
But you have to show this waiver of sovereign unity in the language I read is that it's got to be contrary to a compact.

[00:26:02] Speaker 02:
Yes.

[00:26:03] Speaker 02:
And what you've added

[00:26:04] Speaker 02:
is that the Compact itself incorporates federal Indian law restricting gaming.

[00:26:11] Speaker 02:
Is that what you're saying?

[00:26:13] Speaker 04:
Yes.

[00:26:14] Speaker 04:
So by the language of the Compact itself, it says that we defer, and this is my words, not the exact language of the Compact, the federal processes for acquiring Indian lands for gaming purposes to the United States.

[00:26:32] Speaker 01:
Does Fort Silla have a casino somewhere else?

[00:26:36] Speaker 04:
Uh, I believe they do.

[00:26:38] Speaker 04:
I believe they do.

[00:26:39] Speaker 04:
I'm not sure though.

[00:26:46] Speaker 01:
So, well, if you're, if you're right then, if you're right about there being a violation of IGRA, then doesn't that, um, doesn't that obviate your ex parte young theory?

[00:27:01] Speaker 01:
In other words, you don't need ex parte young because you have a direct violation to pursue under IGRI.

[00:27:07] Speaker 04:
We believe in this, the Indian Regulatory Act, there's a narrow abrogation of tribal sovereignty limited to these sorts of claims.

[00:27:19] Speaker 04:
So just the language of the statute is we rely on just the plain language of the statute.

[00:27:27] Speaker 04:
So in this circumstance, the Comanche Nations, an Indian tribe, we've sued

[00:27:31] Speaker 04:
to enjoin illegal class 3 gaming activities on the Solote allotment that was then transferred to the Fort Silla Apache tribe.

[00:27:40] Speaker 04:
We questioned whether that was a lawful transfer.

[00:27:42] Speaker 04:
But at the time, it was the jurisdiction of the Kiowa tribe, and the United States took that land into trust after 1988 for the Fort Silla Apache tribe.

[00:27:53] Speaker 04:
So that is a matter on the merits that will, in this complicated world of Indian lands in Western North Carolina, that will

[00:28:01] Speaker 04:
We hope to litigate at the district court, but we believe that we need the plain language of the statute.

[00:28:17] Speaker 02:
But if you do, I think this was the question, you don't need ex parte a young to get relief then.

[00:28:24] Speaker 04:
We don't need relief from Ex Parte Young for our IGRA-based claims.

[00:28:29] Speaker 04:
So we also say that the Ex Parte Young, we brought an action under RICO.

[00:28:39] Speaker 04:
So we do believe that Ex Parte Young does not allow them to raise effectively a sovereign immunity defense in that circumstance.

[00:28:53] Speaker 01:
But the RICO claim is dependent on an IGRA violation, is that correct?

[00:28:57] Speaker 04:
No, it's an entirely separate statute.

[00:29:00] Speaker 01:
So IGRA incorporates... The underlying, there has to be an underlying offense.

[00:29:05] Speaker 04:
Oh, yes.

[00:29:07] Speaker 01:
And that's the IGRA violation.

[00:29:08] Speaker 04:
Yes, so first we have to establish it's illegal gambling, right?

[00:29:13] Speaker 04:
And that is a question under IGRA, because again, we believe that for a number of reasons that we've identified, I just mentioned that

[00:29:20] Speaker 04:
the lands here are not eligible for gaming.

[00:29:23] Speaker 04:
They're in trust, they're indie lands, but they are not eligible for gaming for the Fort Sillapatchee tribe.

[00:29:32] Speaker 00:
Just to make sure that I understand, so the RICO claim is an independent claim, but the criminal enterprise is the IGRA violation.

[00:29:44] Speaker 04:
Well, the criminal enterprise is the illegal gambling operating outside

[00:29:50] Speaker 04:
of the Indian Gaming Regulatory Act.

[00:29:54] Speaker 02:
Okay.

[00:29:55] Speaker 02:
And your claim under Ex parte Young using RICO must, you have to show that RICO itself doesn't provide an exhaustive regulatory framework for how to deal with this illegality and therefore

[00:30:18] Speaker 02:
ex parte young would allow injunctive relief.

[00:30:27] Speaker 02:
Is that your theory there?

[00:30:29] Speaker 04:
Well, yes.

[00:30:30] Speaker 04:
Now, again, we believe that the issues that they have raised related to this were raised for the first time on appeal.

[00:30:42] Speaker 04:
Could you ask that again?

[00:30:43] Speaker 04:
I got turned around.

[00:30:46] Speaker 02:
I'm counting on people to understand things better than I express them.

[00:30:50] Speaker 02:
But generally, ex parte young does not allow injunctive relief when it's based on a statute that provides ample remedies, which are assumed to be exhaustive.

[00:31:05] Speaker 02:
We have lots of remedies under RICO.

[00:31:08] Speaker 02:
If it's not in RICO, you can't go elsewhere to find a remedy.

[00:31:12] Speaker 02:
And that would foreclose ex parte young suits.

[00:31:16] Speaker 02:
So you're arguing in part, I gather, that RICO doesn't provide an exhaustive set of remedies.

[00:31:26] Speaker 02:
And therefore, you can seek injunctive relief through ex parte young for a RICO violation.

[00:31:33] Speaker 02:
Am I correct about that?

[00:31:35] Speaker 04:
Yes, we do not believe that RICO provides that the sort of a comprehensive scheme.

[00:31:44] Speaker 04:
In fact, the remedies are to be left to us to see.

[00:31:54] Speaker 04:
The comprehensive scheme under the, excuse me.

[00:32:00] Speaker 04:
I'm sorry, Your Honor.

[00:32:01] Speaker 04:
Yeah, you're not seeking damages.

[00:32:03] Speaker 04:
We are seeking damages troubled against the individuals, not the tribe.

[00:32:09] Speaker 04:
Under RECA, we have not sued the Fort Silla Apache tribe.

[00:32:14] Speaker 04:
It's the officials of the tribe and the gaming officials who have worked to operate and continue to operate the casino.

[00:32:23] Speaker 04:
In their individual capacities?

[00:32:25] Speaker 04:
Yes, in their official and individual capacities.

[00:32:28] Speaker 04:
Okay.

[00:32:30] Speaker 00:
Can I interject with one question about the Ex parte Young theory against the tribal officials in their official capacities?

[00:32:40] Speaker 00:
Because I understand that the people that you have sued are members of the gaming committee and the business committee that voted as a part of a collective body to approve the commencement of

[00:32:55] Speaker 00:
gaming in the casino.

[00:32:58] Speaker 00:
But, you know, typically you have to have an ongoing violation and you have to sue individuals that, you know, that are part of that ongoing violation.

[00:33:12] Speaker 00:
These individuals seem to have voted at a discrete time.

[00:33:18] Speaker 00:
They don't, I don't think there's any allegations of the complaint that they have ongoing enforcement responsibilities.

[00:33:24] Speaker 00:
anything to do with the oversight of the casino.

[00:33:30] Speaker 00:
So why are those appropriate individuals to have been named in their official capacities under Ex parte Young when they did not participate in an ongoing violation?

[00:33:42] Speaker 00:
They participated in a collective vote at a discrete time that has long passed.

[00:33:48] Speaker 04:
Well, the individuals, not only did they authorize

[00:33:52] Speaker 04:
the establishment of this casino.

[00:33:54] Speaker 04:
And you cannot lawfully authorize illegal conduct.

[00:33:57] Speaker 04:
That's one reason we believe that they're outside their sovereign immunity, and we can bring these actions.

[00:34:04] Speaker 04:
But they continue to operate this illegal operation.

[00:34:10] Speaker 04:
These individuals?

[00:34:11] Speaker 04:
The individuals continue to be involved in the oversight and operation of the illegal gaming operation.

[00:34:22] Speaker 04:
There are cases in which they've been finding that the fact that there is a regulatory agency involved is sufficient to demonstrate that they continue to be involved in the operation of the illegal conduct.

[00:34:43] Speaker 02:
Well, counsel, your time has expired.

[00:34:45] Speaker 02:
There seem to be any further questions from the panel.

[00:34:49] Speaker 02:
I'm ready about that.

[00:34:50] Speaker 02:
So counsel excused and the case is submitted.