Comanche Nation v. Ware

Appellate Case: 24-6221 Document: 46-1 Date Filed: 04/21/2026 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 21, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

COMANCHE NATION,

Plaintiff - Appellee,

v. No. 24-6221

LORI GOODAY WARE, individually and

in her official capacity as FSAT

Chairwoman; PAMELA EAGLESHIELD,

individually and in her official capacity as

FSAT Vice-Chairman; JAMES

DEMPSEY, individually and in his official

capacity as FSAT Secretary-Treasurer;

JEANETTE MANN, individually and in

her official capacity as FSAT Committee

Member; JENNIFER HEMINOKEKY,

individually and in her official capacity as

FSAT Committee Member; DOLLY

LORETTA BUCKNER, individually and

in her official capacity as FSAT Committee

Member; PHILIP KOSZAREK,

individually and in his official capacity as

FSAGC Chairman; NAOMI HARFORD,

individually and in her official capacity as

FSAGC Vice-Chairman; MICHAEL

CRUMP, individually and in his official

capacity as FSAGC Commissioner;

LAUREN PINOLA, individually and in

her official capacity as FSAGC

Commissioner; DEBBIE BAKER,

individually and in her official capacity as

FSAGC Commissioner,

Defendants - Appellants,

and

Appellate Case: 24-6221 Document: 46-1 Date Filed: 04/21/2026 Page: 2

UNITED STATES DEPARTMENT OF

THE INTERIOR; BRYAN NEWLAND, in

his official capacity as Assistant Secretary

Indian Affairs; DARRYL LACOUNTE, in

his official capacity as Director of the

Bureau of Indian Affairs; SEQUOYAH

SIMERMEYER, in his official capacity as

Chairman of the National Indian Gaming

Commission,

Defendants.

_________________________________

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. 5:22-CV-00425-G)

_________________________________

R. Daniel Carter, Foster Garvey, P.C., Tulsa, Oklahoma (Kelly A. Mennemeier and

Devra R. Cohen, Foster Garvey, P.C., Seattle, Washington, with him on the briefs) for

Defendants-Appellants.

Wilson Pipestem, Pipestem Law, P.C., Tulsa, Oklahoma (Harvey D. Ellis, Crowe &

Dunlevy, PC, Oklahoma City, Oklahoma, and D. Michael McBride III, Randall J. Yates,

and Logan C. Hibbs, Crowe & Dunlevy, P.C., Tulsa, Oklahoma, on the brief) for

Plaintiff-Appellee.

_________________________________

Before HARTZ, TYMKOVICH, and BACHARACH, Circuit Judges.

_________________________________

TYMKOVICH, Circuit Judge.

_________________________________

The Fort Sill Apache Tribe opened the Warm Springs Casino near Lawton,

Oklahoma in 2022. Several miles away, the Comanche Nation operates its own

casinos—the Spur Casino and the Comanche Casino. The resulting competition

made the Nation’s casinos less profitable. Contending the Warm Springs Casino was

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opened in violation of federal law, the Comanche Nation sued officials of the Fort

Sill Apache Tribe to enjoin operation of the casino. The Nation also seeks monetary

damages against the defendants in their individual capacities.

The Officials moved to dismiss the claims, raising tribal sovereign immunity.

The district court denied that motion to dismiss. The Officials appealed that ruling as

an immediately appealable order under the collateral-order doctrine.

Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and

REVERSE in part. We conclude that the Indian Gaming Regulatory Act (IGRA)

abrogates the Tribe’s sovereign immunity defense, so the Nation can proceed with its

official-capacity claims under IGRA. But as to the official-capacity claims under the

Racketeer Influenced and Corrupt Organizations Act (RICO), we conclude that the

Officials are entitled to tribal immunity. As to the individual-capacity claims under

RICO, because we conclude that the Officials are the real parties in interest on the

damages claim, they are not entitled to raise tribal immunity.

I. Background

In 2022, the Fort Sill Apache Tribe opened the Warm Springs Casino, which is

located a few dozen miles from one of the Nation’s casinos. App. Vol. 2 at 18–19.

The Warm Springs Casino sits on a plot of land that the parties call the Tsalote

Allotment, which the Fort Sill Apache Tribe acquired in 2001. The Tsalote

Allotment is in the area formerly reserved to the Kiowa Tribe, Comanche Nation, and

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Apache Tribe. 1 But after Congress passed the General Allotment Act of 1887

(Dawes Act), ch. 119, 24 Stat. 388, the United States obtained much of the

reservation’s land and began allotting that land to individual claimants. 2 The United

States allotted one of those parcels to George Tsalote, a member of the Kiowa Tribe.

After the Fort Sill Apache Tribe acquired the Tsalote Allotment, the Bureau of

Indian Affairs deeded the land in trust for the Tribe, and the Tribe entered a gaming

compact with Oklahoma in 2005, but waited until 2022 to open Warm Springs.

The Nation sued for damages and an injunction halting operation of the Warm

Springs Casino. 3 The Nation named two groups of defendants: members of the

Tribe’s governing board and members of the Tribe’s gaming commission. 4 The

Nation sought injunctive and declaratory relief under IGRA and RICO against the

1

This refers to the Apache Tribe of Oklahoma, a tribe distinct from (though

related to) the Fort Sill Apache Tribe. See App. Vol. 2 at 12–13.

2

The United States obtained this land through the Jerome Agreement, ch. 31

Stat. 676 (1900), signed in 1892 and ratified in 1900. This disestablished the KCA

reservation. Tooisgah v. United States, 186 F.2d 93, 97–98 (10th Cir. 1950).

3

The Kiowa Tribe also joined the suit but has voluntarily dismissed its suit.

App. Vol. 3 at 146.

4

The Nation also brought claims against various federal defendants—the

Assistant Secretary for Indian Affairs, the Director of the Bureau of Indian Affairs,

and the Chairman of the National Indian Gaming Commission. The district court

dismissed these defendants. See App. Vol. 3 at 233–34.

4

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Officials in their official capacities, 5 and damages under RICO in their individual

capacities.

The Officials moved to dismiss the IGRA and RICO claims. As for the IGRA

claim, the Officials argued that the Nation failed to state a claim for relief under

Federal Rule of Civil Procedure 12(b)(6) and failed to join a required party under

Rule 12(b)(7). Relevant here, the Officials argued that the Tribe is a party required

to be joined in the suit but could not be joined because the Tribe’s sovereign

immunity protects it—and its officials—from suit. The court rejected that argument,

finding that the Tribe was not a required party since the Officials had been sued in

their official capacities. App. Vol. III at 249–50. The Officials made a similar

argument on the RICO claim. Invoking Rule 12(b)(6), they contended that tribal

immunity immunizes the Officials from suit, so that the official-capacity RICO claim

must fail. The court explicitly rejected the tribal-immunity argument on the RICO

claim. App. Vol. 3 at 252.

The Officials interlocutorily appealed under the collateral-order doctrine. See

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546–47 (1949).

II. Discussion

The Officials contend they are protected by tribal sovereign immunity on the

official-capacity claims under IGRA and RICO. They also argue that they are

entitled to tribal immunity on the individual-capacity RICO claims because the Tribe

5

The district court dismissed the Nation’s other claim alleging a violation of

the First Treaty of Medicine Lodge. See App. Vol. 3 at 256–57.

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is the real party in interest. The Nation counters that (1) IGRA abrogates tribal

immunity, (2) the RICO claim seeks injunctive relief against enforcement officials,

which displaces tribal immunity under Ex Parte Young, 209 U.S. 123 (1908), and (3)

the individual defendants are the real parties in interest, so they cannot raise the

Tribe’s immunity as a defense.

As we explain, we agree with the Nation that IGRA abrogates tribal immunity

on the IGRA claim and that the individuals are the real parties in interest. But we

agree with the Officials that Ex Parte Young does not displace tribal immunity on the

RICO claim.

A. Collateral-Order Jurisdiction

Before reaching the parties’ arguments, we have an obligation to ensure our

jurisdiction over the case before us. Shields Law Grp., LLC v. Stueve Siegel Hanson

LLP, 95 F.4th 1251, 1279 (10th Cir. 2024). Our jurisdiction over final decisions

from the district courts flows through 28 U.S.C. § 1291. See § 1291 (conferring

jurisdiction over “appeals from all final decisions of the district court”). As a general

matter, a decision is final—and thus appealable—only when it “ends the litigation on

the merits and leaves nothing for the court to do but execute the judgment.” Ray v.

Haluch Gravel Co. v. Cent. Pension Fund, 571 U.S. 177, 183 (2014) (quoting Catlin

v. United States, 324 U.S. 229, 233 (1945)).

But we may exercise interlocutory review over a special category of orders—

eligible collateral orders—despite the absence of a litigation-ending decision. Will v.

Hallock, 546 U.S. 345, 349 (2006) (characterizing the doctrine “not as an exception

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to the final decision rule laid down by Congress in § 1291, but as a practical

construction of it”). Under the collateral-order doctrine, we may review an order that

“(1) conclusively determine[s] the disputed question, (2) resolve[s] an important

issue completely separate from the merits, and (3) [is] effectively unreviewable on

appeal from a final judgment.” KCOM, Inc. v. Emp’rs Mut. Cas. Co., 829 F.3d 1192,

1199 (10th Cir. 2016). And though the class of orders meeting these requirements is

small, United States ex rel. Fiorisce, LLC v. Colo. Tech. Univ., Inc., 130 F.4th 811,

816 (10th Cir. 2025) (quoting Cohen, 337 U.S. at 546), an order denying tribal

sovereign immunity qualifies as a collateral order. See Breakthrough Mgmt. Grp.,

Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1177 n.1 (10th Cir. 2010)

(citing Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep’t of Labor,

187 F.3d 1179–80 (10th Cir. 1999)).

Thus, an order that explicitly denies tribal immunity qualifies as an

immediately appealable collateral order. Cf. Montoya v. Vigil, 898 F.3d 1056, 1063

(10th Cir. 2018) (explaining that “if the district court explicitly decided” the

immunity issue, then “we will usually have jurisdiction over the interlocutory

appeal”). But an order that implicitly denies tribal immunity qualifies, too. This

occurs when the defendant puts the immunity issue “clearly before” the court, and

“the district court’s silence” on the issue “operate[s] as an implicit denial.” Id.; see

also Lowe v. Town of Fairland, 143 F.3d 1378, 1380 (10th Cir. 1998) (agreeing with

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circuits that “conclude[] that orders failing or refusing to consider” immunity are

“immediately appealable”). 6

The order here explicitly denied tribal immunity on the RICO claim and

implicitly denied it on the IGRA claim. The court explicitly denied tribal immunity

on the RICO claim when, in response to the Officials’ tribal-immunity argument, it

declined to “dismiss the claim on this basis.” See App. Vol. 3 at 252 The court also

implicitly denied immunity on the IGRA claim. The Officials brought the issue

before the court by raising the immunity in their motion to dismiss. See App. Vol. 2

at 261 (“Tribal officials are immunized from suits brought against them because of

their official capacities.” (emphasis added)); id. (titling sections “THE FSAT IS

IMMUNE FROM SUIT” and “The FSAT has not Waived Sovereign Immunity and

the Ex parte Young Exception Does Not Apply”); id. at 262 (characterizing IGRA

claim as an attempt to “circumvent the sovereign immunity of the FSAT”). And with

the tribal-immunity issue before the court, the court’s silence on the issue operated as

an implicit denial of the Officials’ sovereign immunity against the IGRA claim. 7

6

To be sure, we have applied this implicit-denial rule most commonly in the

qualified-immunity context. But the rule’s logic does not depend on the type of

collateral order; it instead addresses what constitutes a denial of an issue that would

give rise to a collateral order.

7

We acknowledge that the Officials raised the sovereign-immunity issue in the

context of a Rule 12(b)(7) argument. So we cannot fault the district court for

confining itself to the required-joinder analysis. But we think the Officials’

discussion of the Tribe’s immunity and their assertion that tribal officials are immune

from suit sufficiently put the issue before the court, so that its silence on the issue

operated as an implicit denial.

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Because the court’s order denied tribal immunity on the IGRA and RICO

claims, we have jurisdiction under the collateral-order doctrine.

B. Tribal Sovereign Immunity

Indian tribes exercise “inherent sovereign authority” as “domestic dependent

nations.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014). And though

Congress has broad legislative authority “in respect to Indian tribes,” tribes remain

“separate sovereigns pre-existing the Constitution.” Id. Thus, tribes retain certain

aspects of their sovereignty, one of which is sovereign immunity—the “common-law

immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 56 (1978).

Tribal sovereign immunity is not limited to suits nominally against an Indian

tribe itself. The immunity also extends to suits against tribal officials—like the

Officials here—for claims against the officials in their official capacities. Native Am.

Dist. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir. 2008) (“[A]

tribe’s immunity generally immunizes tribal officials from claims made against them

in their official capacities.” (citing Fletcher v. United States, 116 F.3d 1315, 1324

(10th Cir. 1997)). That is because “relief sought nominally against an officer is in

fact against the sovereign if the decree would operate against the latter.” Id. (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)).

But tribal immunity does not attach to all suits. A tribe may, for example,

waive its immunity from suit. See Miner Elec., Inc. v. Muscogee (Creek) Nation, 505

F.3d 1007, 1011 (10th Cir. 2007). Or Congress may abrogate the tribe’s immunity by

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statute. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599

U.S. 382, 387 (2023). Alternatively, a plaintiff may rely on Ex Parte Young to

circumvent tribal immunity. Norton v. Ute Indian Tribe of the Uintah & Ouray

Rsrv., 862 F.3d 1236, 1251 (10th Cir. 2017). As we have explained, Ex Parte Young,

which allows a plaintiff to avoid a state’s sovereign immunity for “suits against state

officials seeking to enjoin alleged ongoing violations of federal law,” applies equally

to a tribe’s sovereign immunity. Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,

1154–55 (10th Cir. 2011).

To abrogate tribal immunity, Congress must make its intent to abrogate

“unmistakably clear in the language of the statute.” Lac du Flambeau Band of Lake

Superior Chippewa Indians, 599 U.S. at 387. And under Ex Parte Young, a plaintiff

need only “seek[] to enjoin alleged ongoing violations of federal law” by suing

government officials directly. Crowe & Dunlevy, 640 F.3d at 1154.

Here, the Officials have invoked tribal immunity against Comanche Nation’s

official-capacity claims under IGRA and RICO. The Nation aims to defeat that

immunity through two of the exceptions mentioned above—abrogation and Ex Parte

Young. The Nation argues that (1) IGRA has abrogated tribal immunity on the IGRA

claim, and (2) Ex Parte Young displaces tribal immunity on the RICO claim. We

agree with the first argument but reject the second.

1. Official-Capacity Claim under IGRA

Congress enacted IGRA in 1988 to allocate authority over Indian gaming

between states, tribes, and the federal government. See Bay Mills, 572 U.S. at 785

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(explaining that IGRA “creates a framework for regulating gaming activity on Indian

lands”). IGRA focuses solely on gaming operations on “Indian lands.” See 25

U.S.C. § 2710 (regulating class I, class II, and class III gaming “on Indian lands”);

1 Cohen’s Handbook of Federal Indian Law § 16.02 (2024) (“[IGRA] governs most,

but not all, gaming by Indian tribes on Indian lands in the United States.”). “Indian

lands” are either “all lands within the limits of any Indian reservation” or “any lands

title to which is . . . held in trust by the United States for the benefit of any Indian

tribe or individual.” 25 U.S.C. § 2703(4). 8

IGRA provides different regulatory requirements on gaming depending on the

“class” the gaming falls into. Class I covers traditional and social games carrying

minimal financial stakes; class II covers games of chance (like bingo); and class III is

a residual category covering all remaining gaming. Typical casino games and slot

machines fall under class III gaming. 9 Bay Mills, 572 U.S. at 792.

IGRA regulates class III most heavily and imposes an extensive framework for

allocating authority between the states and tribes. The primary feature of this

framework is the tribal-state compact, without which a tribe may not operate class III

gaming. 25 U.S.C. § 2710(d) (making class III gaming operations lawful only if they

are “conducted in conformance with a Tribal-State Compact entered into by the

8

“Indian lands” also covers lands not held in trust but “subject to restriction by

the United States against alienation and over which an Indian tribe exercises

governmental power.” 25 U.S.C. § 2703(4)(B).

9

The White Springs Casino also offers class II and class III gaming.

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Indian tribe and the State”). This compact requirement gives a shared role to both

Indian tribes and state governments in regulating gaming on Indian lands.

See 1 Cohen’s Handbook of Federal Indian Law § 16.05 (2024). These compacts

usually contain provisions addressing enforcement of the compact’s provisions,

waivers of tribal immunity against state-initiated actions, and revenue-sharing

provisions. Id. Another common clause, relevant to this case, is one that specifies

where the gaming may take place. Id.

IGRA also contains enforcement mechanisms. IGRA confers jurisdiction on

the federal district courts over “any cause of action initiated by a State or Indian tribe

to enjoin a class III gaming activity located on Indian lands and conducted in

violation of any Tribal-State compact.” 25 U.S.C. § 2710(d)(7)(A)(ii). This

provision “partially abrogates tribal sovereign immunity,” but only for cases that fall

within § 2710(d)(7)(A)(ii)’s terms. Bay Mills, 572 U.S. at 791. In Bay Mills, for

example, Michigan sued an Indian tribe because the tribe opened a casino off Indian

lands in violation of both IGRA and the tribal-state compact. Id. at 786–87. The

Supreme Court observed, however, that IGRA’s abrogation clause covered only

gaming operations “located on Indian lands,” and because Michigan’s suit challenged

“gaming activity off Indian lands,” the suit did not fall within IGRA’s abrogation

clause. Id. at 791.

Section 2710(d)(7)(A)(ii) thus breaks down into four elements: (1) the suit

must be “initiated by a State or Indian tribe,” (2) “to enjoin a class III gaming

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activity,” (3) “located on Indian lands,” and (4) “conducted in violation of any

Tribal-State compact . . . that is in effect.” § 2710(d)(7)(A)(ii).

Here, the Nation argues that its suit meets each element of the abrogation

clause. We agree.

The first element of § 2710(d)(7)(A)(ii) focuses on who brings suit. And the

Officials argue that § 2710(d)(7)(A)(ii)’s language only encompasses suits brought

by Indian tribes that are parties to the tribal-state compact. But § 2710(d)(7)(A)(ii) is

not so limited. By its plain terms, the provision abrogates immunity when the suit is

“initiated by a State or Indian tribe” (and the other elements are met).

§ 2710(d)(7)(A)(ii). That language does not limit the abrogation clause only to those

suits brought by tribes that are parties to a compact; its plain language is broader than

that, including suits brought by “a[n] . . . Indian tribe.” Id. Nothing qualifies “Indian

tribe,” let alone something like “that is party to the compact.” So under the clause’s

plain language, it makes no difference which tribe brings suit, only that some tribe

with standing brings suit.

Given that plain language, “our inquiry is at an end.” Woods v. Standard Ins.,

771 F.3d 1257, 1265 (10th Cir. 2014) (citing United States v. Ron Pair Enters., Inc.,

489 U.S. 235, 241 (1989)); Carcieri v. Salazar, 555 U.S. 379, 387 (2009) (“This case

requires us to apply settled principles of statutory construction under which we must

first determine whether the statutory text is plain and unambiguous. If it is, we must

apply the statute according to its terms.” (citation omitted)). To be sure, Congress

“must make its intent . . . ‘unmistakably clear in the language of the statute.’” Lac du

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Flambeau Band of Lake Superior Chippewa Indians, 599 U.S. at 388 (quoting Fin.

Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo Investigativo, Inc., 598 U.S.

339, 346 (2023)). We thus apply a clear-statement rule to statutory text perceived to

abrogate tribal immunity. Id. And under that clear-statement rule, “‘if there is a

plausible interpretation of the statute’ that preserves sovereign immunity, Congress

has not unambiguously expressed the requisite intent.” Id. (quoting FAA v. Cooper,

566 U.S. 284, 290 (2012)).

Still, this clear-statement rule does not “displac[e] the other traditional tools of

statutory construction,” FAA, 566 U.S. at 291 (alteration in original) (quoting Richlin

Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008)), so all that is required is that the

abrogation be “clearly discernable from the statutory text in light of traditional

interpretive tools.” Id. 10 But one “cardinal” component of those traditional tools—

one that we turn to “before all others”—is that “a legislature says in a statute what it

means and means in a statute what it says there. When the words of a statute are

unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’”

Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992) (citations omitted)

10

FAA addressed waivers of federal sovereign immunity, but the Supreme

Court has adopted FAA’s clear-statement principles in the tribal-immunity context.

See Lac du Flambeau Band of Lake Superior Chippewa Indians, 599 U.S. at 388.

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(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). The abrogation clause’s

plain meaning is dispositive.

Because § 2710(d)(7)(A)(ii)’s plain language abrogates immunity for “any

cause of action initiated by a[n] . . . Indian tribe,” we hold that a suit brought by an

Indian tribe with a plausible injury—whether a party to the tribal-state compact or

not—satisfies the first element of § 2710(d)(7)(A)(ii)’s abrogation clause. And

because the Nation’s claim is brought by an Indian tribe, it satisfies the abrogation

clause’s first element.

The Nation’s claim likewise satisfies the abrogation clause’s remaining

elements. The parties do not dispute that the Warm Springs Casino conducts class III

gaming, so the Nation’s suit seeks to enjoin a class III gaming activity. 11 Instead, the

parties focus their attention on (1) whether the Warm Springs Casino is on Indian

land, and (2) whether the Nation challenges the violation of a tribal-state compact.

The Officials argue that the Warm Springs Casino is not on Indian lands. But

the Nation and Officials’ dispute appears to be less about whether the Tsalote

Allotment is on Indian lands than about whose Indian lands the Allotment is on. See

Reply Br. at 11 (“[T]he Tsalote Allotment is the Fort Sill Apache Tribe’s Indian

11

In the reply brief, the Officials argue that the Nation’s suit fails the second

element because its injunction would enjoin both class II and class III operations

since the casino performs both. But the Officials raised the argument for the first

time in their reply brief—and in conclusory fashion at that. We therefore decline to

reach this issue. See 3484, Inc. v. NLRB, 137 F.4th 1093, 1113 (10th Cir. 2025)

(finding an issue raised for the first time in a reply brief waived).

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lands.”); Appellee Br. at 27 (“[T]he Tsalote Allotment is ‘Indian lands’ under any

scenario.”). The Nation’s complaint alleged that “[t]he Tsalote Allotment is ‘Indian

land,’ but is not the FSA Tribe’s Indian land.” App. Vol. 2 at 27. The Nation says

that the Tsalote Allotment is Kiowa lands. And the Officials concede that the Tsalote

Allotment is Indian lands. See Appellant Br. at 3; Reply Br. at 11. So regardless of

whose Indian lands they are, the Tsalote Allotment remains Indian lands. 12

The Officials also argue that the Nation’s suit does not challenge a violation of

a tribal-state compact. The Fort Sill Apache Tribe–Oklahoma gaming compact

features a provision restricting where the Tribe may conduct gaming. It provides that

“[t]he tribe may establish and operate enterprises and facilities that operate covered

games only on its Indian lands as defined by IGRA.” App. Vol. 2 at 163 (emphasis

added). The Nation’s IGRA claim targets that provision: it argues that the Tribe is

operating the White Springs Casino on Kiowa lands, not on its own lands. The

Officials counter that the White Springs Casino rests on Fort Sill Apache Tribe lands,

not Kiowa lands.

We conclude that the Nation’s suit challenges a violation of the Tribe–

Oklahoma gaming compact. The Officials sidestep the relevant inquiry—whether the

12

The Officials argue that Indian trust lands must be land held in trust for the

tribe. And because Kiowa tribe “relinquished any claim it had” to the Allotment, the

lands cannot be Indian lands under the Nation’s theory. Reply Br. at 9. But that

ignores IGRA’s definition of Indian lands, which covers “any lands title to which

is . . . held in trust by the United States for the benefit of any Indian tribe or

individual.” 25 U.S.C. § 2703(4)(B) (emphasis added).

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Nation’s claim challenges the violation of the location provision—and invites us to

conclude on the merits that the Tsalote Allotment is actually the Tribe’s lands. See

Reply Br. at 11 (explaining that the Tsalote Allotment is the Tribe’s land and calling

the Nation’s argument to the contrary “completely baseless”). But this case comes to

us on a motion to dismiss, and we are bound to accept well-pleaded allegations as

true and draw reasonable inferences in the Nation’s favor. See Pueblo of Jemez v.

United States, 790 F.3d 1143, 1147–48 (10th Cir. 2015).

The Nation’s complaint alleges that the Allotment was originally held in trust

for George Tsalote, a member of the Kiowa tribe, App. Vol. 2 at 11, rendering it an

“original Kiowa allotment,” App. Vol. 2 at 12. The complaint further alleges that the

Tribe purchased the Allotment, and “the BIA deeded the land in trust to the FSA

Tribe.” App. Vol. 2 at 16. But, the Nation alleges, this transfer was invalid—void

and without effect—because the “Tribe did not validly acquire the Tsalote

Allotment.” App. Vol. 2 at 27. So according to the Nation, the Tsalote Allotment

remains Kiowa lands, not Fort Sill Apache Tribe lands, and thus operating the casino

there “violates the FSA Tribe’s tribal-state compact with Oklahoma.” App. Vol. 2 at

27. We think those allegations challenge a violation of the Tribe’s gaming compact

with Oklahoma.

The Nation’s IGRA claim is a cause of action initiated by an Indian tribe to

enjoin a class III gaming operation on Indian land conducted in violation of a gaming

compact. The claim therefore falls within § 2710(d)(7)(A)(ii), and that provision

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abrogates the Tribe’s tribal immunity against the claim. Tribal immunity does not

protect the Officials from the Nation’s IGRA claim.

2. Official-Capacity Claim under RICO

The Nation next argues that Ex Parte Young displaces tribal immunity for its

RICO claim, which seeks injunctive and declaratory relief. Although Ex Parte Young

applies most often to state sovereign immunity, we also apply the doctrine to tribal

immunity. Crowe & Dunlevy, 640 F.3d at 1154–55 (10th Cir. 2011) (“[W]e join our

sister circuits in expressly recognizing Ex parte Young as an exception not just to

state sovereign immunity but also to tribal sovereign immunity.”). The Ex Parte

Young doctrine permits a plaintiff to circumvent tribal sovereign immunity by

“seeking to enjoin alleged ongoing violations of federal law.” Norton, 862 F.3d at

1251 (quoting Crow & Dunlevy, 640 F.3d at 1154). The exception applies to suits

against tribal officials, not against the tribal entity. Id. (finding Ex Parte Young

inapplicable because the “complaint asserts claims against those tribal entities rather

than their constituent officials”).

To determine whether Ex Parte Young applies, the court “need only conduct ‘a

straightforward inquiry’” into (1) whether the “complaint alleges an ongoing

violation of federal law,” and (2) whether the complaint “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)). But even where those two elements are met, Congress may have limited

the availability of an Ex Parte Young suit. That is so when Congress has enacted a

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“carefully crafted and intricate remedial scheme” to remedy the statutory violation.

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996). And that limited relief

“display[s] an intent not to provide the ‘more complete and more immediate relief’

that would otherwise be available under Ex parte Young.” Verizon, 535 U.S. at 647

(quoting Seminole Tribe, 517 U.S. at 75)).

Ex Parte Young also requires that the plaintiff sue an official charged with

enforcing the challenged provision or engaging in challenged conduct. Kitchen v.

Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014) (“Under Ex Parte Young, a state

defendant sued in his official capacity must ‘have some connection with the

enforcement’ of a challenged provision.” (quoting Ex Parte Young, 209 U.S. at 157));

Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1260 (10th Cir. 2002) (describing a

proper Ex parte Young suit as “seek[ing] only prospective, injunctive relief against

state officers charged with carrying out the [challenged conduct]”).

The Nation seeks to enjoin the operation of the White Springs Casino, but it

has not alleged a connection between the Officials and the continuing operation of

the White Springs Casino. The Nation does not allege that the Officials “have a

particular duty to” operate the casino. Id. (citing Prairie Band Potawatomi Nation v.

Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)). There are two groups of Officials

here: members of the Tribe’s governing board and members of the Tribe’s gaming

commission. At most, the Nation alleges that the Officials on the governing board

voted or approved the operation of the casino at some point in the past. See, e.g.,

App. Vol. 2 at 6 (“Ware is the Chairwoman of the Fort Sill Apache Tribe and is the

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official charged with supervising the affairs of the FSA Tribe and its business

committee.”); App. Vol. 2 at 7 (“Mann is . . . the official charged with . . . developing

proposals relating to implementing programs.”). Those allegations do not show a

connection to the continuing operation of the White Springs Casino. As for the

Officials on the gaming commission, the Nation only alleges that they “ensur[e]

compliance” with gaming laws. See App. Vol. 2 at 7–8. But having a duty to ensure

compliance is not the same as having a duty to operate the casino.

The Nation’s responses are unconvincing. It first argues that the Officials

waived their Ex Parte Young counterargument. But because tribal immunity raises a

jurisdictional issue, Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007,

1009 (10th Cir. 2007), we have an independent obligation to consider jurisdictional

defects. So we must consider whether Ex Parte Young applies, even if the Officials

did not raise the issue below. The Nation’s back-up argument is that it has “alleged

in detail” that the Officials have authority over the casino’s continuing operations.

But aside from the Nation’s allegations that some of the Officials hold compliance

authority, the Nation offers a general allegation that the Officials are “conspiring to

cause the Enterprise to open and operate an illegal gambling business.” App. Vol. 2

at 30. But those allegations do not address any particular duty or power that the

Officials have to operate the casino. See Chamber of Com., 594 F.3d at 760. The

Nation’s remaining allegation says that the “Fort Sill Apache Gaming

Commission . . . is the tribal entity charged with operating the Enterprise’s casino

gaming pursuant to IGRA.” App. Vol. 2 at 29 ¶ 106. But the complaint repeatedly

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alleges that the gaming commission “is the tribal entity charged with regulating the

FSA Tribe’s casino gaming pursuant to IGRA,” App. Vol. 2 at 7, and that the

commissioners are “charged with ensuring compliance with federal and state gaming

laws,” App. Vol. 2 at 7–8. So the natural reading of the Nation’s allegation in ¶ 106

is simply that the commission is charged with ensuring the casino is operated in

accordance with IGRA.

In short, Ex Parte Young does not help the Nation because its claims are not

against officials charged with operating the casino.

C. Individual-Capacity Claim under RICO

The Officials raise two arguments against the Nation’s individual-capacity

RICO claims: (1) these claims, though nominally against the Officials, are actually

against the Tribe, so tribal immunity still applies, and (2) if the claims are actually

against the Officials, then they are entitled to qualified immunity. We conclude that

the Officials cannot rely on tribal immunity because the tribe is not the real party in

interest—only the individual Officials are. And we are without jurisdiction to

consider the Officials’ qualified immunity because that issue formed no part of the

collateral order decided below.

The Nation’s RICO theory is that the Officials have conspired to operate the

Warm Springs Casino, which (they allege) constitutes a pattern of racketeering

activity consisting of illegal gambling and money laundering. See 18 U.S.C. § 1955

(illegal gambling); 18 U.S.C. §§ 1956, 1957 (money laundering).

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A suit challenging an official’s acts comes in two varieties: official-capacity

claims and individual-capacity claims. Both varieties name the individual officer as

defendant, but they are distinguished by who stands as the real party in interest—the

individual officer or the entity on whose behalf the individual acts. See Hafer v.

Melo, 502 U.S. 21, 25 (1991). In an official-capacity claim, the entity stands as the

real party in interest because official-capacity suits “generally represent only another

way of pleading an action against an entity of which an officer is an agent.”

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (emphasis added) (quoting Monell

v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). And when the entity

is the real party in interest, the officer—though named as defendant—may raise the

immunities “that the government entity possesses.” Hafer, 502 U.S. at 25.

Conversely, when the officer himself is the real party in interest, then he may raise

“personal immunity defenses,” like qualified immunity. Lewis v. Clarke, 581 U.S.

155, 163 (2017). These rules apply equally in the tribal sovereign immunity context

and in the state sovereign immunity context. Id. (“There is no reason to depart from

these general rules in the context of tribal sovereign immunity.”).

To determine whether the Officials here can raise the Tribe’s immunity, we

ask whether the Tribe is “the real party in interest” because that “dictates what

immunities may be available” to the official. Id. The touchstone for the real-party-

in-interest inquiry is “who may be legally bound by the court’s adverse judgment.”

Id. at 165. We do not “simply rely on the characterization of the parties in the

complaint, but rather must determine in the first instance whether the remedy sought

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is truly against the sovereign.” Id. at 162 (citing Ex parte New York, 256 U.S. 490,

500–02 (1921)). And when a plaintiff seeks to impose “individual liability,” id. at

162, on the defendant for “his individual wrongdoing,” id. at 165–66, the judgment

binds the individual officer, not the tribe. Id. at 163 (explaining that judgment

against defendant for his personal actions “will not operate against the Tribe”). In

that scenario, the remedy is against the individual, not the tribe.

These principles foreclose the Officials’ reliance on the Tribe’s immunity.

The Nation seeks to impose individual liability on the Officials for individual acts

that they have taken in furthering an unlawful enterprise. The Officials themselves,

then, would be “legally bound by the court’s adverse judgment” regarding the RICO

claims, not the Tribe. That fact means that as far as the RICO claim goes, the

Officers—not the Tribe—are the real parties in interest. And because the Officers

are the real parties in interest, they cannot raise the Tribe’s sovereign immunity.

Recognizing this possible outcome, the Officials argue in the alternative that

they are entitled to qualified immunity. But we do not have jurisdiction under the

collateral-order doctrine to consider this issue. The Officials never raised qualified

immunity before the district court, so the district court neither explicitly nor

implicitly denied the Officials’ qualified immunity. No order denying qualified

immunity therefore provides an independent ground to exercise our collateral-order

jurisdiction in this case. Instead, our jurisdiction here arises from the court’s denial

of tribal immunity.

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When an appeal comes to us in this jurisdictional posture, our jurisdiction is

limited to reviewing (1) the court’s denial of tribal immunity and (2) “otherwise

nonfinal and nonappealable lower court decision[s] that overlap[] with an appealable

decision” over which we choose to exercise pendent jurisdiction. Moore v. City of

Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995) (citing Snell v. Tunnell, 920 F.2d 673,

676 (10th Cir. 1990)). Qualified immunity, of course, is not tribal immunity, so the

court’s denial of tribal immunity does not encompass a denial of the Officials’

qualified immunity. And we will not invoke our pendent jurisdiction here—an

exercise that is “generally disfavored,” Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir.

2015) (quoting Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253,

1264 (10th Cir. 1998)). 13 The Officials have not explained why we should exercise

our pendent jurisdiction; they simply encourage us to resolve qualified immunity “at

the earliest possible stage.” Appellant Br. at 31 (quoting Pearson v. Callahan, 555

U.S. 223, 232 (2009)). And they argue that qualified immunity cannot be waived.

But that conflates whether the Officials waived qualified immunity with whether we

have jurisdiction to review the issue.

In sum, because qualified immunity formed no part of the order below and we

decline to exercise pendent jurisdiction, we do not have jurisdiction to review the

issue of the Officials’ qualified immunity.

13

We also doubt whether we could exercise pendent jurisdiction over an issue

never decided in the district court. Cox, 800 F.3d at 1231 (characterizing pendent

jurisdiction as operating on “otherwise nonappealable decisions”).

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III. Conclusion

For the forgoing reasons, we affirm in part and reverse in part.

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