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Rape v. Poarch Band of Creek Indians

Supreme Court of Alabama

September 29, 2017

Jerry Rape
Poarch Band of Creek Indians et al.

         Appeal from Montgomery Circuit Court (CV-11-901485)

          MURDOCK, Justice.

         The Court today decides three appeals involving similar issues of Indian tribal sovereign immunity and subject-matter jurisdiction arising out of actions filed by various plaintiffs against the Poarch Band of Creek Indians ("the

          Tribe"), and business entities wholly owned by the Tribe, and, in two of these cases, including this one, individual defendants. In addition to the present case, the Court today addresses the appeals before us in Harrison v. PCI Gaming Authority, [Ms. 1130168, September 29, 2017] __So. 3d__ (2017), and Wilkes v. PCI Gaming Authority, [Ms. 1151312, September 29, 2017] __So. 3d__ (2017). In each case, the circuit court granted a motion to dismiss the claims against the Tribe and its related business entities on one of those two grounds.

         In the present case, Jerry Rape appeals from the Montgomery Circuit Court's dismissal of his action alleging breach of contract and various tort claims against the Tribe, PCI Gaming Authority, Creek Indian Enterprises, LLC, and Creek Casino Montgomery ("Wind Creek Casino" or "Wind Creek") (hereinafter referred to collectively as "the tribal defendants") and casino employees James Ingram and Lorenzo Teague and fictitiously named defendants. Because the plaintiff has no viable path to relief, we affirm.

          I. Facts and Procedural History

         On November 19, 2010, Rape and his wife visited Wind Creek Casino. At approximately 8:00 p.m., Rape inserted five dollars into a machine the complaint describes as an "electronic bingo gaming machine." The complaint alleges that "during a ... spin bet, " the machine indicated a winning jackpot in the approximate amount of $459, 000. Immediately thereafter, the machine indicated a payout multiplier of approximately $918, 000, followed by an indication of a second payout multiplier of approximately $1, 377, 015.30. Several noises, lights, and sirens were activated when the machine displayed the payout amount. The screen then displayed a prompt to "call an attendant to verify winnings."

         Rape alleged that at that point he was approached and congratulated by casino employees and patrons and that one casino employee said to him: "[D]on't let them cheat you out of it."[1] Rape alleged that the machine printed out a ticket containing the winning amount of $1, 377, 015.30 but that representatives of Wind Creek Casino took possession of the ticket and refused to return it to him. Rape was then taken by tribal officials or casino employees into "a back room, " where they discussed how Rape's winnings would be paid, mentioning the possibility of a structured payout over a period of 20 to 30 years. Those officials then instructed Rape that he had to wait outside the room while they "called PCI" to confirm his winnings.

         Rape alleged that he was made to wait into the early morning hours with no information provided to him, even though he saw several individuals entering and leaving the room, presumably to discuss the situation. Rape also stated that casino employees shut down and barricaded the machine in question so that it could not be patronized by other customers of Wind Creek Casino.

         At 6:00 a.m. on November 20, 2010, Rape went home for a time before returning to Wind Creek Casino at approximately 11:00 a.m. In his complaint, Rape stated that, at approximately 9:00 p.m. on November 20, he

"was taken into a small room in the rear of [Wind Creek Casino] by casino and/or tribal officials, where he was told, in a threatening and intimidating manner, that the machine in question 'malfunctioned, ' and that [Rape] did not win the jackpot of $1, 377, 015.30. [Rape] was given a copy of an 'incident report, ' and left [Wind Creek Casino] empty-handed approximately 24 hours after winning the jackpot."

         On November 16, 2011, Rape sued the defendants in the Montgomery Circuit Court. He alleged claims of breach of contract; unjust enrichment; misrepresentation; suppression; civil conspiracy; negligence and/or wantonness; negligent hiring, training, and/or supervision; respondeat superior; and spoliation of evidence. For each claim, Rape requested damages in the amount of the jackpot he had allegedly won at Wind Creek Casino on November 19, 2010.

         On January 20, 2012, the defendants filed a motion to dismiss Rape's complaint. All the defendants argued that the claims against them were barred by the doctrine of sovereign immunity and that the Tribe's court had exclusive adjudicative, or subject-matter, jurisdiction of any claim. On April 12, 2012, the circuit court held a hearing on the motion. On May 2, 2012, the circuit court entered a two-word order: "Granted. Dismissed." Rape filed a timely appeal.

II. Standard of Review
"In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set forth the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
"'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.'
"878 So.2d at 1148-49."

Hall v. Environmental Litig. Grp., P.C., 157 So.3d 876, 879 (Ala. 2014).

         III. Discussion

         A. Introduction

         This case presents two intertwined issues: (i) the adjudicative jurisdiction, or what usually is referred to as simply the "subject-matter jurisdiction, " of the tribal and state courts over the underlying dispute and (ii) the alleged sovereign immunity of the tribal defendants. Both issues are grounded in the same fundamental principles regarding the nature of sovereignty and in corollary notions as to the reach of a sovereign's adjudicative authority and the extent of its immunity, as discussed in Part B, infra.

         Rape argues that the Tribe was not formally "recognized" at the time of Congress's enactment of the "Indian Reorganization Act of 1934, " 25 U.S.C. § 461 et seq. ("the IRA"), [2] and that, therefore, under the United States Supreme Court's holding in Carcieri v. Salazar, 555 U.S. 379, 381 (2009), the Tribe cannot demonstrate a right to self-governance and sovereign immunity. Similarly, in an amicus brief in this appeal, the State of Alabama argues that the Tribe has not shown that it was both "recognized" and "under federal jurisdiction" in 1934 and that, therefore, it has no "tribal lands" validly removed from state political and adjudicative jurisdiction under the terms of the IRA.[3] (The same arguments are made by the plaintiff in Harrison as to both the question of subject-matter jurisdiction and sovereign immunity and by the plaintiff in Wilkes insofar as the arguments in that case relate to immunity.)

          The tribal defendants focus on the holding in Carcieri as one they contend is limited to the question whether the United States government could properly take land into trust. They contend that the answer to this question has no bearing on the issue of tribal sovereign immunity. That said, the tribal defendants in this case (as in Harrison) argue vigorously that the land on which the claims arose was land that was properly taken into trust under the terms of the IRA and thereby properly removed from the political jurisdiction of the State of Alabama. According to the tribal defendants, this fact alone means that the Tribe's court has exclusive adjudicative, or subject-matter, jurisdiction over the dispute.

         B. Attributes of Sovereignty and Sovereign Authority

         As to the issue of sovereignty and of jurisdiction over Indian tribes and tribal lands, the Supreme Court has stated:

"Generalizations on this subject have become particularly treacherous. The conceptual clarity of Mr. Chief Justice Marshall's view in Worcester v. Georgia, 6 Pet. 515, 556-561 (1832), has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect the respective rights of States, Indians, and the Federal Government. ... The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law."

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973) (emphasis added). Given the import of our decisions in the three appeals we decide today, and the case-by-case approach described by the United States Supreme Court, we think it important to undergird our review and application of Supreme Court precedents with a clear understanding of the fundamental nature and attributes of sovereignty and sovereign immunity.

         Most fundamentally, of course, sovereignty is the power to govern -- the power of a government to regulate the affairs of men. As to a matter over which a government has no regulatory authority, it is not sovereign. Black's Law Dictionary 1631 (10th ed. 2014) defines "state sovereignty" as "[t]he right ... to self-government; the supreme authority exercised by each state." See, e.g., United States v. Wheeler, 435 U.S. 313, 320 (1978)("[I]t is a State's own sovereignty which is the origin of its [governmental] power."); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 316-17 (1936) ("A political society cannot endure without a supreme will somewhere.").

         Second, the power of the sovereign is the power both to make law (sometimes itself referred to as "regulatory authority") and to adjudicate disputes arising under that law, those two powers necessarily being codependent and coextensive. See, e.g., Nevada v. Hicks, 533 U.S. 353, 357-58 (2001) ("A tribal court's adjudicative authority is, at most, only as broad as the tribe's regulatory authority."); Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ("As to nonmembers ... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction ....").

         Third, sovereignty corresponds with, and is a function of, authority over some portion of the earth's surface -- some "territory." It is not freestanding. "[F]ull and absolute territorial jurisdiction ... [is] the attribute of every sovereign." The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812). As the Restatement (Third) of Foreign Relations Law § 201 (1987) explains, "[u]nder international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities." (Emphasis added.)

"On [a] transfer of territory [between two sovereigns], ... the relations of the inhabitants ... with their former sovereign are dissolved, and new relations are created between them, and the government which has acquired their territory."

American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 542-43 (1828).

         Fourth, the very reason for the existence of sovereign immunity is to facilitate the sovereignty of the sovereign. Thus, it is the essential nature of sovereign immunity that it is coextensive with the sovereignty it serves; by nature it operates only within the physical boundaries and the regulatory and adjudicatory boundaries of that sovereignty. "It is 'inherent in the nature of sovereignty not to be amenable' to suit without consent." The Federalist No. 81, p. 511 (Alexander Hamilton) (B. Wright ed. 1961). See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 169 n.18 (1982) (discussing "sovereign immunity" as an "attribute[] of sovereignty"). Explaining that it is "[s]overeignty" itself that "implies immunity from lawsuits, " the Court in Michigan v. Bay Mills Indian Community, __U.S.__, __, 134 S.Ct. 2024, 2030 (2014), described immunity as a "core aspect of sovereignty" and, moreover, as a "'necessary corollary to ... sovereignty and self-governance." (Quoting Three Affiliated Tribes of Fort Berthold Reservation v. World Eng'g, P.C., 476 U.S. 877, 890 (1986) (emphasis added).)

         Fifth, as corollary to the principle that sovereign immunity is coextensive with the sovereignty it serves, so too sovereign immunity naturally exists only in the courts that themselves derive from and serve that same sovereignty, and that thus operate within the same physical and regulatory boundaries that define that sovereignty. That is, historically and by its fundamental nature, sovereign immunity is and has been limited to the courts of the sovereign itself -- courts formed by the government and located within the territory over which the government served by the doctrine is sovereign. See Black's Law Dictionary 868 (10th ed. 2014) (defining "sovereign immunity" as "1. A government's immunity from being sued in its own courts without its consent").

         In Alden v. Maine, 527 U.S. 706 (1999), the United ...

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