Cayuga Nation v. New York State Gaming Commission

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CAYUGA NATION, a federally recognized Indian Nation,

Plaintiff, 5:24-cv-537 (BKS/TWD)

v.

NEW YORK STATE GAMING COMMISSION, BRIAN

O’DWYER, in his official capacity as the Chair and

Commissioner of the New York State Gaming

Commission, JOHN A. CROTTY, SYLVIA B. HAMER,

MARTIN J. MACK, PETER J. MOSCHETTI, JR.,

MARISSA SHORENSTEIN, JERRY SKURNIK, in their

official capacities as Commissioners of the New York State

Gaming Commission, and JACKPOCKET INC.,

Defendants.

Appearances:

For Plaintiff:

David G. Burch, Jr.

Barclay Damon LLP

125 East Jefferson Street

Syracuse, NY 13202

Kyra E. Ganswith

Barclay Damon LLP

80 State Street

Albany, NY 12207

For Defendants New York State Gaming Commission, Brian O’Dwyer, John A. Crotty, Sylvia B.

Hamer, Martin J. Mack, Peter J. Moschetti, Jr., Marissa Shorenstein, and Jerry Skurnik:

Letitia James

Attorney General of the State of New York

Aimee Cowan

Assistant Attorney General

300 South State Street, Suite 300

Syracuse, NY 13202

For Defendant JackPocket, Inc.:

Andrew Kim

Goodwin Procter LLP

1900 N Street N.W.

Washington, D.C. 20036

Chenxi Jiao

Goodwin Procter LLP

620 Eighth Avenue

New York, NY 10018

Christopher J.C. Herbert

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Cayuga Nation (the “Nation”), a federally recognized Indian Nation, brings this

action for declaratory and injunctive relief against the New York State Gaming Commission;

Brian O’Dwyer, in his official capacity as Chair and Commissioner of the NYSGC; John A.

Crotty, Sylvia B. Hamer, Martin J. Mack, Peter J. Moschetti, Jr., Marissa Shorenstein, and Jerry

Skurnik, in their official capacities as Commissioners of the NYSGC; and JackPocket, Inc. (Dkt.

No. 30). The Nation alleges that the Commission and the Commissioners (together, the “State

Defendants”) are violating the Indian Gaming Regulatory Act (IGRA) by operating New York

State lottery vending machines within the boundaries of the Cayuga Nation Reservation and by

allowing JackPocket to operate within the Reservation pursuant to a Lottery Courier Service

License. (Id.). Currently before the Court is the State Defendants’ motion to dismiss under Fed.

R. Civ. P. 12(b)(1) and 12(b)(6). (Dkt. No. 37). The motion is fully briefed. (Dkt. Nos. 37-1, 42,

47). The Court heard oral argument on the motion on March 27, 2025. For the following reasons,

the Court grants the State Defendants’ motion to dismiss in part and denies it in part.

II. BACKGROUND

A. IGRA

IGRA was enacted following the Supreme Court’s 1987 decision in California v.

Cabazon Band of Mission Indians, “which held that States lacked any regulatory authority over

gaming on Indian lands.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 794 (2014); see

also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221–22 (1987). In its

“Declaration of policy” IGRA names the following three purposes for the law’s enactment:

(1) to provide a statutory basis for the operation of gaming by Indian

tribes as a means of promoting tribal economic development,

self-sufficiency, and strong tribal governments;

(2) to provide a statutory basis for the regulation of gaming by an

Indian tribe adequate to shield it from organized crime and other

corrupting influences, to ensure that the Indian tribe is the

primary beneficiary of the gaming operation, and to assure that

gaming is conducted fairly and honestly by both the operator and

players; and

(3) to declare that the establishment of independent Federal

regulatory authority for gaming on Indian lands, the

establishment of Federal standards for gaming on Indian lands,

and the establishment of a National Indian Gaming Commission

are necessary to meet congressional concerns regarding gaming

and to protect such gaming as a means of generating tribal

revenue.

25 U.S.C. § 2702.

“The Act divides gaming on Indian lands into three classes—I, II, and III—and provides

a different regulatory scheme for each class.” Seminole Tribe of Florida v. Florida, 517 U.S. 44,

48 (1996). Class I gaming “means social games solely for prizes of minimal value or traditional

forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal

ceremonies or celebrations.” 25 U.S.C. § 2703(6). IGRA places “[c]lass I gaming on Indian

lands” “within the exclusive jurisdiction of the Indian tribes.” Id. § 2710(a)(1).

Class II gaming refers to bingo, “including (if played in the same location) pull-tabs,

lotto, punch boards, tip jars, instant bingo, and other games similar to bingo,” as well as certain

card games, but does not include “any banking card games, including baccarat, chemin de fer, or

blackjack (21),” or “electronic or electromechanical facsimiles of any game of chance or slot

machines of any kind.” Id. § 2703(7). IGRA states that “[a]n Indian tribe may engage in, or

license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction, if” “such

Indian gaming is located within a State that permits such gaming for any purpose by any person,

organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands

by Federal law)” and “the governing body of the Indian tribe adopts an ordinance or resolution

which is approved by the Chairman [of the National Indian Gaming Commission].” Id. §

2710(b)(1). Class II gaming is subject to additional regulations, including, for example,

restrictions on revenue purposes, audit requirements, and background investigations on certain

personnel affiliated with a gaming enterprise. See id. § 2710(b).

Class III gaming includes “all forms of gaming that are not class I gaming or class II

gaming.” Id. § 2703(8). This category “includes casino games, slot machines, and horse racing.”

Bay Mills Indian Cmty., 572 U.S. at 785 (citing 25 U.S.C. § 2703(8)). Class III gaming “is the

most heavily regulated of the three classes” and:

is lawful only where it is: (1) authorized by an ordinance or

resolution that (a) is adopted by the governing body of the Indian

tribe, (b) satisfies certain statutorily prescribed requirements, and (c)

is approved by the National Indian Gaming Commission; (2) located

in a State that permits such gaming for any purpose by any person,

organization, or entity; and (3) “conducted in conformance with a

Tribal–State compact entered into by the Indian tribe and the State

under paragraph (3) that is in effect.”

Seminole Tribe, 517 U.S. at 48–49 (citing 25 U.S.C. § 2710(d)(1)). A Tribal-State compact

“typically prescribes rules for operating gaming, allocates law enforcement authority between the

tribe and State, and provides remedies for breach of the agreement’s terms.” Bay Mills Indian

Cmty., 572 U.S. at 785 (citing 25 U.S.C. §§ 2710(d)(3)(C)(ii), (v)).

B. Facts1

The Treaty of Canandaigua in 1794 established the Reservation, consisting of 64,015

acres, in what are today known as Seneca County, New York and Cayuga County, New York.

(Dkt. No. 30, ¶¶ 29–30). Congress has not disestablished the Reservation or authorized the sale

of its lands and thus the Reservation remains intact. (Id. ¶¶ 33–34). The Nation has adopted a

Class II gaming ordinance. (Id. ¶ 39; see also Dkt. No. 30-1). The Nation has not adopted a Class

III gaming ordinance, nor has it entered into a Tribal-State Compact with New York State. (Dkt.

No. 30, ¶¶ 39–44).

The Commission “is a state agency that regulates gaming activities in New York State,”

(id. ¶ 8), and “administers all aspects in regards to the State lottery, including the licensing of

lottery sales agents, use of vending machines, safekeeping operations and control, and

distribution of lottery tickets,” (id. ¶ 45 (citing 9 N.Y.C.R.R. § 5000.1)). New York State

operates lottery vending machines and lottery terminals on the Reservation. (See id. ¶¶ 46–47,

51). New York State lottery machines provide players with instant lottery games, more

commonly known as “scratch-off games,” which are played “by removing the rub-off coating

from play spots” “to determine winning or losing status as described in the appropriate game

brochure.” (Id. ¶¶ 47–48 (citing 9 N.Y.C.R.R. §§ 5006.1, 5006.2, 5006.5)). New York State

1 The facts are drawn from the Nation’s amended complaint, (Dkt. No. 30), as well as the attached exhibits. The Court

assumes the truth of, and draws reasonable inferences from, the well-pleaded factual allegations. Faber v. Metro. Life

Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).

lottery terminals provide players with “tickets for various ‘draw games’ such as New York Lotto,

New York PowerBall, New York Mega Millions, and several other similar games” which

“provide chances to win based on matching the winning numbers selected during a live statewide

televised drawing several times per week.” (Id. ¶ 51).

Additionally, on or around March 31, 2023, the Commission issued a Lottery Courier

Service License to JackPocket. (Id. ¶ 54; see also Dkt. No. 30-2). JackPocket allows users of its

mobile app to play the New York Lotto and other draw games, including while on the

Reservation. (Dkt. No. 30, ¶¶ 57–58). The License was renewed on or around April 1, 2024, (id.

¶ 55; see also Dkt. No. 30-3), and on or around May 23, 2024, (Dkt. No. 30, ¶ 56; see also Dkt.

No. 30-4). The most recently renewed License is set to expire May 23, 2029. (Dkt. No. 30, ¶ 56;

see also Dkt. No. 30-4).

III. STANDARD OF REVIEW

“A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6)

must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a

decision on the merits and, therefore, an exercise of jurisdiction.” Mann v. N.Y. State Ct. of

Appeals, No. 21-cv-49, 2021 WL 5040236, at *3, 2021 U.S. Dist. LEXIS 209018, at *8

(N.D.N.Y. Oct. 29, 2021) (citation omitted). “In resolving a motion to dismiss under Rule

12(b)(1), the district court must take all uncontroverted facts in the complaint . . . as true[ ] and

draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s

Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted).

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a

complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” are

insufficient; rather, a plaintiff must provide factual allegations sufficient “to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). The Court must

“accept all factual allegations in the complaint as true and draw all reasonable inferences in favor

of the plaintiff.” E.E.O.C. v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI

Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). Additionally, “the tenet

that a court must accept as true all of the allegations contained in a complaint is inapplicable to

legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

IV. DISCUSSION

The State Defendants seek to dismiss the Nation’s complaint for lack of subject matter

jurisdiction, on the grounds that they are immune from suit under the Eleventh Amendment, and

also for failure to state a claim. (See generally Dkt. No. 37-1); see also Arjent LLC v. U.S. S.E.C.,

7 F. Supp. 3d 378, 383 (S.D.N.Y. 2014) (“[B]ecause sovereign immunity is ‘jurisdictional in

nature,’ questions of sovereign immunity implicate a court's subject matter jurisdiction and are

analyzed under Rule 12(b)(1).” (citing Hamm v. United States, 483 F.3d 135, 137 (2d Cir.

2007))). Accordingly, the Court begins its discussion by addressing the State Defendants’

arguments under the Eleventh Amendment. See Mann, 2021 WL 5040236, at *3, 2021 U.S. Dist.

LEXIS 209018, at *8.

A. Eleventh Amendment Immunity

The State Defendants argue that “[t]he Nation cannot proceed with its action against the

State defendants in federal court because the Eleventh Amendment renders them immune from

suit.” (Dkt. No. 37-1, at 11). The Nation contends that the individual Commissioners are not

immune from suit under the Ex parte Young doctrine and that because of this the Commission

itself may also be sued. (Dkt. No. 42, at 13–21).

The Eleventh Amendment states that “[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. “[E]ach State is a sovereign entity in our federal system” and “[i]t is inherent

in the nature of sovereignty not to be amenable to the suit of an individual without its consent.”

Seminole Tribe, 517 U.S. at 54 (internal quotation marks omitted) (quoting Hans v. Louisiana,

134 U.S. 1, 13 (1890)). Accordingly, “a federal court generally may not hear a suit brought by

any person against a nonconsenting State,” Allen v. Cooper, 589 U.S. 248, 254 (2020), a

principle which extends to suits against states brought by Indian tribes, see Seminole Tribe, 517

U.S. at 55 (citing Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782 (1991)). Additionally,

“[t]he immunity recognized by the Eleventh Amendment extends beyond the states themselves to

‘state agents and state instrumentalities’ that are, effectively, arms of a state.” Woods v. Rondout

Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (quoting Regents of the

Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)).

“There are three exceptions to Eleventh Amendment immunity”: “this protection does not

apply if (1) a state waives its immunity; (2) Congress clearly abrogates state sovereign immunity;

or (3) the suit is against a state official and seeks prospective relief.” Unkechaug Indian Nation v.

N.Y. State Dep’t of Env’t Conservation., 677 F. Supp. 3d 137, 147 (E.D.N.Y. 2023) (citing Va.

Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 254–55 (2011)), aff’d sub nom.

Unkechaug Indian Nation v. Seggos, 126 F.4th 822. This third exception, otherwise known as the

Ex parte Young doctrine, provides for “federal jurisdiction over a suit against a state official

when that suit seeks only prospective injunctive relief in order to ‘end a continuing violation of

federal law.’” Seminole Tribe, 517 U.S. 44 at 73 (quoting Green v. Mansour, 474 U.S. 64, 68

(1985).

The Nation does not contest that the State of New York has not consented to suit, nor

does the Nation claim that Congress has abrogated state sovereign immunity in this instance.

(See generally Dkt. No. 42, at 13–21). The Court therefore does not address these issues, as

raised by Defendants, further. (See Dkt. No. 37-1, at 12–14 (arguing that the Commission “has

not consented to suit in federal court” and that “Congress did not abrogate state sovereign

immunity be enacting the IGRA”)). However, the Nation does challenge Defendants’ contention

that Ex parte Young does not permit an action against the individual commissioners and the

Commission itself. (Dkt. No. 42, at 13–21).

1. The Individual Commissioners

a. Ex Parte Young and IGRA

The parties dispute whether the Supreme Court’s decision in Seminole Tribe of Florida v.

Florida precludes the Nation’s claim against the individual Commissioners under Ex parte

Young.

In Seminole Tribe, the Seminole Tribe of Florida alleged that the State of Florida and its

Governor violated IGRA’s requirement that the state partake in a good faith negotiation under

Section 2710(d)(3)(A) with respect to negotiating a Tribal-State Compact. 517 U.S. at 51–52.

The Seminole Tribe brought the suit pursuant to Section 2710(d)(7)(A) of IGRA, which grants

federal jurisdiction over “any cause of action initiated by an Indian tribe arising from the failure

of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-

State compact . . . or to conduct such negotiations in good faith.” See id. at 52. In response,

Florida invoked its sovereign immunity. Id.

On review, the Supreme Court first considered whether “the Eleventh Amendment

prevent[s] Congress from authorizing suits by Indian tribes against States for prospective

injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause,” id. at

53, holding “that notwithstanding Congress’ clear intent to abrogate the States’ sovereign

immunity, the Indian Commerce Clause does not grant Congress that power, and therefore §

2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued, id. at 47; see

also id. at 55–73.

The Court then considered the question of whether “the doctrine of Ex parte Young

permit[s] suits against a State’s Governor for prospective injunctive relief to enforce the good-

faith bargaining requirement of the Act,” id. at 53, holding that the doctrine “may not be used to

enforce § 2710(d)(3) against a state official,” id. at 47. In its discussion of why Ex parte Young

could not be a vehicle for the Seminole Tribe’s suit, the Court reasoned that “where Congress

has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily

created right, a court should hesitate before casting aside those limitations and permitting an

action against a state officer based upon Ex parte Young.” Id. at 74. The Court then explained

that “Congress intended § 2710(d)(3) to be enforced against the State in an action brought under

§ 2710(d)(7),” that “the intricate procedures set forth in that provision show that Congress

intended therein not only to define, but also to limit significantly, the duty imposed by §

2710(d)(3),” and that “[i]f § 2710(d)(3) could be enforced in a suit under Ex parte Young, §

2710(d)(7) would have been superfluous.” Id. at 74–75.

The State Defendants argue that “the Seminole Tribe could not simply sue Florida

officials to obtain the same relief it could not obtain from Florida itself, i.e. an order compelling

the State to negotiate a gaming compact pursuant to the IGRA.” (Dkt. No. 37-1, at 15 (citing

Seminole Tribe, 517 U.S. at 74, 76)). They continue, “[t]he Court observed that, through the

IGRA, Congress created both the right the Seminole Tribe was asserting—to engage in good-

faith negotiations with a state over a gaming compact—and the mechanisms to enforce that

right.” (Id. (citing Seminole Tribe, 517 U.S. at 74, 76)). And “[g]iven that Congress had

endeavored to detail the process as to how disputes of this nature are to be addressed, the Court

concluded that permitting an alternative action under Ex parte Young would render those statutes

superfluous.” (Id. (citing Seminole Tribe, 517 U.S. at 75)).

In response, the Nation contends that “Seminole Tribe did not limit the availability of Ex

Parte Young for all violations of IGRA, rather, it held that ‘Ex Parte Young[] may not be used to

enforce 25 U.S.C. § 2710(d)(3) against a state official.’” (Dkt. No. 42, at 14 (citing Seminole

Tribe, 517 U.S. at 47)). Thus, the Nation argues that “Seminole Tribe does not bar Ex Parte

Young availability for all IGRA violations,” and that the Nation may rely on Ex parte Young

here because the remedial scheme contained within IGRA does not cover the current dispute. (Id.

at 14–15 (“Section 2710(7)(b) provides that an Indian tribe can commence an action if a compact

was not entered, the State did not respond to the request to enter into a compact, or did not

respond in good faith. . . . Here, the Nation does not allege there were bad faith negotiations with

the State, or that the Nation had a desire to compel negotiations for a compact.”)).

The Court agrees with the Nation that Seminole Tribe does not indicate that all suits

brought under IGRA and pursuant to Ex parte Young are barred, but rather, that Ex parte Young

may not be used to bring an action under IGRA to enforce 25 U.S.C. § 2710(d)(3) or in other

instances “where Congress has prescribed a detailed remedial scheme for the enforcement

against a State of a statutorily created right.” 517 U.S. at 74; see also Alabama v. PCI Gaming

Auth., 801 F.3d 1278, 1289 (11th Cir. 2015) (explaining that Seminole Tribe “neither addressed

nor decided whether state and tribal officials are immune from other IGRA-based claims to

enforce rights for which the statute does not set forth such a detailed, limited remedial scheme”).

Courts have found that in the absence of a detailed remedial scheme, Seminole Tribe does not

operate as a bar to an Ex parte Young action to enforce IGRA. See Friends of Amador Cnty. v.

Salazar, No. 10-cv-348, 2010 WL 4069473, at *4, 2010 U.S. Dist. LEXIS 110448, at *11–12

(E.D. Cal. Oct. 18, 2010); Tohono O’Oodham Nation v. Ducey, 130 F. Supp. 3d 1301, 1312–13

(D. Ariz. 2015); PCI Gaming Auth., 801 F.3d at 1289–90.

Here, the Nation specifically seeks to enforce the regulations regarding Class III gaming

provisions against the State Defendants, a situation that Section 2710(d)(3) does not address.

Moreover, the Nation is correct that “IGRA does not contemplate a regulatory scheme, or

provide any guidance for recourse, when Indian nations do not wish to negotiate a compact, but

rather request the violations stop.” (Dkt. No. 42, at 15 (citing 25 U.S.C. § 2710(d)(7))). The State

Defendants do not explain how such a situation is comparable to the one at issue in Seminole

Tribe, nor do they explain how the statute otherwise provides a remedy in these circumstances.

Accordingly, the Court does not find the Nation’s action to be barred under Seminole Tribe’s

restriction on the use of the Ex parte Young exception.

b. Prospective Relief

The State Defendants also argue that the Nation cannot rely on Ex parte Young to sue the

individual Commission members because the Nation is seeking retrospective relief. (Dkt. No.

37-1, at 16–18; Dkt. No. 47, at 8–9). The Nation contends that the relief sought is prospective

only. (Dkt. No. 42, at 16–20).

“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment

bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)

(quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J.,

concurring in part and concurring in the judgment)); T.W. v. N.Y. State Bd. of Law Exam’rs, 110

F.4th 71, 91 (2d Cir. 2024) (quoting Vega v. Semple, 963 F.3d 259, 281 (2d Cir. 2020)).

“[S]ubstance rather than . . . the form of the relief sought” determines whether the relief is

prospective. Vega, 963 F.3d at 282 (citing Edelman v. Jordan, 415 U.S. 651, 668 (1974)).

“[R]elief that is ‘tantamount to an award of damages for a past violation of federal law, even

though styled as something else,’ is barred. Importantly, however, ‘relief that serves directly to

bring an end to a present violation of federal law is not barred by the Eleventh Amendment even

though accompanied by a substantial ancillary effect on the state treasury.’” Id. (quoting

Papasan v. Allain, 478 U.S. 265, 278 (1986)).

Here, the Nation alleges three ongoing violations of federal law: first, the operation of

lottery vending machines providing access to instant lottery or “scratch-off games” within the

Reservation; second, the operation of lottery terminals providing access to “draw games” within

the Reservation; and third, allowing JackPocket to operate its mobile app providing access to

draw games pursuant to the Lottery Courier License, which is currently in effect and expires on

May 23, 2029, within the Reservation. (See Dkt. No. 30, ¶¶ 47, 49–54, 56–60, 67–71, 74, 81–82,

84–86). The Nation seeks the following in terms of relief from the State Defendants: “a

declaration that [the State Defendants] are currently violating federal law by operating New York

State lottery vending machines within the Nation’s Reservation”; “an injunction directing [the

State Defendants] to cease operating any New York State lottery vending machines within the

Nation’s Reservation”; “a declaration that [the State Defendants] violate IGRA by allowing the

issued the [sic] Lottery Courier Service License to Jack[P]ocket to be in effect currently without

excluding the Nation’s Reservation and continue to violate the law with the License in effect”;

and “a declaration that the portion of the current Lottery Courier Service License issued to

Jack[P]ocket (License Number COURIER-005), which [the Commission] allows to currently

stay valid, allowing Jack[P]ocket to operate within the Nation’s Reservation is invalid.” (Dkt.

No. 30, ¶ 5).

The Nation’s request for injunctive relief, aimed at ending an alleged ongoing violation

of federal law, is a request for prospective relief. See Verizon Md., Inc., 535 U.S. at 645 (stating

that the plaintiff’s “prayer for injunctive relief—that state officials be restrained from enforcing

an order in contravention of controlling federal law—clearly satisfies our ‘straightforward

inquiry’”). And the Nation’s request for declaratory relief, which “[i]nsofar as the exposure of

the State is concerned . . . adds nothing to the prayer for injunction.”. See id. at 646.

The State Defendants assert several reasons why the relief is retrospective. All of them

are unavailing. First, they state that because the Nation’s “original complaint phrased its requests

for declaratory relief in the past tense,” the declaratory relief sought is actually retrospective.

(Dkt. No. 37-1, at 17). As the Nation correctly points out, “the motion to dismiss is to only be

decided on the allegations in the Amended Complaint.” (Dkt. No. 42, at 16 (citation omitted));

see Dluhos v. Floating & Abandoned Vessel, Known as N.Y., 162 F.3d 63, 68 (2d Cir. 1998)

(“[I]t is well established that an amended complaint ordinarily supercedes the original and

renders it of no legal effect.” (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d

Cir. 1994))). But moreover, the fact that the declaratory relief sought speaks to past violations

does not mean that a plaintiff seeking such relief cannot proceed under an Ex parte Young

theory. As the Supreme Court explained in Verizon Maryland, Inc. v. Public Service Commission

of Maryland, “no past liability of the State, or of any of its commissioners, is at issue. [The

declaratory relief sought] does not impose upon the State ‘a monetary loss resulting from a past

breach of a legal duty on the part of the defendant state officials.’” 535 U.S. at 646.

Next, relying on the Second Circuit’s decision in Ward v. Thomas, the State Defendants

argue that “any violations of federal law alleged against the Commission member defendants

have already occurred” because “[t]he ‘operation’ of the lottery instrumentalities alleged in the

amended complaint cannot be divorced from the Commission’s determinations that particular

lottery sales agents satisfy regulatory requirements to sell lottery tickets on their premises––

determinations that the Commission has already made at discrete points in time,” and thus “an

injunction against ‘continued operation’ of the lottery instrumentalities would in substance

reverse those prior determinations.” (Dkt. No. 37-1, at 17). “Similarly,” they argue, “an

injunction with respect to the Commission’s licensing of Jack[P]ocket as a lottery courier service

is nothing less than the annulment of the licensing determination on the ground that the

Commission misapplied the law in the past.” (Id.).

As the Nation points out, (Dkt. No. 42, at 18), Defendants’ reliance on Ward is

inapposite. Ward involved claims by a plaintiff sub-class for declaratory and “notice relief”

regarding a reduction in benefits pursuant to a program that was later terminated. 207 F.3d 114,

116–17, 119 (2d Cir. 2000). The court found that, as in Green v. Mansour, 474 U.S. 64 (1985),

“though the recipients framed their prayer for relief in prospective terms, the effect of what they

sought would be entirely retrospective because the state was no longer violating federal law.” Id.

at 119–20 (citing Green, 474 U.S. at 71–73). The court explained that with respect to the

declaratory relief sought, “a declaration that Connecticut’s . . . policy violated federal law would

have its use if it was ‘offered in state-court proceedings as res judicata on the issue of liability,

leaving to the state courts only a form of accounting proceeding whereby damages or restitution

would be computed,’” thereby essentially acting as a “‘partial “end run” around’ the Eleventh

Amendment’s bar on retrospective awards of monetary relief.” Id. at 120 (citing Green, 474 U.S.

at 73).

These circumstances are not comparable. There is no suggestion that the relief sought

would amount to an end run around the Eleventh Amendment in a similar way. As for the more

specific argument regarding administrative actions, Defendant cites no case law suggesting that

relief to prohibit ongoing activity that had previously been authorized is retrospective because it

would effectively invalidate those earlier authorizations. Accordingly, the Court does not find

that it would be improper to pursue this action pursuant to Ex parte Young.

2. The Commission

Defendants argue that the Eleventh Amendment bars suit against the Commission, a state

agency. (Dkt. No. 37-1, at 12–14). The Nation responds that “[t]he Commission is not entitled to

Eleventh Amendment [i]mmunity because the Commissioners are sued herein” and that because

“the real party [in] interest is the government entity, not the named official,” “the Commission is

a proper background party that must remain in this case.” (Dkt. No. 42, at 20–21 (citation

omitted)).

The Court agrees with Defendants. As Defendants state, (Dkt. No. 37-1, at 13), the

Commission is a state agency that is generally immune from suit, see Matsko v. New York, No.

18-cv-857, 2022 WL 137724, at *12–13, 2022 U.S. Dist. LEXIS 7996, at *34–35 (N.D.N.Y. Jan.

14, 2022) (granting summary judgment in favor of the defendants, including the Commission, on

the basis that they were entitled to sovereign immunity with respect to the plaintiff’s New York

State Human Rights Law claim). Neither of the cases the Nation cites with respect to this

argument support the proposition that a state agency may be made a proper party to the suit

because its constituent members are simultaneously sued pursuant to Ex parte Young. (Dkt. No.

42, at 20–21 (citing Malek v. N.Y. Unified Ct. Sys., Nos. 22-cv-5416, 22-cv-6515, 22-cv-6538,

22-cv-6775, 22-cv-7815, 2023 WL 2429528, 2023 U.S. Dist. LEXIS 40167 (E.D.N.Y. Mar. 9,

2023) and Vann v. U.S. Dep’t of Interior, 701 F.3d 927, 929 (D.C. Cir. 2012) (Kavanaugh, J.)).

The Nation’s concern, which appears to be that any relief sought would not bind later officials, is

resolved by suing the individual Commissioners in their official capacity, as explained by one of

the cases the Nation cites. See Vann, 701 F.3d at 929 (“[A]n injunction entered against an officer

in his official capacity is binding on the officer's successors.” (citations omitted)). Accordingly,

the Commission must be dismissed from this action.

B. Private Right of Action and Equity Jurisdiction

The State Defendants argue that “[e]ven if this Court retained jurisdiction over any

portion of the action,” “it should still dismiss all claims against them because the IGRA does not

confer upon the Nation a private right of action to enforce the rights they assert.” (Dkt. No. 37-1,

at 18). The Nation does not dispute that IGRA does not confer a private of action2 to pursue the

relief it seeks, but argues that “this case involves traditional equitable relief against government

officials under Ex Parte Young,” and thus that “the Nation’s claims fall squarely within the

federal courts’ long-established authority to enjoin ongoing violation of federal law.” (Dkt. No.

42, at 24–25).

In Armstrong v. Exceptional Child Center, Inc., the Supreme Court considered the

question of “whether Medicaid providers [could sue Idaho state officials] to enforce § (30)(A) of

the Medicaid Act.” 575 U.S. 320, 322–24 (2015). The Court made clear that the Supremacy

Clause did not confer a private right of action to enjoin the state’s implementation of Section

2 IGRA directly provides several rights of action, including under Section 2710(d)(7)(A). None of these rights of

action includes the type of relief sought here. See 25 U.S.C. § 2710(d)(7)(A).

(30)(A), id. at 324–25, but that “[t]he ability to sue to enjoin unconstitutional actions by state and

federal officers is the creation of courts of equity, and reflects a long history of judicial review of

illegal executive action, tracing back to England.” Id. at 327 (citing Jaffe & Henderson, Judicial

Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)). The Court than

analyzed whether the suit could proceed in equity. Id. (citing Seminole Tribe, 517 U.S. at 74).

The State Defendants do not address whether the Nation can proceed in equity

jurisdiction, even absent a private right of action in IGRA itself. Instead, in their reply, the State

Defendants respond that the Nation cannot “rely on federal preemption as the source of an

enforceable substantive right,” (Dkt. No. 47, at 11), an argument that the Court does not

understand the Nation to assert. The State Defendants also argue that “the Supremacy Clause

remains available to any Indian tribe aggrieved by the enforcement of a state or local law against

it that conflicts with the IGRA,” but that “the Nation here does not identify a law that is

preventing the tribe from engaging in activity the IGRA permits the tribe to conduct.” (Id.). This

fundamentally misunderstands the Nation’s claim, which specifically seeks to prevent the State

from engaging in or permitting the occurrence of particular games in contravention of IGRA’s

restrictions on Class III gaming. (See Dkt. No. 30, ¶¶ 35–86).3

At least one other district court has declined to dismiss a plaintiff tribe’s IGRA

preemption claim on the basis that the court lacked equity jurisdiction. See Tohono O’Oodham

Nation, 130 F. Supp. 3d at 1316 (explaining that the court was “not convinced that Congress

3 In their opening brief, the State Defendants argue that “the Nation asserts broadly that the State Defendants violated

‘the IGRA,’ without reference to any specific subdivisions,” (Dkt. No. 37-1, at 18), and later in reply make this

argument again, stating “the Nation leaves the court to guess which provisions in the IGRA it would like to enforce

against the State Defendants.” (Dkt. No. 47, at 9). While Plaintiff does frequently refer to violations of “the IGRA,”

(see Dkt. No. 30, ¶¶ 50, 53, 71, 86), it is also clear in the amended complaint that the specific provisions Plaintiff

alleges the State Defendants are violating are those regulating Class III gaming, (see, e.g., Dkt. No. 30, ¶¶ 35–44, 49–

50, 52–53, 59–60). The State Defendants themselves seem to acknowledge this. (Dkt. No. 47, at 9 (stating that “the

heart of the Nation’s lawsuit is a perceived right to regulate all Class III gaming within the borders of its ancestral

reservation”).

intended to foreclose an equitable cause of action asserting preemption,” that “[t]he Supreme

Court recognized the existence of such a cause of action in Armstrong, and [the relevant

defendant] ha[d] cited no IGRA provision that shows a congressional intent to foreclose it.”).

Here, the parties have not meaningfully addressed whether the Court has equitable jurisdiction.

In light of this case law, and absent further briefing addressing the relevant considerations, the

Court cannot resolve the question of whether Congress “‘inten[ded] to foreclose’ equitable

relief.” See Armstrong, 575 U.S. at 328 (finding that “Congress’s ‘intent to foreclose’ equitable

relief” was evidenced by the provision of a “sole remedy” “for a State’s failure to comply with

Medicaid’s requirements” and the “judicially unadministrable nature of § 30(A)’s text”); Friends

of the East Hampton Airport, Inc. v. Town of East Hampton, 841 F.3d 133, 145–47 (2d Cir.

2016) (considering the factors discussed in Armstrong and finding that the Airport Noise and

Capacity Act of 1990 did not preclude the Court from issuing equitable relief). The Court

therefore denies the State Defendants’ motion on this ground without prejudice to renewal.

C. State Gaming on Indian Lands

The State Defendants’ final argument for dismissing the Nation’s complaint is that “the

IGRA simply does not apply to the state-operated lotteries the Nation identifies as a violation of

its rights,” stating that “[t]he structure and language of the IGRA demonstrate that the statute is

intended to regulate whether and how Indian gaming on Indian lands may be effected.” (Dkt. No.

37-1, at 20). The Nation responds that in taking this position, the State Defendants “rely

exclusively” on non-precedential case law and that Second Circuit case law “consistently and

unequivocally holds that IGRA preempts all state and local legislation and regulation related to

gaming conducted on Indian lands, not just Indian gaming activities on Indian lands.” (Dkt. No.

42, at 25–30).

Whether IGRA’s regulatory regime was meant to apply to state gaming on Indian lands is

a question of statutory interpretation. “Every exercise in statutory construction must begin with

the words of the text.” New York Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207,

216 (2d Cir. 2021) (quoting Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003)). “The

words of the text to be interpreted are not considered alone, however. Instead, we ‘look[] to the

statutory scheme as a whole and plac[e] the particular provision within the context of that

statute.’” Id. (quoting Saks, 316 F.3d at 345). “If the text of the statute ‘is not entirely clear, we

then turn to the broader statutory context and its history.’” Id. (quoting Khalid v. Sessions, 904

F.3d 129, 132 (2d Cir. 2018)); accord Cayuga Nation v. Tanner, 6 F.4th 361, 378 (2d Cir. 2021)

(“In interpreting a statute, we look first to the language of the statute itself. When the language of

the statute is unambiguous, judicial inquiry is complete.” (quoting Marvel Characters, Inc. v.

Simon, 310 F.3d 280, 289–90 (2d Cir. 2002))).

The text of section 2710(d)(1) reads as follows:

(1) Class III gaming activities shall be lawful on Indian lands only

if such activities are—

(A) authorized by an ordinance or resolution that—

(i) is adopted by the governing body of the Indian tribe having

jurisdiction over such lands,

(ii) meets the requirements of subsection (b), and

(iii) is approved by the Chairman,

(B) located in a State that permits such gaming for any purpose

by any person, organization, or entity and

(C) conducted in conformance with a Tribal-State compact

entered into by the Indian tribe and the State under paragraph

(3) that is in effect.

25 U.S.C. § 2710(d)(1).

This language is unambiguous. The text of the statute refers to “[c]lass III gaming

activities” “on Indian lands,” and does not differentiate between who is conducting the gaming.

See id. The definition of class III gaming, which, as stated above, is defined as “all forms of

gaming that are not class I gaming or class II gaming,” also does not restrict its meaning to only

encompass Indian gaming. See id. § 2703(8).

Defendants argue that “[t]he IGRA’s text uniformly refers to Indian gaming, that is,

gaming operated by a tribe itself or privately operated gaming regulated by a tribe.” (Dkt. No.

37-1, at 21). This is, however, not the case. While at some points in IGRA the statute refers to

gaming “by Indian tribes” or uses similar wording, (see, e.g., 25 U.S.C. § 2702(1)), at other

times the statute refers to gaming “on Indian lands,” including, as most relevant here, Section

2710(d)(1). “‘[W]here Congress includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed that Congress acts intentionally.’

We presume that intention here and thus discern no basis to read extratextual limitations into the

statute.” Cayuga Nation, 6 F.4th at 378–79 (quoting Russello v. United States, 464 U.S. 16, 23

(1983)).

The Defendants rely on the Declaration of Policy section in support of their argument.

(Dkt. No. 37-1, at 21). While the first paragraph does state that the purpose of IGRA is “to

provide a statutory basis for the operation of gaming by Indian tribes,” the third paragraph also

makes clear that IGRA’s purpose is for “the establishment of Federal standards for gaming on

Indian lands.” 25 U.S.C. §§ 2702(1), (3) (emphasis added). This purpose suggests the statute is

not only about gaming that a tribe itself conducts. Moreover, this section also twice emphasizes

that the purpose of IGRA is to benefit tribes—the operation of such gaming is to be “a means of

promoting tribal economic development, self-sufficiency, and strong tribal governments” and the

Indian tribe is to be the “primary beneficiary of the gaming operation.” Id. § 2702(1)–(2). The

State Defendants’ understanding—that the state could conduct its own gaming operations

without complying with IGRA’s requirements—would fundamentally undermine those statutory

purposes.

The State Defendants also argue that “with respect to the IGRA itself, the text does not

contain any reference to State-operated gambling of any kind.” (Dkt. No. 37-1, at 21–22). While

it is true that IGRA does not refer to State-operated gaming, Congress could have chosen to

exclude State-operated gaming from the broad language of Section 2710(d)(1) which generally

refers to “class III gaming activities.” The Court will not read into the statute an exclusion for

State-operated gaming activities. See Cayuga Nation, 6 F.4th at 379 (“[W]e have ‘no roving

license, in even ordinary cases of statutory interpretation, to disregard clear language simply on

the view that . . . Congress must have intended something [narrower].’” (second alteration in

original) (quoting Bay Mills Indian Cmty., 572 U.S. at 794)).

Accordingly, given the plain language of IGRA and the fact that Congress could have

explicitly said that the State could conduct Class III gaming on Indian land and did not, the Court

finds that IGRA’s restrictions on class III gaming applies to any class III gaming activity

conducted on Indian lands, including gaming activity conducted by the State.

The State Defendants also cite to IGRA’s legislative history, including that IGRA was

enacted in response to concerns surrounding Indian gaming, that “[t]he IGRA’s legislative

history is devoid of any specific reference to gaming activity conducted by States,” and that

“[w]hen the legislative history does refer to States, it is to clarify that ‘States are not required to

forgo any State governmental rights to engage in . . . Class III gaming except whatever they may

voluntarily cede to a tribe under a compact.’” (Dkt. No. 37-1, at 22–23). First, a court “look[s] to

the legislative history of a statute only where the text itself is not ‘absolutely clear.’” United

States v. DiCristina, 726 F.3d 92, 102 (2d Cir. 2013) (quoting Disabled in Action of Metro. N.Y.

v. Hammons, 202 F.3d 110, 124 (2d Cir. 2000))). As the Court finds the text unambiguous, there

is no need to examine the legislative history here.

As persuasive authority, the State Defendants rely on Confederated Tribes & Bands of

Yakama Indian Nation v. Lowry (“Yakama Indian Nation”), (Dkt. No. 37-1, at 20), in which the

district court considered the plaintiff tribe’s claim that “the State of Washington operate[d] its

lottery on the Yakama Indian Nation Reservation in violation of [IGRA], specifically 25 U.S.C.

§ 2710(b)(4) and (d)(1)(A)(ii),” 968 F. Supp. 531, 532–33 (E.D. Wash. 1996), vacated sub nom.

Confederated Tribes & Bands of Yakama Indian Nation v. Locke, 176 F.3d 467 (9th Cir. 1999).

In this case, the district court found that “unless Congress specifically says the States’ gaming

activity is included, States are not subject to IGRA’s regulatory provisions,” and dismissed the

cause of action for failing to state a claim upon which relief could be granted. Id. at 537–38. On

appeal, the Ninth Circuit panel stated that they “agree[d] with the district court that this claim

must be dismissed, but only on the ground of the Eleventh Amendment,” and explicitly declined

to address the merits of the underlying issue. 176 F.3d at 469–70 (“Because this action is so

clearly barred from federal court by the Eleventh Amendment, we deem it an inappropriate

vehicle for the determination of the more complex issues raised by the Tribe and responded to by

the State. We therefore do not address, and express no opinion on, the questions whether the

operation of the state lottery on the Yakama Reservation violates IGRA, and whether, if so,

IGRA gives rise to an implied right of action in the Tribe to remedy the condition.”). For the

reasons set forth above, the Court finds the district court’s conclusion in this case (and the State

Defendants’ arguments based on its reasoning) to be unpersuasive. The Court also notes that in

another IGRA case, relied on by the Nation, (see Dkt. No. 42, at 26), a district court concluded,

after a brief analysis relying primarily on the plain language of Section 2710(d), that a state

could not operate its own lottery on tribal lands. Coeur d’Alene Tribe v. State, 842 F. Supp.

1268, 1282 (D. Idaho 1994), aff’d 51 F.3d 876 (9th Cir. 1995).4 The district court ruled that “in

the absence of a tribal gaming ordinance and a compact, neither the Tribe nor any non-tribal

entity, including the State of Idaho, may conduct Class III gaming on the reservation.” Id.

The State Defendants make one other argument, namely that “IGRA created 18 U.S.C. §

1166, which explicitly makes clear that, in the absence of a tribal-state compact, state laws

pertaining to the licensing and regulation of Class III gambling ‘apply in Indian country in the

same manner and to the same extent as such laws apply elsewhere in the State.’” (Dkt. No. 37-1,

at 23–24 (citing 18 U.S.C. § 1166(a) & (c))). According to the State Defendants, “[t]o that end,

Article 34 of the New York Tax Law authorizes and regulates the state-operated New York

Lottery—a form of Class III gaming—and there is no compact between the State and the Nation

that otherwise addresses the New York Lottery. Therefore, Section 1166(a) applies, making all

New York state laws pertaining to the licensing and regulation of the state lottery applicable in

Indian country.” (Id. at 24 (citing Yakama Indian Nation, 968 F. Supp. at 541)).

The Court does not agree. Section 1166(a), relevant here, is a criminal law that ensures

that “gambling activity that violates state licensing, regulatory, or prohibitory law is punishable

even though it may not violate federal law.” United States v. Cook, 922 F.2d 1026, 1034 (2d Cir.

1991); see also Stand Up for Cal.! v. U.S. Dep’t of Interior, 959 F.3d 1154, 1160 (9th Cir. 2020)

(“Section 1166 subjects to criminal liability anyone who conducts gambling activities on Indian

lands who would have been subject to criminal liability by the state if the activities had occurred

on state rather than Indian lands.”). As the Nation states, Section 1166 “does not subject Indian

4 While the Ninth Circuit affirmed the district court’s holding, it did not consider the issue of whether IGRA applied

to state-operated gaming. See Cour D’Alene Tribe v. State of Idaho, 51 F.3d 876 (9th Cir. 1995).

lands to the broad application of state civil regulatory laws, nor does it authorize the application

of state laws governing state-operated gaming, such as lotteries, on Indian reservations.” (Dkt.

No. 42, at 29). Other than Yakama Indian Nation, State Defendants cite to no other case law

indicating Section 1166 operates in the way suggested, and the Court sees no reason to adopt its

reasoning here.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that the State Defendants’ motion to dismiss, (Dkt. No. 37), is GRANTED

in part and DENIED in part; and it is further

ORDERED that the Nation’s claims against the Commission are DISMISSED for lack

of subject matter jurisdiction; and it is further

ORDERED that the State Defendants’ motion to dismiss, (Dkt. No. 37), is otherwise

DENIED; and it is further

ORDERED that if the State Defendants wish to renew their motion to dismiss on the

basis that the Nation lacks equity jurisdiction, the renewed motion to dismiss is due by April 18,

2025.

IT IS SO ORDERED.

Dated: March 31, 2025 _

Syracuse, New York

Prom da Cane

Brenda K. Sannes

Chief U.S. District Judge

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