Hartman v. Kickapoo Tribe Gaming Com'n
| Decision Date | 16 November 2001 |
| Docket Number | No. 99-4102-DES.,99-4102-DES. |
| Citation | 176 F.Supp.2d 1168 |
| Parties | Tammy K. HARTMAN, Plaintiff, v. THE KICKAPOO TRIBE GAMING COMMISSION; Laura Soap; Denise Mendez; Victor Palmer; the Kickapoo Tribe of Kansas; the State of Kansas; the Kansas State Gaming Agency; Tracy Diel; the National Indian Gaming Commission; and Montie Deer, Defendants. |
| Court | U.S. District Court — District of Kansas |
William J. Pauzauskie, Oyler & Pauzauskie, Topeka, KS, for Tammy K. Hartman.
James C. Heathman, Topeka, KS, for Kickapoo Tribe Gaming Com'n.
James W Merz, Merz & Stacy, Oklahoma City, OK, James C. Heathman, Topeka, KS, for Laura Soap, Denise Mendez, Victor Palmer, Kickapoo Tribe of Kansas.
M.J. Willoughby, Gail E. Bright, Office of Atty. General, Topeka, KS, for State of Kansas, Tracy Diel, Kansas Gaming Agency.
Jackie A. Rapstine, Office of Atty. General, Topeka, KS, for National Indian Gaming Com'n.
This matter is before the court on multiple motions filed by the parties. The defendants are separated by representation into distinct groups. For the sake of clarity, the court will refer to the multiple defendants in accordance with this established demarcation. The initial group consisting of the State of Kansas and the State Gaming Agency will be referred to as the Tracy Deil will also be considered a state defendant, but he has filed a separate motion to dismiss. The second group consisting of the National Indian Gaming Commission and Montie Deer will be referred to as the "federal defendants." The final group consisting of the Kickapoo Tribe Gaming Commission, the Kickapoo Tribe of Kansas, Laura Soap, Denise Mendez, and Victor Palmer will be referred to as the "tribal defendants."
The following motions are presently before the court:
1. State Defendants' Motion to Dismiss (Doc. 28), which is granted;
2. Tracy Deil's Motion to Dismiss (Doc. 30), which is granted;
3. Federal Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. 51), which is granted;
4. Tribal Defendants' Motion to Dismiss (Doc. 32), which is granted.
I. BACKGROUND
The Kickapoo Tribe of Kansas ("Tribe") is a federally recognized Indian tribe located on a reservation near Horton, Kansas. In 1995, the Tribe entered into a Gaming Compact ("Compact") with the State of Kansas ("State"), which allowed the Tribe to conduct gaming on its reservation. The Tribe operates the Golden Eagle Casino ("Golden Eagle"), a Class III gaming facility, pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq. Both the National Indian Gaming Commission ("NIGC"), through its chair, Montie Deer ("Deer") and the Kansas State Gaming Agency ("KSGA"), through its chair, Tracy Diel ("Diel"), are charged with overseeing tribal gaming.
On July 10, 1995, the Tribe adopted the Kickapoo Nation Tribal Gaming Commission Ordinance and the Kickapoo Tribal Gaming Ordinance. (Def. Exs. 4 and 5). The ordinance at issue in this case, titled, Amended Kickapoo Nation Tribal Gaming Commission Ordinance ("April 8th Ordinance"), was adopted by the Tribe on April 8, 1996. (Pl.Ex. 1). According to the NIGC records, the April 8th Ordinance was not submitted to the agency for approval. (Gov.Ex. B). For reasons unknown to this court, on April 26, 1996, the Tribe adopted a second amended ordinance ("April 26th Ordinance") substantially similar to the April 8th Ordinance. The April 26th Ordinance, however, was submitted to the NIGC for approval on May 20, 1996. In response to the submission of the April 26th Ordinance, the Chairman of the NIGC in office at the time, Harold Monteau, informed the Tribe by letter that the April 26th Ordinance did not require approval "because the amendment addresses issues not raised in the IGRA or the NIGC's regulations." (Def.Ex. 8).
Tammy Hartman ("plaintiff"), who is not an Indian, was employed by the Tribe at the Golden Eagle. Plaintiff held a State/ Tribe gaming license, pursuant to the Compact. The Kickapoo Tribe Gaming Commission ("KTGC") suspended plaintiff's gaming license on April 28, 1997. The suspension followed an alleged gaming incident in which plaintiff accepted chips from a Sac and Fox Casino patron at the Sac and Fox Casino on February 27, 1997. Plaintiff was initially suspended, investigated, and cleared by her employer to return to work. Later, the Tribe reinitiated the investigation, leading to an approximate seven-day suspension of plaintiff's gaming license. The suspension was affirmed by defendants Laura Soap ("Soap"), Denise Mendez ("Mendez"), and Victor Palmer ("Palmer"), Commissioners of the KTGC, on June 26, 1997. After the suspension was affirmed, plaintiff discontinued her employment at the Golden Eagle, apparently by her own free will, and sought employment from other regional casinos. (Pl. Aff. at 4). Plaintiff was unable to maintain employment at other regional casinos because of the record of suspension at the Golden Eagle. After briefly receiving unemployment benefits, plaintiff returned to work at the Golden Eagle in the Spring of 1998. Plaintiff's gaming license was never revoked.
On August 28, 1998, plaintiff filed suit against the tribal defendants in the Kickapoo Tribal Court, Case No. CIV-98-38, alleging the Tribe's failure to provide a hearing before suspension of plaintiff's gaming license resulted in wrongful suspension of such license and violation of plaintiff's due process rights. In response, the Tribe invoked the doctrine of sovereign immunity. Following an adverse decision in the tribal district court, plaintiff appealed. Plaintiff's appeal is currently pending in Tribal court.
On June 25, 1999, plaintiff filed the present action in the United States District Court for the District of Kansas seeking equitable, monetary, and declaratory relief. Plaintiff's amended complaint raises the following eleven causes of action:
Count One The Tribe incorrectly invoked the doctrine
of sovereign immunity
Count Two KTGC wrongfully suspended plaintiff's
gaming license without substantive or
procedural due process, and without notice
and hearing in violation of IGRA
Count Three Rules and regulations, including the "appearance
of impropriety" standard, are
too vague for employees to be put on
notice of such standard
Count Four Plaintiff was not on notice of the "appearance
of impropriety" standard because
it was not published and the "appearance
of impropriety" standard is not
part of the IGRA directives
Count Five The State, NIGC, KSGA, Tribe, and
KTGC failed to meet the IGRA directives
and/or IGRA is defective
Count Six Plaintiff was deprived of a property interest
without due process when her
gaming license was suspended;
Count Seven Damage to reputation, emotional distress,
and impaired ability to be employed;
Count Eight The State failed to enforce the Compact;
Count Nine KSGA and its director failed to oversee
tribal gaming operations in violation of
Kansas Statutes Annotated §§ 74-9804,
74-9805, thereby breaching duties owed
to plaintiff to ensure gaming operations
were conducted in accordance with federal,
state, and Tribal law;
Count Ten NIGC and its chairman approved a defective
ordinance; and
Count Eleven Each defendant, individually and collectively,
acting under the color of state,
tribal, federal agency law, and the laws
of the United States deprived plaintiff of
her property rights without substantive
and procedural due process in violation
of 42 U.S.C. § 1983.
II. STANDARD OF REVIEW
All defendants seek dismissal of plaintiff's claims pursuant to one or more subsections of Rule 12 of the Federal Rule of Civil Procedure. In ruling on a motion to dismiss, the court accepts the veracity of all well-pleaded facts in the plaintiff's complaint and views both the facts and all reasonable inferences in the light most favorable to the plaintiff. Housing Authority of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The pleadings must be construed liberally. Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973).
The issue in reviewing the sufficiency of a complaint is not whether the plaintiff ultimately will prevail, but whether the plaintiff shall be allowed to offer evidence to bolster the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court may not dismiss a case for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); See also Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991). In a Rule 12(b)(1) motion, the court may consider documents and other information submitted to the court in addition to the plaintiff's complaint. Armstrong v. Goldblatt Tool Co., 609 F.Supp. 736, 737 (D.Kan.1985).
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factualispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that...
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