united states district court for the western district … · 3/14/2020 · plaintiffs, case no:...
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JLLJ DEVELOPMENT, LLC, A
MICHIGAN LIMITED LIABILITY
COMPANY, AND LANSING FUTURE
DEVELOPMENT II, LLC, A MICHIGAN
LIMITED LIABILITY COMPANY,
Plaintiffs, Case No: 1:20-cv-00231
v. Hon. Robert J. Jonker
KEWADIN CASINOS GAMING, Magistrate Judge Ray Kent
AUTHORITY, A DULY AUTHORIZED
ENTITY CREATED UNDER THE LAWS
OF THE SAULT STE. MARIE TRIBE
OF CHIPPEWA INDIANS,
Defendant.
_____________________________/
DEFENDANT KEWADIN CASINOS GAMING AUTHORITY’S
MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT AND/OR FOR
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
DIANE M. SOUBLY (P32005)
BUTZEL LONG, a professional corporation
Counsel for Defendant Kewadin Casinos
Gaming Commission
301 E. Liberty Street, Suite 500
Ann Arbor, MI 48104
T: (734) 213-3625
F: (734) 995-1777
Dated: May 7, 2020
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i
STATEMENT OF ISSUES PRESENTED
Without waiving sovereign immunity in so doing, Defendant Kewadin Casinos
Gaming Authority (“Kewadin”) identifies the following issues:
1. Whether Plaintiffs’ claims fail, pursuant to Rule 12(b)(1) and/or (6), for lack
of federal court jurisdiction under the threshold issue of tribal sovereignty
jurisdiction?
2. Whether, pursuant to Rule 12(b)(1) and/or (6), this Court should dismiss
Plaintiffs’ claims with prejudice because Plaintiffs’ agreements and/or the
applicable tribal self-governance documents do not contain a clear and
unequivocal waiver of sovereign immunity for the claims as pled?
3. Whether, pursuant to Rule 12(b)(1) and/or (6), this Court should dismiss
Plaintiffs’ claims pled and relief sought with prejudice because the claims
and the relief sought do not meet the limitations and conditions precedent
and procedural requirements placed on the limited waiver of tribal
sovereignty in the Agreements under which Plaintiffs sue?
4. Whether, pursuant to Rule 12(b)(1) and/or (6), this Court should dismiss
Plaintiffs’ claims with prejudice because Kewadin lacks authority to waive
and did not waive, the tribal sovereign immunity of the Sault Ste. Marie
Tribe of Chippewa Indians (the “Tribe”) and did not subject the Tribe’s land
to lien or encumbrance?
5. Whether, pursuant to Rule 12(b)(6), this Court should dismiss Plaintiffs’
claims against Kewadin in light of Plaintiffs’ default on its funding
obligations since 2017 without cure, and in light of the Tribe’s successful
litigation vacating the Secretary of Interior’s denial of the Tribe’s Mandatory
Trust submission?
6. Whether, pursuant to 28 U.S.C. §§ 2201-2202, this Court should declare the
Plaintiffs cannot establish standing to bring their Declaratory Judgment Act
claim and should enjoin Plaintiffs from seeking their claimed relief (i.e.,
immediate liens and encumbrances against the Tribe’s landing holdings and
assets and Kewadin’s assets) in federal or state court?
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ii
CONTROLLING OR SIGNIFICANT AUTHORITY
Cases:
Bryan v. Itasca Cty., Minn., 426 U.S. 373 (1976)
C&L Enter., Inc. v. Citizen Band Potowatomi Indian
Tribe of Okla., 532 U.S. 411 (2001)
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe
of Florida, 692 F.3d 1200 (11th Cir. 2012)
Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,
523 U.S. 751(1998)
Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians,
259 F. Supp.3d 713 (W.D. Mich. 2017)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014)
Memphis Biofuels LLC v. Chickasaw Nations Ind., Inc.,
585 F.3d 917 (6th Cir. 2009)
Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe
of Okla., 498 U.S. 505 (1991)
Santa Clara Pueblo v. Martinez, 436 U.S. 49(1978)
Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt et al
___ F.3d. ___, 2020 WL 1065406, C.A. 1:18cv02035
(D. D.C. Mar. 3, 2020)
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1989)
Spurr v. Pope, 976 F.3d 478 (6th Cir. 2019),
cert. den. 140 S.Ct. 850 (Jan. 13, 2020)
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iii
Statutes:
Indian Regulatory Gaming Act, 25 U.S.C. § 2701 et seq.
Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143,
Stat. 2652 (1997)
Tribal Self-Governance Statutes:
Sault Tribe Constitution and ByLaws
Sault Tribe Tribal Code Provisions:
Chapter 42: Gaming Ordinance
Chapter 44: Waiver of Tribal Immunities Ordinance
Chapter 44: Waiver of Tribal Immunities Ordinance (2009)
Chapter 94: Gaming Authority Charter
Rules:
F. R. Civ. P. 12(b)(1)
Fed. R. Civ. P. 12(b)(6)
Other Authority:
Cohen’s Handbook of Federal Indian Law § 4.01[2][c] (2012)
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TABLE OF AUTHORITIES
Cases Page
Angel v. Kentucky, 314 F.3d 262 (6th Cir. 2002) 18
Ashcroft v. Iqbal, 556 U.S. 662 (2009) 18
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 18
Blatchford v. Native Vill. Of Noatak & Circle Vill.,
501 U.S. 775 (1991) 19
Bryan v. Itasca Cty., Minn., 426 U.S. 373 (1976) 21
C&L Enter., Inc. v. Citizen Band Potowatomi Indian
Tribe of Okla., 532 U.S. 411 (2001) 21
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe
of Florida, 692 F.3d 1200 (11th Cir. 2012) 21
County of Yakima v. Yakima Indian Nation,
502 U.S. 251 (1992) 6
Eungard v. Open Solutions, Inc., 517 F.3d 891(6th Cir. 2008) 24
Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,
523 U.S. 751(1998) 19, 20, 21
Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians,
259 F. Supp.3d 713 (W.D. Mich. 2017) 4, 23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 24
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014) 20
Memphis Biofuels LLC v. Chickasaw Nations Ind., Inc.,
585 F.3d 917 (6th Cir. 2009) 19
Montana v. Blackfeet Tribe of Indians,
471 U.S. 759 (1985) 6
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v
TABLE OF AUTHORITIES
Cases Page
New England Health Care Employees Pension Fund
v. Ernst & Young, LLP, 336 F.3d 495 (6th Cir. 2003) 14-15
Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe
of Okla., 498 U.S. 505 (1991) 20
Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt et al
___ F.3d. ___, 2020 WL 1065406, C.A. 1:18cv02035
(D. D.C. Mar. 3, 2020) passim
Santa Clara Pueblo v. Martinez, 436 U.S. 49(1978) 20, 21
Scholz v. Montgomery Ward & Co.,
437 Mich. 83, 468 N.W.2d 845 (1991) 24
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1989) 19, 21
Spurr v. Pope, 976 F.3d 478 (6th Cir. 2019),
cert. den. 140 S.Ct. 850 (Jan. 13, 2020) 18-19
Statutes:
Indian Regulatory Gaming Act, 25 U.S.C. § 2701 et seq. 14
Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143,
Stat. 2652 (1997) 1, 20
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TABLE OF AUTHORITIES
Page
Tribal Self-Governance Statutes:
Sault Tribe Constitution and ByLaws 14
Sault Tribe Tribal Code Provisions:
Chapter 42: Gaming Ordinance 14
Chapter 44: Waiver of Tribal Immunities Ordinance 15, 22
Chapter 44: Waiver of Tribal Immunities Ordinance (2009) 15, 22
Chapter 94: Gaming Authority Charter 14
Rules:
F. R. Civ. P. 12(b)(1) passim
Fed. R. Civ. P. 12(b)(6) passim
Other Authority:
Cohen’s Handbook of Federal Indian Law § 4.01[2][c] (2012) 20
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TABLE OF CONTENTS
STATEMENT OF ISSUES PRESENTED i
CONTROLLING OR SIGNIFICANT AUTHORITY ii
TABLE OF AUTHORITIES v
INTRODUCTION 1
I. STATEMENT OF FACTS 4
A. The Tribe’s Success in Vacating the
Secretary of the Interior’s Denial of Its
Mandatory Trust Application Marks Progress
Towards Economic Self-Sufficiency That
Plaintiffs’ Ill-Timed Lawsuit Undercuts. 4
.
B. The Amended and Restated Agreements Between
Each Plaintiff and Kewadin Impose Identical
Limitations and Conditions Precedent and
Procedural Requirements Before Any Purported
Limited Waiver of Tribal Sovereignty Immunity
Becomes Effective. 7
1. The Agreements Impose Limitations and
Restrictions on Claims and Remedies Before
the Limited Waiver of Sovereign Immunity
is Effective. 7
2. The Agreements Enforce Those Procedural
Requirements as to Developer Expenses,
Claims, and Claimed Relief. 10
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C. The Tribe’s Self-Governance Documents Contain
Express Limitations for Waivers of Tribal Sovereignty
Immunity. 14
D. Plaintiffs’ Complaint Seeks Relief and Claims
Beyond the Scope of the Limitations Imposed
By Their Agreements and/or by the Self-Governance
Documents on the Limited Waiver of Tribal Sovereignty 16
E. Plaintiffs Defaulted on Their Funding Obligations
Without Cure. 17
II. ARGUMENT 18
A. Legal Standard 18
B. Sixth Circuit Precedent Confers Sufficient Jurisdiction
on this Court to Determine the Threshold Issue of
Tribal Sovereign Immunity Jurisdiction. 18
C. A Purported Waiver of Tribal Sovereign Immunity
By A Tribe Must Be Express, Clear and Unequivocal
To Be Enforceable. 19
D. Plaintiffs’ Claims Seek Relief Beyond the Limitations
Imposed on Any Purported Limited Waiver of Tribal
Sovereign Immunity in Each Plaintiff’s Agreement or
Under Tribal Self-Governance Documents. 22
E. This Court Should Dismiss Plaintiffs’ Declaratory
Judgment Act Claim Because Plaintiffs Cannot
Establish Standing and Should Enjoin Plaintiffs’
Claimed Relief as Unavailable and Unenforceable
Against Kewadin and Against the Tribe. 24
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CONCLUSION 25
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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INTRODUCTION
Without waiving tribal sovereign immunity, Defendant Kewadin Casinos
Gaming Authority (“Kewadin”) submits this Memorandum of Law and attached
Exhibits in support of its accompanying Motion:
Plaintiffs JLLJ Development LLC and Lansing Future Development LLC
(“Plaintiffs” or the “Developers”) seek to achieve through litigation what they did
not achieve through contract negotiations. They brought their baseless litigation
against Kewadin a mere twelve days after the District Court for the District of
Columbia granted in part the dispositive motion of the Sault Ste. Marie Tribe of
Chippewa Indians (the “Tribe”) and vacated the Secretary of Interior’s denial of
the Tribe’s Mandatory Trust submission, Sault Ste. Marie Tribe of Chippewa
Indians v. Bernhardt et al., ___ F.3d. ___, 2020 WL 1065406, at *1, C.A.
1:18cv02035 (D. D.C. Mar. 3, 2020) (Exhibit A attached) (the “DC Lawsuit”).1
1 The District Court also found, in a separate ruling, that the Tribe’s Mandatory
Trust submission for the Lansing parcel the Tribe owns appeared moot (2020 WL
1065406, at *27, n 2), a ruling based on the Tribe’s candid notification to the Court
of an impending re-conveyance of the parcel demanded by the new Mayor of the
City of Lansing. At this writing, the Tribe still owns the Parcel but has been
awaiting certain responses from the City’s counsel since December of last year and
since early February of this year relating to the demanded re-conveyance. Should
the re-conveyance not occur before this Court rules on Kewadin’s Motion to
Dismiss, then Kewadin notes that the legal conclusions of the District Court for the
District of Columbia in vacating the denial of the Mandatory Trust submission for
the 71-acre parcel in New Boston (i.e., that the Secretary had no authority to deny
the Mandatory Trust submission apply with equal force to the Mandatory Trust
submission for the Lansing parcels.
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In vacating the denial, the District Court remarked that it had no “roving
license” to disregard clear language in a statute (2020 WL 1065406, at *24) and
concluded that the Secretary had “overstepped” his authority in denying the Tribe’s
Mandatory Trust submission under the Michigan Indian Land Claims Settlement
Act, Pub. L. No. 105-143, 111 Stat. 2652 (1997) (“MILCSA”), because the Act did
clearly not grant the Secretary the authority to verify whether the Tribe’s
acquisition of the land was “proper” under the purposes of the Act. The Tribe had
argued, and the Court agreed, that Congress had conferred only limited authority
on the Secretary: the authority to verify that the Tribe had acquired the land using
income or interest from the MILCSA Self-Sufficiency Fund (Id., at *3).2
Having vacated the Secretary’s denial, consistent with its earlier observation
at the outset of its legal analysis that it could only sit as an appellate tribunal on
legal issues under the federal Administrative Procedures Act (Id., at *5), the
District Court remanded the matter to the Secretary for an agency finding of fact
that the Tribe had purchased the land with income and interest from the Self-
Sufficiency Fund established for the Tribe under MILCSA. The administrative
record contains unopposed factual evidence of that funding source, and of the need
for the land-starved Tribe to benefit its virtually landless tribal members
2 As an alternative ground for vacatur, insofar as and if the relevant provisions of
MILCSA were deemed ambiguous, as discussed infra, note 3.
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(particularly its elders), including those scattered throughout seven counties in the
Upper Peninsula and the more than 14,000 members living near the purchased
lands in the Lower Peninsula (See Exhibits B-E attached).
Plaintiffs’ Corrected Complaint (the (Complaint”) only obliquely mentions
that success and fails to provide the Court with the Memorandum Opinion in DC
Lawsuit. Plaintiffs appear to have filed suit to continue to avoid their funding
responsibilities as provided in Recital I of their Agreement, including the legal
expenses for that successful litigation, which the Tribe has funded on its own.
Instead of working toward progress through that litigation, Plaintiffs’ filing of a
suit and their attempt to encumber land held by the Tribe impedes that progress.
As the March 5, 2019 Notices of Default issued to the Developers state (see
Pl. Ex. 8 (ECF 5-7) and Exhibit F attached), Plaintiffs have ceased to reimburse
Kewadin for project expenses since the fall of 2017, despite documentation of
those expenses by Kewadin, by complaining about the litigation strategy of the
Washington DC law firms that Plaintiffs insisted Kewadin hire in the first place.
At this writing, they have not cured that default and have lost the right to seek their
Developers’ fees under the non-recourse and non-demand notes to be paid, as they
agreed, only out of the “Operating Expenses and Equipment” of the new casinos
when those casinos began operating.
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The Tribe’s self-governance documents and the Agreements at issue contain
express limitations and conditions on the purported limited waiver of tribal
sovereign immunity that preclude Plaintiffs’ claims, and their claims for equitable
and other relief. As this Court has recognized, a tribe can limit the scope of its
waiver of sovereign immunity by placing any conditions or limitations on the
waiver. Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, 259 F. Supp.3d
713, 720 (W.D. Mich. 2017).
For the reasons discussed in this Memorandum, this Court should dismiss
Plaintiffs’ Complaint with prejudice for lack of “threshold” federal jurisdiction
and/or for lack of federal subject matter jurisdiction, pursuant to Fed. R. Civ. P.
12(b)(1) and/or (6). This Court should also dismiss Plaintiffs’ Declaratory
Judgment Act claim and requested relief because Plaintiffs cannot establish “live
case or controversy” standing and should enter declaratory and injunctive relief in
favor of Kewadin and the Tribe precluding the Plaintiffs from seeking to enforce
any encumbrances, constructive trusts or liens on tribal land or tribal assets.
I. STATEMENT OF FACTS
A. The Tribe’s Success in Vacating the Secretary’s Denial of Its
Mandatory Trust Submission Marks Progress Towards Economic
Self-Sufficient that Plaintiffs’ Ill-Timed Lawsuit Impedes.
In the DC Lawsuit, funded by the Tribe because of the Developers’
continuing default from 2017 to the present, the District Court vacated the
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Secretary of Interior’s denial of the Tribe’s Mandatory Land-To-Trust Submission
(the “Submission”) and his refusal to take the 71 acres in New Boston into trust for
potential gaming (See Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt,
Exhibit A attached, 2020 WL 1065406, at *1). First, the Court held that, under
MILCSA’s clear language, Congress did not accord the Secretary any discretion to
scrutinize the purposes for which the Settlement Funds were to be spent. As the
Court noted, MILCSA Section 108(e)(2) provides that “[n]otwithstanding any
other provision of law,” the Secretary’s approval . . .for any payment or
distribution from the principal or income of the [Self-Sufficiency Fund created
under the Act for the Tribe” shall not be required and [he] shall have no trust
responsibility for the investment, administration, or expenditure of the principal or
income.” (Id., at *2). Moreover, the Court noted that MILCSA Section 108(f)
directs that “a]ny lands acquired using amounts from interest or other income of
the “Fund” shall be held in trust by the Secretary for the benefit of the tribe.” (Id.).
Second, the Court ruled that the Secretary had applied an impermissible
interpretation of the statutory term “enhancement of tribal lands.” (Id., at *6).
Having found that the Secretary had overstepped his authority, the Court
vacated the denial of the Mandatory Trust submission.3 Because the Secretary had
3 As an alternative ground for vacatur, insofar as the relevant provisions of
MILCSA were deemed ambiguous, then the District Court declined to accord
Chevron deference to the Department’s interpretation of the statutory term
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made no finding as to the source of the funds used to purchase the land, the Court
remanded to the agency for such a finding. As the Supplemental Affidavit of
William Connolly submitted in the DC Lawsuit, the funds to purchase the lands came
from the separate account maintained for the interest and income of the Self-
Sufficiency Fund (Exhibit B attached).
Moreover, as all of the parties recognized at the consolidated hearings on the
motions of the original parties and the intervenor parties, litigation over land
acquisition into trust is not “the last stop” on the road to gaming on those lands, but a
prelude to a gaming application (if any) submitted to the National Indian Gaming
Commission (“NIGC”) under the Indian Gaming Regulatory Act, 25 U.S.C. §2701 et
seq. (“IGRA”) (Id., at *22). The Court reviewed the considerable support provided
by the Tribe (as additional arguments had the Court reached those arguments) in
some depth to demonstrate that the land acquisitions represented consolidation or
enhancement within the meaning of MILCSA, including affidavits the distribution of
tribal members in the Lower Peninsula near both the New Boston and Lansing
parcels, demonstrating the falling income of the 1993 Compact tribes in the Upper
Lower Peninsula and the Upper Peninsula after the advent of the Michigan Lottery
“consolidation or enhancement,” afforded the Department a form of “Skidmore
respect,” but followed the Indian canon of construction and deferred to the Tribe’s
interpretation of that phrase as more beneficial to the Tribe (2020 WL 1065406, at
*20), County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 269 (1992);
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).
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and the private and tribal intervenors’ casinos in the Lower Peninsula near more
densely populated areas of non-tribal patrons, and the need for affordable housing for
the tribal members living near those parcels (See Exhibits C-E submitted herewith).
Within twelve days after the District Court granted the Tribe vacatur of the
Secretary’s decision, Plaintiffs filed their Complaint, seeking relief and bringing
claims outside the limitations and conditions placed on the limited waiver of
sovereignty in Section 6.3 of the Agreements, contractual limitations consistent with
tribal self-governance documents and federal common law on tribal sovereignty.
B. The Amended and Restated Agreements Between Each Plaintiff and
Kewadin Impose Identical Express Limitations and Conditions
Precedent Before Any Purported Limited Waiver of Tribal Sovereignty
Immunity Becomes Effective.
1. The Agreements Impose Limitations and Restrictions on Remedies and
Claims Before the Limited Waiver of Sovereign Immunity is Effective.
Section 6.3 of both Agreements, read as a whole, is consistent with retention
of tribal sovereignty and grants a limited waiver of sovereignty immunity by
Kewadin only when certain limitations and conditions are fulfilled.
Section 6.3.2 makes clear that the limited waiver of sovereignty immunity is
“subject to” all of the provisions of Section 6.3:
Section 6.3.2: Scope of Waiver. Subject to the provisions of
Section 6.3, the Gaming Authority hereby expressly waives
the jurisdiction of any courts of the Tribe and expressly
provides a limited waiver of its sovereign immunity from suit
and consents to suit in accordance with and pursuant to the
terms and provisions of Section 6.3.1. Notwithstanding any
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term or provision of this Agreement or any of the other
Transaction Document to the contrary, for purposes of this
Section 6.3, the Gaming Authority's waiver of its sovereign
immunity from suit pursuant to and in accordance with the
terms and provisions hereof shall be deemed an express and
explicit waiver of any sovereign immunity only of the Gaming
Authority, and both the Gaming Authority and the Gaming
Authority [sic] shall, upon request from Developer, execute
and deliver such documentation as Developer shall
reasonably request for the purposes of verifying the
effectiveness of the Gaming Authority's waiver of its
sovereign immunity pursuant to the terms and provisions
hereof.
(Pl. Exs. 2 and 3 (ECF 5-2, PageID.259 and ECF 5-3, PageID.304, respectively
(emphasis added)).
Section 6.3.1 simply addresses the forum in which suit may be brought and
the choice of laws, both consistent with retention of tribal sovereignty, which
arises under federal law articulated in federal rules of decision:
Section 6.3.1: Governing Law. The Parties agree that any
dispute arising out of or in connection with this Agreement
of the other Transaction shall be resolved first pursuant to
applicable federal law; second, pursuant to applicable State
law; and third, pursuant to the applicable laws of the Tribe if
no State or federal law applies. The parties designate the
United States District Court for the Western District of
Michigan as the forum for any litigation arising out of or
relating to the Gaming Authority. Notwithstanding the
foregoing, as to any dispute to which the Uniform
Commercial Code would apply, that Code, as adopted by the
State, shall apply.
(Pl. Exs. 2 and 3 (ECF 5-2, PageID.259 and ECF 5-3, PageID.304, respectively).
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Further, Section 6.3.3 clearly and expressly explains that no waiver of
Kewadin’s tribal sovereignty is effective unless each and every one of the
following procedural requirements is met:
Section 6.3.3: Procedural Requirements. The Gaming
Authority's waiver of its sovereign immunity as to
unconsented suit is effective if, and only if, each and every
one of the following conditions is met:
A. The claim is made by a party designated under Section
6.3.5hereof [sic], and not by any other person, corporation,
partnership or entity, whatsoever;
B. The claim alleges a breach by the Gaming Authority of
one or more specific obligations or duties assumed pursuant
to the terms and provisions of this Agreement or the other
Transaction Documents; and
C. The claim seeks money damages for noncompliance
with the terms and provisions of this Agreement or any of the
other Transaction Documents, specific performance of this
Agreement of any of the Transaction Documents, and/or
injunctive relief related to the claimed noncompliance;
provided, however, that the property, assets or funds
specifically pledged and assigned to satisfy any judgment
Developer secures against the Gaming Authority under this
Agreement shall be limited to the Operating Profits and the
Equipment.
(Pl. Exs. 2 and 3 (ECF 5-2, PageID.259 and ECF 5-3, PageID.304, respectively
(emphasis added)).
Under Section 6.3.5 of both Agreements, only the Developer and its
successors or assigns are proper parties, in relevant part.4 (Pl. Exs. 2 and 3 (ECF 5-
4 The indemnification provisions referenced in Section 6.3.5 cover third-party
claims not in issue here.
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2, PageID.260 and ECF 5-3, PageID.305, respectively). Section 6.3.7.1 of both
Agreements reinforces the limitation on property, assets or funds specifically
pledged for enforcement proceedings in Section 6.3.3(C) in no uncertain terms:
“The only assets of the Gaming Authority which shall be available, and which
are thus specifically pledged and assigned hereby, to satisfy any enforcement
proceedings or judgment in connection with this Agreement or the other
Amended and Restated Transaction Documents shall be limited to the
Operating Profits and the Equipment[.]” (Id.).
2. The Agreements Enforce Those Procedural Requirements as to
Developer Expenses, Claims and Claimed Relief.
Both Agreements contemplate in Recital I, in pertinent part, that the
Developers were to advance funds for the Mandatory Trust Submissions, for the
agency determination that the land purchased with loans reflected in the non-
recourse promissory notes would be gaming eligible under Section 20 of IGRA
(i.e., 25 U.S.C. 2719(b)(1)(B)(i) (land taken into trust after October 17, 1988
pursuant to settlement of a land claim, in this case under MILCSA), and for
litigation asserting and defending the Tribe’s legal right to undertake those
activities:
The Parties acknowledge that development and funding for the
Facility and any Temporary Facility will include, but not be
limited to (i) petitioning the United States to acquire title to the
Real Property in trust for the benefit of the Tribe, (ii) securing
any necessary determination that the Real Property constitutes
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“Indian Lands” of the Tribe and are gaming eligible pursuant to
IGRA, including Section 20 thereof, (iii) asserting through
litigation the Tribe's legal right to undertake the above
activities, including defending challenges to various aspects of
the land-in-trust process, the "Indian Lands" determination,
and challenging the jurisdiction of the State . . . and (vi)
advancing as a limited recourse loan or loans the funds
necessary to accomplish all necessary and appropriate pre-
construction activities and presenting proposals for leasing of
Equipment on mutually agreeable terms.
(See Pl. Ex. 1 (ECF 5-2, PageID.240);5 Pl. Ex. 2 (ECF 5-3, Page ID.285).6
Section 1.2.2 of the Agreements both acknowledged the Developers’
obligation to provide funding for expenses, including the litigation expected for
taking the land into trust and provided that:
Section 1.2.2. Pre-Construction Period Expenses. Including
the Pre-Effective Date Expenses, Developer agrees to advance
an amount not to exceed $5,000,000 for the purpose of
acquiring the Real Property and funding those other expenses
referenced in Recital I to this Agreement ( collectively, the
“Pre-Construction Expenses”). Such Pre-Construction Period
Expenses shall be incurred only pursuant to a budget approved
in writing by the Parties and shall be repaid by the Gaming
Authority pursuant to the form of promissory note in the form
attached as Exhibit B (the “Pre-Construction Note”). The Pre-
Construction Note shall clearly state that it is assignable by the
Developer, that the sole source of repayment shall be the
Operating Profits and that it is subject to the limitations on
5 Plaintiffs’ Exhibit 1 (ECF 5-2) contains both the Agreement between Lansing
Future Development and Kewadin and a later-signed but undated Memorandum of
Understanding (“MOU”) submitted to the Department via email on May 4, 2013,
according to Plaintiffs’ Exhibit 3 (ECF 5-5, PageID.337 – PageID.338). 6 Plaintiffs’ Exhibit 2 (ECF 5-3) did not include its later-signed Memorandum of
Understanding submitted as described in note 4, supra. For the Court’s and the
parties’ convenience, both MOUs are submitted as Exhibit G herewith.
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repayment referenced in Section 1.2.6 of this Agreement.
(See Pl. Exs. 1 and 2 (ECF 5-2, PageID. ___ and ECF 5-3, PageID.___,
respectively (emphasis added).) First, this Section does not expressly assign the
task of a budget only to Kewadin, as Plaintiffs complain in Paragraphs 10 and 23
of their Complaint (ECF 5, PageID.204 and PageID.209 – PageID.210): either
party could devise a budget and in 2012 Plaintiffs’ representative agreed to
develop the budget and memorialized that agreement in a written memo (See
Exhibit H attached).
Moreover, contrary to the suggestion in Paragraphs 22-25 of Plaintiffs’
Complaint that the Agreements required Kewadin to create budgets and to employ
a Development Coordinator and a Project Manager (Complaint, ECF 5,
PageID.209 – PageID.210),7 Plaintiffs’ own Exhibit 4 shows that the NIGC
concluded that the Developers had authority over budgets during the pre-opening
phase. While Plaintiffs stretch that period beyond the Pre-Construction Period to
Article 2 (construction of the Temporary Facility), the parties have not moved
into the Article 2 phase of the Agreements, as this Court may discern from the
absence of any promissory notes under Section 1.2.3 of the Agreements for
7 Plaintiffs also erroneously allege in footnote 4 that the NIGC “approved” the
Agreements, when Plaintiffs’ Exhibit 4 establishes that the NIGC just opined, in
part based on the 2013 MOUs, that those Agreements were neither management
contracts nor violated the sole proprietary interest standard. (Pl. Ex. 4, ECF 5-5,
PageID.338).
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loans to cover Temporary Facility construction expenses. (See generally, Pl.
Exs. 2 and 3 (ECF 5-2, PageID.241- PageID.242 and ECF 5-3, PageID.286 –
PageId.287, respectively).
The non-recourse promissory notes issued under Article 1 (i.e., the Pre-
Construction Period) incorporate Section 1.2.6 by reference and expressly
recognize that payments made to satisfy such loans shall flow only from the
‘Operating Profits’ derived from the Gaming Authority from operations at the
Temporary Facility and the Facility.” (Pl. Ex. 5-7, PageID.352 – PageID.353,
PageID.356 – PageID.357, PageID.366 – PageID.367, PageID.368 – PageID369,
PageID.373 – PageID.374, and PageID.378 – PageID.379).8 The March 4, 2019
Amended Notes recognize that they are to conform to all terms and conditions of
the Agreements (Pl. Ex. (ECF 5-7, PageID.366 – PageID.377, PageID.378 –
PageID.379).
Both 2013 MOUs also expressly acknowledge those limitations of claims
and claimed relief (see Exhibit G, both MOUs, p. 1, ¶C), as well as Recital H
8 Contrary to the suggestion in Paragraphs 22 and 23 (and the erroneous claims that
the NIGC demanded to approve and “approved” the Agreements when it simply
recommended the preparation of the 2013 MOUs and opined that the Agreements
did not fall into the category of management contracts or the parties have not
moved into Article 2 phase of the Agreements, which this Court may discern
from the absence of any promissory notes for Temporary Facility expenses.
(See generally, Pl. Exs. 2 and 3 (ECF 5-2, PageID.241 – PageID.242, and ECF
5-3, PageID.286 – PageID.287, respectively).
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(regarding land acquisition processes and the subsequent processes under IGRA)
in the Agreements (See Recital H in Pls. Ex. 1 and 2, (ECF 5-2, PageID.240 and
ECF 5-3, PageID.285, respectively).
C. The Tribe’s Self-Governance Documents Contain Express Limitations
for Waivers of Tribal Sovereignty Immunity.
The Tribe created Kewadin as a governmental instrumentality of the Tribe
with an autonomous existence for the purpose of overseeing licensed gaming
activities regulated under IGRA, and consistent with federal law, as demonstrated
in the Gaming Authority Charter (Chapter 94, attached as Exhibit I (“Charter”), §§
94.101, 94.105(1)), and the Tribe’s federally approved Gaming Ordinance
(Chapter 42, attached as Exhibit J (“Gaming Ordinance”), §§42.103, 42.104(2),
42.216, 42.713 (authorized under IGRA and the Tribe’s Constitution (attached as
Exhibit K) and to be administered in compliance with IGRA and federal
regulations).9 The Gaming Ordinance is to be liberally construed in favor of the
Tribe (Ex. J, § 42.104(1)).
9 Tribal ordinances, available on the Tribe’s Web site at www.saulttribe.com,
where sophisticated investors like Plaintiffs can access them, describe Kewadin,
the sovereign immunity of Kewadin and the Tribe, the prescribed limitations on
any purported waiver of sovereign immunity or of jurisdiction in order for the
waiver to be effective, the specifics and requirements of each waiver, and the
manner in which any purported waiver of sovereign immunity or jurisdiction must
be passed by the Board. The Court may take judicial notice of these publicly
available documents for a Rule 12(b)(1) or (6) motion without converting the
motion into a Rule 56 summary judgment motion. New England Health Care
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Under the Charter, Kewadin is not empowered to waive the sovereign
immunity of the Tribe (Exhibit I, Charter, § 94.111(1)).
No purported waiver of the sovereign immunity of Kewadin is effective
unless it is made by express resolution to waive sovereign immunity by Kewadin
Management Board (Exhibit I, Charter § 94.111(2)). Even if a Board resolution
were to supply such a waiver, such a waiver does not become a vested contractual
right unless it is attached to the subject contract. (Chapter 44, Waiver of Tribal
Immunities Ordinance (“Tribal Immunities Ordinance”) attached as Exhibits L
(2015) and M (2009), § 44.110).10
In addition, the Tribal Code imposes limitations and conditions on any
limited waiver of sovereign immunity so that the waiver becomes effective if and
only if it complies with those limitations and conditions. No waiver is effective
unless it fulfills the specific requirements set forth in § 44.105 as to the Tribe and §
44.107 as to Kewadin (Chapter 44, attached as Exhibits L and M). Those
conditions require that waivers of sovereign immunity and jurisdiction must be
Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir.
2003). 10 In 2009, the Tribal Immunities Ordinance contained a § 44.108, since repealed.
(See Exhibit M, 2009 Tribal Immunities Ordinance, § 44.108). However, § 44.110
remained the same through 2009 to the present as a condition precedent for a
vested contractual right regarding a waiver of sovereign immunity or jurisdiction if
a contract did not incorporate the Board resolution waiving sovereign immunity or
jurisdiction (See Exhibits L and M, § 44.110).
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specific and limited as to duration, transaction, property or funds of the Tribal
entity subject to the waiver, and specific as to jurisdiction and applicable law;
moreover, neither a sue and be sued clause nor a Board resolution waiving
immunity or jurisdiction may be deemed to consent to a judgment against the
Tribal entity (Id.). Only the Board of Directors may waive the jurisdiction of the
Tribal Court (Id., § 44.109).
D. Plaintiffs’ Complaint Seeks Relief and Claims Beyond the Scope of The
Limitations Imposed by Their Agreements and/or by the Self-
Governance Documents on the Limited Waiver of Tribal Sovereignty.
Plaintiffs bring a declaratory judgment “claim (Count I (ECF 5, PageID.216
– PageID.218), a breach of contract claim (Count II (ECF 5, PageID.218 –
PageID.225), five tort or equitable claims (Count III – negligent/innocent
misrepresentation (ECF 5, PageID.225 – PageID.226); Count IV – rescission (ECF
5, PageID.226 – PageID.228); Count V – for equitable accounting (ECF 5,
PageID.228 – PageID.229); Count VII – for equitable lien on land and operating
expenses (ECF 5, PageID.; Count VIII – constructive lien on land), all of
whichseek relief beyond those same limitations on relief and assert claims beyond
the limitations on the limited waiver of sovereignty in Section 6.3 of the
Agreements. (Id.) Moreover, the integration clause of each Agreement (See:
Section 6.7, Pl. Exs 1 and 2 (ECF 5-2, PageID.263 and ECF 503, PageID.308) bars
the claims themselves to the extent that they rely on oral representations and seek
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equitable remedies for purported tortious conduct. The Complaint’s remaining two
claims (Count VI – promissory estoppel (ECF 5, PageID.229 – PageID.231) and
Count IX – implied in law contract (ECF 5, PageID.234 – Page ID.235) cannot
survive dismissal because of the same limitations. In addition, the counts fail
because express contracts governing the same subject matter bar promissory
estoppel claims and/or implied-in-fact contracts, as the integration clause in
Section 6.7 of each Agreement recognizes (Pl. Exs. 1 and 2 (ECF 5-2, PageID.263
and ECF 5-3, PageID.308).
E. Plaintiffs Defaulted on Their Funding Obligations Without Cure.
The Tribe’s January 4, 2018 Notice of Default and May 17, 2018 to each
Developer notifies each of the unacceptable default in providing investment
funding (see Pl. Ex. 8 (ECF 5-7, PageID.380 – PageID.392) and Exhibit F
attached).11 Although Plaintiffs included their own January 23, 2018 Notices of
Default under each Agreement (Id., alleging the same litany of lack of budget from
Kewadin, lack of Development Coordinator and Project Manager (not required in
the Pre-Construction stage), and their disagreement with the litigation strategy of
the very legal team they urged Kewadin to engage). Kewadin’s Notices of Default
11 Plaintiffs fail to include Kewadin’s May 17, 2018 responses (Exhibit F) to their
January 23, 2018 Notices.
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invoked Sections 5.3.2 of the Agreements to the effect that the cure period for non-
payment of any expenses since 2017 had long past (Id. and Ex. F).
II. ARGUMENT
A. Legal Standard
Under the Rule 12(b)(1), “when [a] defendant challenges lack subject matter
jurisdiction through a motion to dismiss, the plaintiff bears the burden of
establishing jurisdiction. Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002)
(citations omitted).
Under the Rule 12(b)(6) pleading standard on a motion to dismiss a
complaint must contain sufficient specific factual matter to state a claim to relief
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007). “[M]ere conclusions. . .are
not entitled to the presumption of truth. While legal conclusions can provide the
complaint’s framework, they must be supported by factual allegations.” Igbal, 556
U.S. at 664. “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
B. Sixth Circuit Precedent Confers Sufficient Jurisdiction on this Court to
Determine the Threshold Issue of Tribal Sovereign Immunity.
In Spurr v. Pope, 976 F.3d 478, 482-83 (6th Cir. 2019), cert. den. 140 S.Ct.
850 (Jan. 13, 2020), the Sixth Circuit has instructed that tribal sovereignty is a
jurisdictional issue that must and should be determined first, even before a court
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reaches the issue of federal question jurisdiction. Memphis Biofuels LLC v.
Chickasaw Nations Ind., Inc., 585 F.3d 917, 919-920 (6th Cir. 2009). The Court
also recognized that Congress had not waived tribal sovereignty in either 28 U.S.C.
§§ 1331 or 1362. In doing so, the Sixth Circuit clearly distinguished between
federal jurisdiction over claims and defenses against such claims: “[T]he fact that
Congress grants jurisdiction to hear a claim does not suffice to show Congress has
abrogated all defenses to that claim.” Spurr, 2019 WL 4009131, at *4 (quoting
Blatchford v. Native Vill. Of Noatak & Circle Vill., 501 U.S. 775, 786, n. 4 (1991).
For the reasons discussed in Part II.B and II.C., and pursuant to Rule
12(b)(1), this Court dismiss Plaintiff’s Complaint with prejudice because tribal
sovereign immunity functions as a jurisdictional bar to Plaintiffs’ claims.
C. A Purported Waiver of Tribal Sovereign Immunity By A Tribe or a
Tribal Entity Must Be Express, Clear and Unequivocal To Be
Enforceable.
On their face, Plaintiffs’ Agreements raise the issues of tribal sovereign
immunity in contracts relating to commercial activities. As federal courts have
recognized, tribal immunity is a matter of purely federal law. Kiowa Tribe of
Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998); South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 343 (1989). It shields not only a tribe, but also arms of
the tribe acting on its behalf. Spurr, 976 F.3d at 983; Memphis Biofuels, 585 F.3d
at 921; Kiowa Tribe, 523 U.S. at 754-55. In this case, Kewadin and the Tribe both
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remain immune from suit, and the case should be dismissed with prejudice for
want of subject matter jurisdiction under Rule 12(b)(1) and/or (6).
Indian tribes are “separate sovereigns pre-existing the Constitution,”
“domestic dependent nations that exercise inherent sovereign authority,” and
enjoy the “common law immunity from suit traditionally employed by sovereign.”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014) (quoting Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). A tribe’s inherent sovereign
authority encompasses “extensive powers over [its] property.” Cohen’s
Handbook of Federal Indian Law § 4.01[2][c] (2012). “[C]ourts will not lightly
assume that Congress in fact intends to undermine Indian self-government.”
Michigan, 572 U.S. at 790. “The baseline position . . .is tribal immunity, and to
abrogate such immunity, Congress must unequivocally express that purpose.” Id.
(internal quotations marks omitted and edits accepted).
Suits against Indian tribes are barred by sovereign immunity absent a clear
and unequivocally expressed waiver of immunity by the tribe or by congressional
abrogation. Kiowa Tribe, 523 U.S. 754; Okla. Tax Comm’n v. Citizen Band
Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Indian tribes are
domestic dependent nations that exercise inherent sovereign authority over their
members and territories. Suits against Indian tribes are thus barred by sovereign
immunity absent a clear waiver by the tribe or congressional abrogation.” (internal
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quotation marks and citation omitted)). Nor is immunity from suit confined to
transactions on reservations and to governmental activities. Kiowa Tribe, 523 U.S.
at 755. Any doubt of any intent to abrogate sovereign immunity must be resolved
in favor of Indian tribes. Bryan v. Itasca Cty., Minn., 426 U.S. 373, 392 (1976).
Sovereign immunity is a matter of purely federal law, Yankton Sioux Tribe,
522 U.S. at 343, and “[m]uch like foreign sovereigns, Indian tribes have an interest
in a uniform body of federal law in this area.” Contour Spa at the Hard Rock, Inc.
v. Seminole Tribe of Florida, 692 F.3d 1200, 1202, 1206-07 (11th Cir. 2012).
A tribe’s “waiver of sovereign immunity cannot be implied but must be
unequivocally expressed.” Santa Clara Pueblo, 436 U.S. at 58 (internal quotation
marks omitted); see also: C&L Enter., Inc. v. Citizen Band Potowatomi Indian
Tribe of Okla., 532 U.S. 411, 418 (2001) (“[T]o relinquish its immunity, a tribes”
waiver must be clear.”
Here, the Agreements never waive the Tribe’s immunity (see Sections 6.3.2
limiting the waiver of immunity only to Kewadin (the “Gaming Authority”).
Under the Gaming Charter, Kewadin is not empowered to waive the sovereign
immunity of the Tribe (Ex. I, Charter, § 94.111(1)). Moreover, Section 6.3.7.1 of
the Agreements provides that the “only assets of the Gaming Authority which shall
be available . . . to satisfy any enforcement proceedings or judgment in connection
with this Agreement or the other Transaction Documents shall be limited to the
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Operating Profits [defined in Section 4.1.3 as gross receives and revenues derived
from operations at the Temporary Facility or Facility, less certain deductions] and
the Equipment.” Nonetheless, Plaintiffs seek to encumber the Tribe’s land and the
Tribe’s and Kewadin’s assets with equitable and/or constructive liens imposed as
declaratory relief and equitable relief in Counts I, VII, and VIII of Plaintiffs’
Complaint.
Given the overreaching nature of their suit, and their default in providing the
promised funding for the expenses (including litigation) of taking land into trust
and seeking gaming rights under IGRA, this Court should dismiss Plaintiffs’
claims for liens and equitable encumbrances as unenforceable, pursuant to Rule
12(b)(1) and/or (6).
D. Plaintiffs’ Claims Seek Relief Beyond the Limitations Placed on Any
Purported Limited Waiver of Tribal Sovereign Immunity Permitted
Under Tribal Self-Governance Documents and in the Agreements.
As noted above in Part I.C., the Sault Tribal Code imposes limitations and
conditions on any limited waiver of sovereign immunity so that the waiver
becomes effective if and only if it complies with those limitations and conditions.
No waiver is effective unless it fulfills the specific requirements set forth in §
44.105 as to the Tribe and § 44.107 as to Kewadin (Chapter 44, attached as
Exhibits L and M). Those conditions require that waivers of sovereign immunity
and jurisdiction must be specific and limited as to duration, transaction, property or
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funds of the Tribal entity subject to the waiver, and specific as to jurisdiction and
applicable law; moreover, neither a sue and be sued clause nor a Board resolution
waiving immunity or jurisdiction may be deemed to consent to a judgment against
the Tribal entity (Id.).
Despite their default over almost 2½ years, after an initial victory in the DC
Lawsuit funded solely by the Tribe after Plaintiffs’ default, Plaintiffs now file a
suit harmful to the Tribe’s and Kewadin’s reputation and their ability to find
investment partners for their projects for economic self-sufficiency and diversity.
Plaintiffs now demand that the Court reform their Agreements and turn their non-
recourse notes into immediate demand notes, during the COVID-19 pandemic
when casinos are closed for public health reasons, so that Plaintiffs can
immediately claim $124,000,000 dollars in “developers fees” and slap liens or
trusts on the Tribe’s landholdings and on the Tribe’s and Kewadin’s property.
Here, as detailed above in Parts I.C. and D., Plaintiffs’ claims do not
conform to the scope of permissible claims and remedies detailed in Section 6.3.3
of their Agreements, limitations and conditions reflecting tribal self-governance
documents. Here, as in Lesperance, this Court should dismiss Plaintiffs’ claims.
Lastly, Plaintiffs’ implied in fact contract and promissory estoppel claims
must fall under the well-settled principle of contract law that an express contract
governing the same subject matter (as here, the complex Agreements do) precludes
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any such implied or quasi-contract claims. See: Eungard v. Open Solutions, Inc.,
517 F.3d 891, 899 (6th Cir. 2008) (citing Scholz v. Montgomery Ward & Co. 437
Mich. 83, 93, 468 N.W.2d 845 (1991).
Accordingly, this Court should dismiss Plaintiffs’ Complaint in its entirety
with prejudice under Rule 12(b)(1) or (6).
E. This Court Should Dismiss Plaintiffs’ Declaratory Judgment Act Claim
Because Plaintiffs Cannot Establish Standing and Should Declare and
Enjoin Plaintiffs’ Claimed Relief as Unavailable and Unenforceable
Against the Tribe and Kewadin.
Standing is a necessary and threshold legal issue, particularly given the live
case or controversy requirement in the federal Declaratory Judgment Act, 28 U.S.C.
§§ 2201-2202. To establish standing, a plaintiff must (1) have suffered an “injury
in fact” to a legally protected interest; (2) demonstrate a causal connection between
the alleged injury and the conduct at issue; and (3) redressability by the court. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs’ claimed
injury from Kewadin’s failure to supply a budget, to continue on the failed course of
approaching the Secretary (then Zinke) for a political resolution, and to appoint a
Project Manager and a Development Coordinator before entry in the Temporary
Facility Construction phase rose to the level of a concrete or particularized injury
caused by Kewadin, or that the length of the process were somehow Kewadin’s fault
(even after they defaulted, leaving the Tribe to fund the successful DC Lawsuit),
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Plaintiffs cannot, as a matter of law, establish redressability. This Court lacks
jurisdiction and cannot order liens and encumbrances the lands and assets of a
separate sovereign where, as here, there has been no clear and unequivocal waiver
of tribal sovereignty immunity. For the reasons discussed above, in Parts II.B.-D.,
Plaintiffs cannot establish redressability; thus, they cannot establish jurisdiction in
this Court over Count II of their Complaint. As a result, this Court should dismiss
Count II and enjoin Plaintiffs from seeking to enforce, in any federal or state court,
the unenforceable and unavailable remedies they seek therein.
CONCLUSION
For the reasons discussed above, Defendant Kewadin Casinos Gaming
Authority requests that this Court grant its Motion to Dismiss and dismiss
Plaintiffs’ Claims with prejudice, pursuant to Rule 12(b)(1) and/or (6). Kewadin
also requests that this Court award Defendant its attorney’s fees and expenses so
wrongfully incurred in defending this action.
Respectfully submitted
/s/ Diane M. Soubly
Diane M. Soubly (P32005)
BUTZEL LONG, a professional corporation
Counsel for Defendant
301 E. Liberty St., Suite 500
Dated: May 7, 2020 Ann Arbor, MI 48104
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CERTIFICATE OF COMPLIANCE
I, Diane M. Soubly, hereby certify in compliance with LCivR 7.2(b) that the
Word Count of this Memorandum of Law is 6, 943 words; that the pages of this
Memorandum do not exceed 25 pages; and that the font used is Times New Roman
14, in compliance with the Local Civil Rules of this Court.
/s/ Diane M. Soubly
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CERTIFICATE OF SERVICE
I hereby certify that, on May 7, 2020, I caused the foregoing documents (the
Memorandum of Law in support of Defendant’s Motion to Dismiss Plaintiffs’
Complaint and/or for Declaratory Judgment and Injunctive Relief and Exhibits in
support of same to be filed electronically by CM/ECF, which caused notice to be
sent to all counsel of record.
/s/Diane M. Soubly
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