Tohono O'odham Gaming Enter. v. Tohono O'odham Gaming Office, (2024)

• Docket Number: AP2022-0004,AV2022-0056
• Decision Date: 01 May 2024
• Citation: Tohono O'odham Gaming Enter. v. Tohono O'odham Gaming Office, 4 TOR3d 35, AP2022-0004, AV2022-0056 (Tohono O'odham Ct. of App. May 01, 2024)
• Parties: Tohono O'odham Gaming Enterprise, Appellant, v. Tohono O'odham Gaming Office, et. al., Appellee.
• Court: Tohono O'odham Court of Appeals

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Tohono O'odham Gaming Enterprise, Appellant, v. Tohono O'odham Gaming Office, et. al., Appellee.

No. AP2022-0004

No. AV2022-0056

Tohono O'odham Court of Appeals

May 1, 2024

Erin F. Byrnes, Counsel for AppellantsTohono O'odham Gaming Enterprise.

Howard Shanker, Tohono O'odham Nation Attorney General, Counsel for Appellee, Tohono O'odham Gaming Office.

Before Judges David M. Osterfeld, Barbara Atwood, and Tessa L Dysart.

OPINION

Having considered the Tohono O'odham Nation Trial Court record the filings on appeal, and argument presented February 15 2024, this Court affirms the Trial Court's decision that sovereign immunity bars this lawsuit but modifies the Trial Court's interpretation of the Tohono O'odham sovereign immunity provisions.

I.FACTUAL BACKGROUND

The Tohono O'odham Nation ("Nation") owns and runs several gaming facilities within its boundaries.These gaming activities are federally regulated under the Indian Gaming Regulatory Act ("the Act").See25 U.S.C. §§ 2701-21.

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In 1993, the Nation's Legislative Council enacted the Nation's Gaming Ordinance ("the Ordinance") to provide for the "orderly and honest" conduct of gaming activities within the Nation.SeeTohono O'odham Code, Title 16, Chapter 1, §101 (a).The Ordinance requires "comprehensive regulation of all people, practices, and activities related to the operation of the Nation's gaming facilities."Id. at § 101(c).In addition, the Ordinance requires the Nation to maintain an office dedicated to this regulatory duty, which the Nation identified as the Tohono O'odham Gaming Office("Gaming Office" and "TOGO").Id. at §§ 401,403(a).The Gaming Office has authority to license the people and facilities that conduct gaming activities, and through that licensing, the Nation regulates those parties.Id. at §101(d).

a. The TOGO and TOGE

TOGO is housed within the Nation's Executive Branch and "[has] overall civil regulatory authority over gaming activities within the Nation and the Gaming Facility Operator" as provided in the Ordinance.Id. at § 401.TOGO'S regulatory functions primarily include licensing the following: gaming facility operators, an operator's board of directors, gaming device manufacturers, distributors, gaming vendors, financers, and employees.Id. at §§ 501,502,601,701,801.

The Gaming Facility Operator is the Tribal Enterprise that the Nation designates as having authority and responsibility for conducting gaming activities

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in the Nation.Id. at §201(n).The Tribal Enterprise is defined as a wholly-owned enterprise of the Nation authorized and chartered under the Nation's Constitution, which the Nation's Legislative Council designates as the Gaming Facility Operator.Id. at §201(gg).The Nation's Legislative Council created the Tohono O'odham Gaming Enterprise("Enterprise" and "TOGE") as the Nation's operator for its gaming facilities.16 T.O.C. Ch. 2, § 1.

TOGE is established according to a plan of operation that the Legislative Council adopts.Id. at § 502(a).TOGO must license all of TOGE's Board of Directors, gaming device manufacturers, distributors, gaming vendors, financers, and employees.Id. at §§ 501,502,601,701,801.

b. The Food and Beverage Director

In September 2021, TOGE advertised for a Food and Beverage Director for its West Valley casino (F&B Director).Two months later, the Nation's Legislative Council amended TOGE's Charter to require that it "give preference to qualified Indians, with first preference to enrolled members of the Tohono O'odham Nation and then to other local Indians, in all hiring, promotion, training, layoffs, and all other aspects of employment."16 T.O.C. Ch. 2, § 6(1)(1).The Nation's Legislative Council made no similar amendment to the Gaming Code.A "local Indian" was defined as "any member of a federally-recognized tribe" who either lives within the exterior boundaries of the Tohono O'odham Nation or who has lived near the

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Nation for not less than 60 days before the "start of the project at issue."13 T.O.C. Ch. 1, §§ 1102(1) and 1104.This definition is found in the Tohono O'odham Nation's law implementing the Tribal Employment Rights Office and Commission.

After three months, TOGE had received only 19 applicants for the F&B Director position.While one applicant met the Tohono O'odham preference requirements, TOGE concluded that the applicant did not meet all other minimum qualifications.TOGE eventually selected a non-Indian applicant, Jeffrey George, for the position.On or about January 17, 2022, TOGE submitted Mr. George's name to TOGO for licensing.

After receiving TOGE's request for licensure for this applicant, TOGO told TOGE it was concerned the Indian preference requirements had not been followed.TOGO asked for more information on this applicant and an explanation as to why the Nation's member applicant had not been selected.In response, TOGE gave TOGO the Nation's member's application material and cited his lack of experience as the reason he did not qualify.

c. TOGO's Final Decision

On March 30, 2022, the Gaming Office issued a memorandum with the subject "Final Decision: In re: TOGE WVR Food &Beverage Director Hiring Matter.'"The Final Decision found that TOGE did not follow TOGE's charter in

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preferring qualified Indians, with first preference to members of the Nation and then other local Indians.

TOGO declared it would license no applicant if it concluded on review that TOGE had not followed the Nation's hiring preference laws.This declaration was based largely on a November 2021 amendment the Nation's Legislative Council had made to TOGE's Charter to require preference for qualified Indians and first preference for enrolled members of the Nation.

On May 25, 2022, the Gaming Office amended its final decision for the F&B Director ("Amended Final Decision") and temporarily withdrew it for 120 days to let TOGO and TOGE discuss ways to settle their disagreement on the application of hiring preference.On May 27, 2022, the Enterprise filed its notice of appeal, asking for judicial review/administrative appeal of the Final Decision, under Section 1204 of the Nation's Gaming Ordinance^[1](judicial review of a final Gaming Office decision) and Section 8(Administrative Appeals) of the Tohono O'odham Rules of Court.The Enterprise also moved for immediate stay of the TOGO'S Final Decision on June 28, 2022.

In its subsequent Complaint, the Enterprise alleged that TOGO (1) acted in excess of its lawful authority, (2) exceeded its legal authority in issuing its final decision, (3) refused to carry out its statutory duty to issue a license to the preferred

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applicant, and (4) violated TOGE's right to procedural due process.TOGE asked the Trial Court to take de novo review of TOGO'S final decision issued in its letter dated March 30, 2022.The Gaming Office filed its Motion to Dismiss TOGE's Complaint on August 18, 2022.

d. Stay of Final Decision in Favor of the Enterprise

After briefings and oral argument on TOGE's Motion to Stay the Final Decision, the Trial Court granted TOGE's motion and issued an order on August 23, 2022, ("Stay Order") partially staying the Final Decision under Chapter 1, Section 1204(b) of the Gaming Ordinance and the Tohono O'odham Rules of Court Section 8,Rule 10(1).On September 1,2022, TOGO issued another letter, stating the Final Decision and Amended Final Decision "are hereby rescinded and the Gaming Office will be closing this file."In that letter, TOGO recognized that Jeffrey George was no longer interested in the F&B Director position, given he had accepted employment with another casino.

e. Subsequent Filings on the Motion to Dismiss

The Trial Court held oral argument on the TOGO'S Motion to Dismiss on October 25, 2022.Based on the hearing, the Trial Court concluded that because TOGO had fully and unconditionally rescinded its decisions on March 30 and May 20 of 2022, it could not review TOGE's claims that TOGO had exceeded its legal authority in issuing those decisions and had violated TOGE's right to procedural

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due process.The Trial Court also held that sovereign immunity barred TOGE's claims that TOGO had acted in excess of its lawful authority and had refused to carry out its duty to issue a license to the preferred applicant.The Trial Court dismissed all of TOGE's claims.

f. TOGE Appeals the Trial Court's Decision

TOGE filed this appeal on November 23, 2022.On November 30, 2022, TOGO objected to this Court's jurisdiction, arguing that TOGO'S sovereign immunity barred jurisdiction over TOGE's claims and, therefore, this Court had no jurisdiction.On February 21, 2023, this Court held that it had jurisdiction to hear this appeal under the Tohono O'odham Nation Constitution, Article VIII, Section 7, and the Tohono O'odham Nation Rules of Appellate Procedure3(c)(1).The Court also narrowed the issues on appeal, directing the parties to answer whether TOGE's action for declaratory judgment was barred by sovereign immunity and whether TOGE's action for declaratory judgment was moot because the original applicant under review was no longer seeking employment with TOGE.

As this matter progressed on appeal, the parties filed notice that on March 8, 2023, the Tohono O'odham Legislative Council had amended TOGE's Charter to show that the Tohono O'odham Nation Gaming Office"is vested with authority to adopt licensing or other regulations enforcing the Gaming Enterprise's implementation and application of 'preference' as defined herein . . . ."See

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ResolutionNo. 23-070.That same Resolution also found that TOGO, through its broad civil oversight authority over TOGE was responsible for overseeing TOGE's...