Barker v. Menominee Nation Casino

• Decision Date: 26 July 1995
• Docket Number: No. 94-C-772.,94-C-772.
• Parties: Edward E. BARKER, Plaintiff, v. MENOMINEE NATION CASINO, Menominee Gaming Commission, Menominee Tribal Legislature, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

897 F. Supp. 389

Edward E. BARKER, Plaintiff, v. MENOMINEE NATION CASINO, Menominee Gaming Commission, Menominee Tribal Legislature, Defendants.

No. 94-C-772.

United States District Court, E.D. Wisconsin.

July 26, 1995.

COPYRIGHT MATERIAL OMITTED

Edward E. Barker, Shawano, WI, pro se.

Thomas J. Parins, Parins Law Firm, S.C., Green Bay, WI, for Menominee Nation Casino.

Rebecca S. Cohen, The Cohen Law Firm, Green Bay, WI, for Menominee Gaming Com'n.

Wm. F. Kussel, Jr., Program Atty., Keshena, WI, for Menominee Tribal Legislature.

MEMORANDUM AND ORDER

WARREN, District Judge.

Before the Court are the plaintiff's Motion for Appointment of Counsel and the defendants' Motions to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6) in the above-captioned matter. For the following reasons, the plaintiff's motion is denied, the defendants' motions are granted, and this case is hereby dismissed.

On July 12, 1994, plaintiff Edward E. Barker filed the instant Complaint, in which he claims that defendants Menominee Nation Casino ("the Casino"), Menominee Tribal Gaming Commission ("the Commission"), and Menominee Tribal Legislature ("the Legislature")¹ wrongfully terminated him from his job as a Table Game Operator and denied his request for a gaming license after discovering that he had been convicted in June of 1989 for a misdemeanor bad check charge, and denied him due process during his request for reconsideration.² The Commission, however, indicates that Barker "failed to disclose this information on his application for a gaming license, even though the application requires all criminal convictions to be disclosed." The Casino, in turn, claims that, while the Commission heard Barker's reconsideration request on December 8, 1993 and the Legislature heard his waiver request on May 5, 1994, he brought "no legal actions or legal proceedings in the Menominee Indian Tribal Court regarding his involuntary termination of employment," (Parins Aff. ¶ 5); and the Legislature claims that, while it did deny Barker a waiver of restriction for a gaming license, it "was not a party to the decision of the Commission to terminate the plaintiff." (Miller Aff. ¶ 10.) The relief he requests includes compensation for "breach of promise, wrongful termination, and prejudicial treatment," as well as punitive damages. The plaintiff has also filed a Motion for the Appointment of Counsel. On September 1, 1994, the Court granted Barker's Application for Leave to Proceed In Forma Pauperis.

On October 13, 1994, the Casino moved to dismiss this action, arguing that the "Tribal Exhaustion Rule," see National Farmers Union Ins. Cos. v. Crow Tribe of Indians ("Crow Tribe II"), 471 U.S. 845, 856-57, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985), precludes the plaintiff from bringing this action because he failed to challenge his termination in the Menominee Tribal Court; Barker responds that, by the time his appeal to the Commission was heard on December 8, 1993, the deadline for seeking relief before the Tribal Court had expired. On October 28, 1994, the Legislature filed a motion to dismiss on the same grounds, and further argued that (1) the Menominee Indian Tribe, as a sovereign Indian tribe recognized by the United States government, is immune from suit, and (2) the Legislature should be dismissed because it was not Barker's employer; after expressing dissatisfaction with the hearings before the Commission and the Legislature, Barker responds that "any remedy within the Tribal Court would not be enough of a deterrent to correct this or future complaints."³ On March 16, 1995, the Commission moved to dismiss this action because Barker had not served a copy of the Complaint within 120 days of filing; Barker responds that the Marshal's office mailed a copy of the Complaint to the address listed on the Commission's own letterhead and informed him that a response had been received. Finally, on January 19, 1995, the plaintiff filed a four-page brief in which he challenges the fairness of his hearings before the Commission and the Legislature, criticizes the "double standard" to which he claims non-tribal member employees are held by the defendants, and accuses the defendants of ignoring "their own laws and ordinances."

As an initial matter, Barker's request for appointment of counsel must be denied. The Seventh Circuit has long recognized that indigent civil litigants have no constitutional or statutory right to be represented by counsel in federal court. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.1992); McKeever v. Israel, 689 F.2d 1315, 1320 (7th Cir.1982); Maclin v. Freake, 650 F.2d 885, 887 (7th Cir.1981). The Court, of course, may, in our discretion, request counsel to represent indigent civil litigants under 28 U.S.C. § 1915(d), and must appoint counsel if necessary to ensure fundamental fairness and protect due process rights. Jackson, 953 F.2d at 1072; McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir.1987); Maclin, 650 F.2d at 886.

The Seventh Circuit has indicated that district courts should consider the following nonexhaustive factors in determining the appropriateness of appointing counsel under § 1915(d): (1) the merits of the indigent's claim for relief, (2) the ability of the indigent plaintiff to investigate crucial facts unaided by counsel, (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel, (4) the capability of the indigent to present the case, and (5) the complexity of the legal issues raised by the complaint. Jackson, 953 F.2d at 1072; McKeever, 689 F.2d at 1320-21; Maclin, 650 F.2d at 887-88. The first factor acts as the threshold question, as "even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely thin," and the other four factors should only be considered if this initial criterion is satisfied. Maclin, 650 F.2d at 887. See also McKeever, 689 F.2d at 1320.

In addition, "§ 1915(d) requires a threshold inquiry into the indigent's efforts to secure counsel," which, in this district, requires that he or she submit letters from at least three attorneys declining representation. Jackson, 953 F.2d at 1073. If an indigent civil litigant "has made no reasonable attempts to secure counsel, the court should deny any § 1915(d) motions for appointment outright." Id. Finally, while an indigent civil litigant's case is not per se meritless simply because he or she cannot retain counsel, "a court contemplating an appointment of counsel under § 1915(d) is justified in subjecting an indigent's claim to heightened scrutiny if the petitioner was unsuccessful in obtaining counsel ... when sifting out those claims which are patently frivolous." Id.

Barker has not submitted three letters from attorneys declining to represent him as required in Jackson. More importantly, as shall be seen, his prospects of ultimately succeeding in federal court are exceedingly remote. Given this, the Court must deny his motion for appointment of counsel, and he will be expected to follow the procedural rules listed in both the Local Rules for the Eastern District of Wisconsin and the Federal Rules of Civil Procedure in further litigating this claim. This ruling also renders the defendants' respective motions to dismiss ripe for review.

It is our view that the defendants' dismissal motions must be granted, and Barker's complaint dismissed, because the defendants, as the governing body (the Legislature) and subordinate economic enterprises (the Casino and the Commission) of the Menominee Indian Tribe ("the Tribe"), are immune from suit in federal court. As recently observed by the Seventh Circuit:

"Indian tribes are considered `domestic dependent nations' which `exercise inherent sovereign authority over their members and territories.' Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 508, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991). `Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.' Id.; accord Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978); United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940)."

Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 812 (7th Cir.1993). As noted by the defendants, the Tribe is a sovereign Indian tribe recognized by the United States government under 25 U.S.C. § 903a et seq. (Miller Aff. ¶ 6); therefore, its governing body, the Legislature, possesses "the common law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara, 436 U.S. at 58, 98 S.Ct. at 1677. The Commission and Casino, in turn, were issued a corporation charter by the Legislature through a tribal ordinance and pursuant to the Tribal Constitution (Id. at ¶ 3); because "an action against a tribal enterprise is, in essence, an action against the tribe itself," see Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enter., 595 F.Supp. 859, 862 (E.D.Wis.1984) (Warren, J.), the Commission and Casino are likewise immune from suit unless Congress or the Legislature has waived its sovereignty for purposes of this type of action. Id.; accord Altheimer & Gray, 983 F.2d at 812 (noting that a provision of the Sioux Tribe's tribal charter creating a subsidiary tribal manufacturing subdivision explicitly stated that sovereign immunity "is hereby expressly waived with respect to any written contract entered into by the Corporation").⁴

There exists no evidence in the record that the Tribe has waived its right to sovereign immunity as to any of the claims brought by Barker in this case. The Supreme Court has recognized that, in order to be effective, any waiver of the Tribe's immunity must be unequivocally expressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49,...