Opposition Brief — Cohen v. Little Six, Inc.

No. 96-1962

In The

Supreme Court of the United States

October Term, 1997

, INC., a foreign corporation,

»/a Mystic Lake Casino,

Respondent.

On Petition For Writ Of Certiorari

To The Minnesota Supreme Court

>

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

2

STEVEN F. Otson, Counsel of Record

BiuEDoc, Otson & Sma.t, P.L.L.P.

Southgate Office Plaza, Suite 500

5001 West 80th Street

Minneapolis, Minnesota 55437

Telephone (612) 893-1813

Attorney for Respondent

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QUESTIONS PRESENTED BY THE PETITION

Did Congress confer sovereign immunity on Indian

tribes?

This question was not addressed below.

If so, is such conferral subject to strict constitutional

scrutiny under Adarand Constructors, Inc. v. Pena, 115

S.Ct. 2097 (1995)?

This question was not addressed below.

Does recognition by the Minnesota Supreme Court

that state courts do not have subject matter jurisdic-

tion over a tort claim, where the defendant is a

wholly-owned enterprise of a sovereign Indian tribe,

constitute state action for purposes of equal protec-

tion analysis?

This question was not addressed below.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED BY THE PETITION...... i

SAR Se CARSON tik 5 bbe 000d esecicccsivewsn il

STATEMENT OF THE CASE.......... ihebihenl 1

ee er eee Porn ry Cy eee er re 1

I. REVIEW OF THE QUESTIONS PRESENTED

BY THE PETITION IS NOT APPROPRIATE

AT THIS TIME, AS THEY WERE NOT

PROPERLY ASSERTED BELOW AND THE

MINNESOTA SUPREME COURT DID NOT

yo Bt Bs Bo Perr errr 2

Il. TRIBES EXERCISE INHERENT POWERS OF

A LIMITED SOVEREIGNTY WHICH HAS

NEVER BEEN EXTINGUISHED............ 7

lil. TRIBAL SOVEREIGN IMMUNITY DOES

NOT EXIST “BY VIRTUE OF CONGRES-

SARs. PA Re ws ckcneninteideblbeasne 11

[V. EVEN IF TRIBAL SOVEREIGN IMMUNITY

WERE NOTHING MORE THAN A FEDERAL

AFFIRMATIVE ACTION PROGRAM, THE

SOUND REASONING OF THIS COURT IN

MORTON WOULD CONTROL, AND DOES

NOT CONFLICT WITH ADARAND ......... 14

V. THE MINNESOTA SUPREME COURT’S

ORDER, RECOGNIZING THAT THE

COURT DID NOT HAVE SUBJECT MATTER

JURISDICTION TO ABROGATE THE

TRIBE’S IMMUNITY, DID NOT CONSTI-

TUTE “STATE ACTION” FOR PURPOSES

OF EQUAL PROTECTION ANALYSIS ..... 18

CLAIR 5 ve cawesdesteed fib vousdievedaeeasew 20

TABLE OF CONTENTS - Continued

APPENDIX

Trial Court’s Order and Judgment

Notice of Appeal to Court of Appeals .........1 App.

Petitioner’s Motion for Rehearing

Petition for Review of Decision of Court of

Ra EE Gees er ory reer ere App.

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097

i) PEP SG Poe eee er Ee ee ge ree rs pee passim

Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71

PI fk on kA wea bak ek ae OLE REO WE Weak E I 7

Board of County Comm’rs v. Seber, 318 U.S. 705

fp PCT ee Oe ree ee OPP en Tre rr re tre pee yh 16

Board of Directors of Rotary Int’l v. Rotary Club of

Emerte GBS TES. Bas CRs csc iek cecdcksscickas eee eee

Bryan v. Itasca County, 426 U.S. 373 (1976)........ 8, 20

California v. Cabazon Band of Mission Indians et

i, Se ts Pe LEE 6 a Ar Ska hee 9, 20

Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1981) ..... y

Cherokee Intermarriage Cases, 203 U.S. 76 (1906) .... 16

Cherokee Nation v. Georgia, 8 L.Ed. 25 (1831)..... 8, 17

eo, Be ae a ee | ere rere rrr er 6

Idaho v. Coeur d’Alene Tribe, No. 94-1474 (issued

UE ST, SUE A oi 6 doo CES Ka eee thea ad aes 7

lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) .....9

Johnson and Graham’s Lessee v. McIntosh, 21 U.S.

eS Se I es ota Ve ees ccuys waa ewes 7

Mattz v. Arnett, 412 47S. GBi (ISTO). kee ciatce ceca. 20

McClanahan v. Arizona State Tax Comm’n, 411 ‘

BF s Sie Ra koh ec ee ee Ee ea 17

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

PRIMED oie Puce WEP UKE D oad Reese kedb es bar eritenus 9

TABLE OF AUTHORITIES - Continued

Page

Morton v. Mancari, 417 U.S. 535 (1974).......... passim

Morton v. Ruiz, 415 U.S. 199 (1974)... ccc ccc cces. 17

National Farmers Union Ins. Co. v. Crow Tribe,

Oe re ee RE oo hee pa eh nw Ree a 10

New Mexico v. Mescalaro Apache Tribe, 462 U.S.

Be SE nie ee coho Vere ie eta eee een sex ackins 9

Oklahoma Tax Commission v. Potawatomi Tribe,

Oe Rs ee Cee KEN Pika Oo e seesaw ears 13

Oliphant v. Suquamish Indian Tribe, 435 U.S. 197

CRO oi ae Wi deve ek oo ie eee ee 10

Perry v. Thomas, 462 U.S. 463 (1967). ........c60see: 6

Pope v. Illinois, 481 U.S. 497 (1987) ...............4.. 6

Prescott, et al. v. Little Six, Inc., 897 F. Supp. 1217

: SN Bie oe kaa bia ds oe eb bes Fee cane 10

Puyallup Tribe, Inc. v. Dept. of Game, 433 U.S. 165

Bg FOTOS EET Ee er ger eM, LUN Rang ae 13

Rice v. Rehner, 463 U.S. 713 (1983). ........ccccceees 11

Riggins v. Nevada, 504 U.S. 127 (1992)............... 6

Roff v. Burney, 168 U.S. 218 (1897).............. ‘ws Be

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). .passim

Shelley v. Kraemer, 334 U.S. 1 (1948)............ 18, 19

Simmons v. Eagle Seelatsee, 384 U.S. 209 (1966)..... 17

Sroan. v. Lemon, 413 U.S. Gio (IS7a)e cca sescsaccnesss 18

United States v. Kagama, 118 U.S. 375 (1886)........

TABLE OF AUTHORITIES - Continued

Page

United States v. Mazurie, 419 U.S. 544 (1975)... 8, 9, 20

United States v. United States Fidelity & Guaranty

ne RE ee ae 13

United States v. Wheeler, 435 U.S. 313 (1978)..8, 10, 11

Williams v. Lee, 358 U.S. 217 (1959)........... 3, 10, 17

Worcester v. Georgia, 31 U.S. (6 Pet) 515 (1832) ...... 8

STATE CASES

Cohen v. Little Six, Inc., 543 N.W.2d 376

ee | eer eee ere rer rr reer ree

Gavle v. Little Six, Inc., et al., 555 N.W.2d 284

SK, CE cs ae gv ue kh eia ect aan eee Ex eae (Wilh. ie

CONSTITUTION

op Se ee Se. i Pee ree emt ir a Hy

STATUTES, CODES AND RULES

I 8 serra ee 10

a ae ey OY OUR sah oe ee ink ianyeiadee erway 1

On eb aa 9, 10, 14, 15

ABA Model Rules of Conduct 3.3(a)(i) .............. 12

RN a ee ak dn DOME Re ee ek hee Re 12

i a ce Be 12

LEGISLATIVE/ RULEMAKING HIstory

et NE Ue LENE 60 cbs ose bea ca cc eeee how wns 10

TABLE OF AUTHORITIES —- Continued

Page

MISCELLANEOUS

American Indian Policy Review Comm’n, 95th

Cong., Ist Sees., Final Report (1977) . 6.6606 .cs cece 16

F. Cohen, Handbook of Federal Indian Law (1982 ed.) ..7, 15

F. Cohen, Handbook of Federal Indian Law (1945 ed.) ..... &

F. Victoria, De Indis et de Jure Belli Relictiones 128 (J.

mmee frames. 1917} (otim. Od: 3597) oo ics iciec cc eecs 7

STATEMENT OF THE CASE

Petitioner brought suit in Minnesota state district

court, alleging that various injuries resulted from a visit

to Mystic Lake Casino, owned and operated by Respon-

dent, Little Six, Inc. (“LSI”). LSI is a corporation wholly-

owned by the Shakopee Mdewakanton Sioux (Dakota)

Community, a federally-recognized Indian tribe (the

“Tribe”), and is the instrumentality through which the

Tribe operates its lawful gaming activities pursuant to the

Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq.

The trial court dismissed the complaint for lack of

subject matter jurisdiction, based on LSI’s sovereign

immunity from suit. The Minnesota Court of Appeals

affirmed the trial court’s dismissal, holding as well that

Minnesota courts lacked subject matter jurisdiction over a

claim arising entirely within Indian country, and involv-

ing an Indian tribe or instrumentality of a tribe. The

Minnesota Supreme Court, in turn, summarily affirmed

the Court of Appeals decision, relying on its opinion in

Gavle v. Little Six, Inc., et al., 555 N.W.2d 284 (Minn. 1996),

petition for cert. pending (No. 96-1215, docketed Jan. 30,

1997). (Petition A-78).

ARGUMENT

The Petition is nothing more than a house built on

sand. It is based on the astounding assertion that “[t]ribal

sovereign immunity exists by virtue of Congressional

action... ,” (Petition 19), and is predicated on the false

assumption that Congress is the source of tribal sover-

eignty. Petitioner implies that sovereign immunity is a

federal affirmative action program, and should therefore

be subject to strict scrutiny under the United States Con-

stitution, as are other race-based federal programs. Id. at

8, citing Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097

(1995). Disregarding the fact that this argument was not

addressed below, the Petition must be rejected, for tribal

sovereignty is inherent and does not exist by virtue of

congressional action. Nor was tribal sovereign immunity

created by a federal statutory scheme. The purported

conflict between Adarand and Morton v. Mancari, 417 U.S.

535 (1974) (which Petitioner urges as the primary basis

for grant of the Writ) does not exist. There is no state

action at issue here to result in a denial of equal protec-

tion, nor is there a conflict among the courts respecting

the issues urged as basis for granting the writ. When

Petitioner’s arguments are examined in light of 150 years

of sound judicial precedent concerning Indian tribal sov-

ereignty, it is clear that the Petition must be denied.

I. REVIEW OF THE QUESTIONS PRESENTED BY

THE PETITION IS NOT APPROPRIATE AT THIS

TIME, AS THEY WERE NOT PROPERLY

ASSERTED BELOW AND THE MINNESOTA

SUPREME COURT DID NOT PASS ON THE

ISSUES.

Petitioner is appealing the Minnesota Supreme

Court’s summary affirmance of the Minnesota Court of

Appeals’ affirmance of the trial court’s dismissal of the

cause for lack of subject matter jurisdiction. See Minne-

sota Supreme Court Order (Petition A-2); Minnesota

Court of Appeals Opinion (Petition A-3); Trial Court's

Order and Judgment (App. 1).! The trial court based its

dismissal on its recognition of the fact that LSI shares the

Tribe’s immunity from unconsented suit, and that neither

the Tribe nor LSI had waived, nor had Congress abro-

gated that immunity. (App. 10).

There was only one federal constitutional issue

raised in the trial court and the Court of Appeals. Peti-

tioner argued that dismissal would relegate the claim to

tribal court, which Petitioner asserted is necessarily a

1 Yet, astonishingly, Petitioner still asserts that it

“prevail[ed] in the courts below on subject matter jurisdiction.”

Petition 7 n.1, citing the decision of the Minnesota Supreme

Court in Gavle. Contrary to Petitioner’s assertion that Gavle

overrules the Court of Appeals in this case on the issue of

subject matter jurisdiction of Minnesota courts over a claim

against a tribe or instrumentality of a tribe where the cause of

action arose entirely within Indian country, Gavle left the issue

open. All matters in issue here occurred in Indian country, and it

is clear from a careful reading of Gavle that Minnesota courts

would not have subject matter jurisdiction over this suit even if

sovereign immunity were never asserted. Such jurisdiction

would clearly lie with the Tribal Court, as determined by the

Court of Appeals. Cohen, 543 N.W.2d at 381, citing Williams v.

Lee, 358 U.S. 217 (1959) (Petition A-10-12). If it were true that

Petitioner had prevailed on the issue of subject matter

jurisdiction in the courts beiow, then this Petition would never

have been filed.

violation of the federal guarantee of due process of law.

See Minn. Ct. of Appeals Opinion (Petition A-13).* In

order to further the due process argument, Petitioner also

insinuated that the court’s recognition of sovereign

immunity would amount to state action for purposes of

the due process analysis. The trial court did not even find

it necessary to address these specious arguments. See

Trial Court’s Order and Judgment (App. 1).

After the trial court granted LSI’s Motion to Dismiss

for Lack of Subject Matter Jurisdiction, Petitioner

appealed her due process claim to the Minnesota Court of

Appeals. As defined by Petitioner:

The issues raised on appeal will include the

following: (1) Whether Congress’ codification of

the Indian Gaming Regulatory Act, coupled

with the Tribal-State Compacts between the

Shakopee Mdewakanton Dakota Sioux Commu-

nity [sic] and the Certificate of Authority to

Transact Business in the State of Minnesota

under Minn. Stat. § 303.01, acts as a clear waiver

of sovereign immunity, with respect to require-

ments of the Indian Gaming Regulatory Act,

2 Petitioner states that constitutional due process is

violated where exclusive or primary jurisdiction is in tribal

courts, asserting such courts lack “judicial independence and

adequate procedures.” Petition 7 n.1, citing the dissenting

opinion in Cohen. It bears noting that there was absolutely

nothing of record to support the dissent’s diatribe regarding

tribal courts. Given the dissent’s obvious disregard for that

fundamental tenet of American jurisprudence — a decision by a

court must be based on the record — it is small wonder that the

Minnesota Supreme Court declined to respond to Petitioner’s

due process claims, when those claims relied upon the dissent’s

opinion for support.

Yl

specifically, the Respondent’s duty to construct,

operate and maintain it’s [sic] facility to insure

the public’ [sic] health and safety; and (2)

Whether sovereign immunity in this suit vio-

lates Appellant’s guarantees of substantive due

process under the United States Constitution.

Notice of Appeal to Court of Appeals at { 5 (App. 14).

At this point, Petitioner had not raised even a hint of

the current argument that sovereign immunity is a fed-

eral program subject to strict scrutiny under equal protec-

tion analysis. The Court of Appeals promptly affirmed

the trial court’s dismissal, holding that, not only had LSI

not waived its sovereign immunity from suit, but Minne-

sota courts lack subject matter jurisdiction in the first

instance to hear claims against LSI arising from acts

occurring entirely in Indian country, and that such claims

must be brought in tribal court. See Cohen, 543 N.W.2d 376

(Minn.App. 1996) (Petition A-10-12). The Court of

Appeals also promptly disposed of Petitioner’s due pro-

cess argument, holding that the Petitioner had “not been

deprived of her day in court, but only of her day in the

court of her choice.” (Id. A-13, emphasis in the original). No

doubt inspired by the aberrant dissenting opinion in the

Court of Appeals (Id. A-14),> Petitioner proposed the new

3 It can hardly be said with any certainty that the Court of

Appeals dissent raised the present issues sua sponte, but it can

hardly be said that it did not. Judge Randall’s sprawling opinion

(63 pages) covered topics as diverse as World War II-era

Japanese interment camps (Petition at A-58) and the Pledge of

Allegiance (Petition at A-61), and relied extensively on matters

not of record in the proceedings, but had relatively little to do

with the actual issues at hand.

equal protection argument for the first time in the Minne-

sota Supreme Court. See Petition for Review of Decision

of Court of Appeals (App. 23).

Although the Minnesota Supreme Court granted

review, it took no notice of this new claim, relying instead

on its opinion in Gavle. (Petition A-78). In Gavle, the Court

held that LSI shared the Tribe’s immunity (Id. A-102), and

had not waived it (Id. A-106) — the very basis for the trial

court’s dismissal in the present case. It was unnecessary,

then, to restate in this case what had been held in Gavle.

Petitioner’s due process claims were given no credence,

and the court declined to address the new equal protec-

tion claim (even after Petitioner’s Motion for Rehearing,

App. 16).

“When ‘the highest state court has failed to pass

upon a federal question, it will be assumed that the

omission was due to want of proper presentation in the

state courts, unless the aggrieved party in this Court can

affirmatively show the contrary.’” Board of Directors of

Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 550

(1987) (internal citations omitted). It is not appropriate

for the Court to pass on questions not properly presented

to the Minnesota Supreme Court. Riggins v. Nevada, 504

U.S. 127, 133 (1992); Clark v. Jeter, 486 U.S. 456, 459-60

(1988). Nor is it appropriate for this Court to review

questions not addressed below. See Perry v. Thomas, 482

U.S. 483, 492 (1987); Pope v. Illinois, 481 U.S. 497, 504

(1987).

There may be some doubt as to whether failure to

present issues before the state courts, or failure of the

Minnesota Supreme Court to address the issues, estab-

lishes a jurisdictional bar to this Court’s review. Bankers

Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 79 (1988)

(“Whether appellant’s failure to raise thése claims in the

[state] courts deprives us of all power to review them

under our certiorari jurisdiction is an unsettled ques-

tion.”). But, regardless of whether the bar to review is

jurisdictional or merely prudential, the Court should

decline to hear Petitioner’s new claims at this time.

Il. TRIBES EXERCISE INHERENT POWERS OF A

LIMITED SOVEREIGNTY WHICH HAS NEVER

BEEN EXTINGUISHED.

Even if the issues had been properly presented, they

are fundamentally flawed. The sovereign status of Indian

tribes has been recognized since the earliest recorded

interactions between Europeans and Indian people. As

early as 1557 tribal sovereignty was acknowledged as the

basis for treaties between Europeans and the original

inhabitants of the lands presently contained within the

borders of the United States. See F. Victoria, De Indis et de

Jure Belli Relictiones 128 (J. Bate transl. 1917) (orig. ed.

1557); F. Cohen, Handbook of Federal Indian Law 52-55 (1982

ed.). As indigenous people with powers of self-govern-

ment, the United States was compelled to treat with the

Indians, and to establish government-to-government rela-

tionships with Indian tribes. This Court acknowledged

the sovereign status of Indian tribes as early as 1823, see

Johnson and Graham's Lessee v. McIntosh, 21 U.S. (8 Wheat.)

543, 593-94 (1823), and Supreme Court precedent from

that day to this has consistently reaffirmed that Indian

tribes are sovereign. See Idaho v. Coeur d'Alene Tribe, No.

94-1474 (issued June 23, 1997) (recognizing that “the plan

of the [constitutional] convention did not surrender

Indian tribes’ immunity for the benefit of the States”).

The present right of tribes to govern their territories

and the persons within them flows from this preexisting

sovereignty, a sovereignty that pre-dates the United

States Constitution, as was fully recognized by the

Supreme Court in Cherokee Nation v. Georgia, 8 L.Ed. 25

(1831). The status of Indian tribes in the law is unique, for

they are “domestic dependant nations.” Id. The sover-

eignty of Indian tribes was not delegated by the federal

government, United States v. Wheeler, 435 U.S. 313, 328

(1978), created by the United States Constitution, or

granted by any federal act, for the powers of Indian tribes

are “inherent powers of a limited sovereignty which has

never been extinguished.” Id. at 322, citing F. Cohen,

Handbook of Federal Indian Law, at 122 (1945 ed.).

Central to the discussion of Petitioner’s claims is the

fundamental proposition that Indian tribes function as

“distinct, independent political communities, retaining

their original natural rights.” Worcester v. Georgia, 31 U.S.

(6 Pet) 515, 559 (1832); see also Santa Clara Pueblo v. Mar-

tinez, 436 U.S. 49, 55 (1978). Petitioner seeks to have this

Court treat Indian tribes as little more than private volun-

tary organizations, a proposition long rejected by this

Court. Bryan v. Itasca County, 426 U.S. 373, 388 (1976)

(holding that states are without civil regulatory jurisdic-

tion over Indian tribes, and stating that the Supreme

Court long ago rejected the idea that Indian tribes are

little more than “private, voluntary organizations”), citing

United States v. Mazurie, 419 U.S. 544, 557 (1975). It is their

inherent sovereignty which permits Indian tribes to exer-

cise powers of self-government over their territories and

the persons within them, Mazurie, and it is the original

natural rights of Indian tribes, including powers of self-

government and the right to function immune from suit,

to which Petitioner is truly opposed.‘

In addition to ignoring the fact that Indian tribes are

governments, not simply groups of individuals, Peti-

tioner ignores the distinction between inherent sover-

eignty and the exercise of powers delegated from the

federal government. Although the exercise of powers of

self-government in the sphere of civil jurisdiction may be

subject to Congress’ plenary oversight, see, e.g., 25 U.S.C.

* Tribal sovereignty has been recognized in a variety of

contexts, which include, but are not limited to: the right of

Indian tribes to conduct gaming on reservation lands, California

v. Cabazon Band of Mission Indians et al., 480 U.S. 202 (1987)

(holding state and local gaming regulations not applicable on

tribe’s reservation, and that Indian tribe had inherent sovereign

authority to engage in gaming activity); the jurisdiction of a

tribal court over causes of action arising in Indian country, lowa

Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) (finding that federal

district court must abstain from hearing an action where there

exists a tribal forum with a colorable claim to jurisdiction); tribal

taxing authority, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

(1982) (holding tribal severance tax on oil and gas leases of non-

Indians was valid exercise of inherent tribal sovereignty); tribal

hunting and fishing regulation, New Mexico v. Mescalaro Apache

Tribe, 462 U.S. 324 (1983) (holding tribal code regulating non-

Indian hunting and fishing on reservation lands was valid

exercise of inherent sovereign authority); and tribal health

regulation, Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1981), cert.

denied, 496 U.S. 967 (1982) (holding application of tribal health

regulations to non-Indians on fee lands within the reservation a

valid exercise of inherent tribal sovereign authority).

10

§ 476 [Indian Reorganization Act]; 25 U.S.C. § 1302

[Indian Civil Rights Act], such oversight did not create

the Indians’ power to govern themselves; it merely

reflects Congress’ recognition of inherent tribal sover-

eignty. The exercise of tribal powers of self-government

does not require congressional action, for tribal powers of

self-government exist at law already, Wheeler, 435 U.S. at

315; see also National Farmers Union Ins. Co. v. Crow Tribe,

471 U.S. 845, 854-855 (1985), and are retained to the extent

“not withdrawn by treaty or statute, or by implication as

a necessary result of their dependent status.” Wheeler, 435

U.S. at 323; Oliphant v. Suquamish Indian Tribe, 435 U.S. 197

(1978); see also 55 Interior Dec. 14 (1934).°

Petitioner cites no treaty, statute or withdrawal by

implication of the Tribe’s sovereign status that would

warrant the conclusion that the Tribe exists, or has

authority to assert its powers of self-government only by

virtue of affirmative Congressional action. Clearly, Indian

tribes have not given up their inherent sovereignty

wholesale, Williams v. Lee, 358 U.S. 217, 220 (1959);

Wheeler, 435 U.S. at 323, nor has the Tribe ceded its

inherent sovereignty, as evidenced by continued recogni-

tion by the federal government. See, e.g., Prescott, et al. v.

Little Six, Inc., 897 F. Supp. 1217, 1220 (D. Minn. 1995).

> Those attributes of sovereignty withdrawn by treaty or

statutes are the authority to determine relations with foreign

governments and the authority to freely alienate tribal lands.

Wheeler, 435 U.S. at 323. The attribute withdrawn by implication

as a necessary result of the dependant status of tribes is the

authority to exercise criminal jurisdiction over non-members of

the tribe. Oliphant, 435 U.S. at 197. None of these attributes is in

issue here.

11

Because Petitioner’s entire argument rests on the proposi-

tion that Indian tribal sovereignty is created by congres-

sional act, and because this underlying premise is

patently false, the Court should deny the Petition.

Ill. TRIBAL SOVEREIGN IMMUNITY DOES NOT

EXIST “BY VIRTUE OF CONGRESSIONAL

ACTION.”

In an effort to lend credence to the argument that

sovereign immunity is the equivalent of a federal affirma-

tive action program, amenable to analysis under the rea-

soning of this Court in Adarand, Petitioner makes the

outrageous claim that “Tribal sovereign immunity exists

by virtue of Congressional action... ,” (Petition 19), and

cites Rice v. Rehner, 463 U.S. 713, 719 (1983); Santa Clara

Pueblo, 436 U.S. at 58; and Wheeler, 435 U.S. at 313, for

support. This is a blatant misstatement of the holdings of

these cases. None of them expressly states, or even

remotely begins to imply, that sovereign immunity is

nothing more than a “federal benefit.” (Petition 9). To the

contrary, each cited case, at the page identified by Petitioner,

states that the sovereign powers of Indian tribes are

inherent, and are retained to the extent not divested by an

exercise of Congress’ plenary power over Indian tribes.

Petitioner further states, entirely without support

from either decisional or statutory law, that “Congress, in

an exercise of its plenary power, has established a statu-

tory scheme permitting Indian tribes, and no other group,

to assert sovereign immunity as a defense in all civil

12

cases.” (Petition 19, emphasis added). Yet, incredibly,

Petitioner fails to cite to the law creating this purported

“statutory scheme”. Considering that congressional

action is absolutely essential to Petitioner’s “strict scru-

tiny” argument, and in light of the fact that the purported

statute would constitute the only evidence of such con-

gressional action sufficient for this Court to apply “strict

scrutiny” to any aspect of this case, Petitioner’s failure to

cite the purported statute should settle the matter for this

Court.® If such a statute exists, then perhaps Petitioner’s

arguments would warrant some consideration; absent

such a statute, they warrant none.’

To state that Indian tribes are sovereign is, therefore,

a truism. That Indian tribal sovereignty is inherent, and

was not created by Congressional action is one of the

bedrock legal principles in the area of federal Indian

jurisprudence. See discussion infra. at II. Further, to state

that “dependent as well as dominant sovereigns” are

6 It is a violation of the rules governing practice before this

Court for Petitioner’s counsel to mislead the Court. Petitioner’s

counsel has stated as fact that there is a statutory scheme,

established by Congress, permitting Indian tribes to assert

sovereign immunity from suit, when clearly there is none. Rule

11 requires candor toward the tribunal, and prohibits a lawyer

from knowingly making a misleading legal argument to the

tribunal. F.R.C.P. 11; see also ABA Model Rules of Conduct

3.3(a)(i); MN.R.C.P. 3.1(a)(3).

7 Petitioner’s apparent concern for the rights of Indian

tribes (Petition 17-19), and her desire to protect Indians and

tribes from racially-motivated congressional action is truly

moving; however, LSI would remind the Court that Petitioner is

in no position to assert the rights of Indian tribes as a basis for

grant of the Petition, given that she is litigating against one.

13

exempt from suit without consent, and that the immunity

was “theirs as sovereigns”, as this Court did in United

States v. United States Fidelity & Guaranty Co., 309 U.S. 506,

512 (1940), simply confirms the inherent nature of tribal

sovereignty. The Tribe is entitled to all the benefits of its

sovereign status, including the “common-law immunity

from suit traditionally enjoyed by sovereign powers.”

Santa Clara Pueblo, 436 U.S. at 58 (internal cites omitted).

While tribal immunity from unconsented suit is not

created by congressional action, congressional action is

required to waive such immunity. U.S. F & G., at 514

(stating that the sovereign right of immunity from suit

could be waived only by congressional action). Congress

has not acted to waive the Shakopee Community or LSI’s

sovereign immunity from suit.

Petitioner’s argument is predicated on acceptance by

the Court of the proposition that sovereign immunity is

the result of a statute enacted by Congress. Because this

proposition is entirely false and patently misleading, and

because tribal sovereign immunity is an incident of inher-

ent tribal sovereignty, not the result of congressional

8 LSI would note that an Indian tribe may also waive its

immunity from unconsented suit. See Puyallup Tribe, Inc. v. Dept.

of Game, 433 U.S. 165 (1977) (Puyallup III) (holding that waiver of

sovereign immunity from suit must be unequivocally expressed

by Congress or the tribe); Oklahoma Tax Comm'n v. Potawatomi

Tribe, 498 U.S. 505 (1991) (finding that only tribe or Congress can

waive tribe’s sovereign immunity from suit). But, given that

Petitioner’s argument addresses only congressional action, and

that she has not asserted LSI waived its immunity from suit, LSI

refrains from further discussion regarding tribal waivers of

immunity.

14

action, Petitioner’s argument must fail. Given that it is

congressional inaction to which Petitioner truly objects,

and because without congressional action, there is noth-

ing to which this Court can apply strict scrutiny, Peti-

tioner’s argument should be rejected. The sand upon

which Petitioner has constructed the house of her argu-

ment has been washed away by the tide of sound judicial

precedent; that house has fallen. The Petition should be

denied.

IV. EVEN IF TRIBAL SOVEREIGN IMMUNITY WERE

NOTHING MORE THAN A FEDERAL AFFIRMA-

TIVE ACTION PROGRAM, THE SOUND REA-

SONING OF THIS COURT IN MORTON WOULD

CONTROL, AND DOES NOT CONFLICT WITH

ADARAND.

Even if the insupportable assumptions upon which

the Petition is based were true — that tribal sovereignty is

federally delegated, and that tribal sovereign immunity is

a federal affirmative action program —- this Court dis-

posed of Petitioner’s arguments twenty-three years ago,

in Morton. Specifically, the Court held that, as long as

federal preferences for Indians are reasonable and ratio-

nally designed to further Indian self-government, such

preferences will not violate the United States Constitu-

tion. 417 U.S. at 555.9

9 Even if Petitioner were to argue that adopting a

constitution under provisions of the Indian Reorganization Act,

25 U.S.C. § 476, constitutes federal action creating a race based

preference, such argument could not pass muster. “While the

exercise of powers under these constitutions was expressly

15

Petitioner argues that because sovereign immunity is

created by congressional action, it requires strict judicial

scrutiny, and that Morton is in conflict with Adarand

because Morton imposes only a rational-basis test, and

purportedly supports race-based preference. Notwith-

standing Petitioner’s treatment of tribal sovereign immu-

nity as a mere delegation of federal authority, this

argument is contrary to this Court’s precedent and most

every authority on the subject. As this Court recognized

in upholding the constitutional validity of Section 12 of

the Indian Reorganization Act, 25 U.S.C. § 476, et seq.,

“this preference does not constitute ‘racial discrimina-

tion.’ Indeed, it is not even a racial preference.” Morton,

417 U.S. at 553. As the Court noted:

The preference is not directed towards a “racial”

group consisting of “Indians”; instead, it applies

only to members of “federally recognized”

tribes. This operates to exclude many individ-

uals who are racially classified as “Indians”.

Id. at n. 24. In the present case, even if Petitioner could

substantiate that sovereign immunity exists by virtue of

congressional action (which Petitioner clearly cannot), the

“preference” of sovereign immunity would apply only to

federally recognized tribes. It would not apply to all

sanctioned by Congress, the tribes adopting them continue to

exercise their unextinguished powers of sovereignty and not

statutorily delegated powers. In Santa Clara Pueblo, 436 U.S. 49

(1978), for example, the tribe had adopted a constitution under

the Indian Reorganization Act, id. at 66 n.22, but the Court

spoke only of inherent, not delegated, tribal powers. Id. at

71-72.” F. Cohen, Handbook of Federal Indian Law 247-48 (1982

ed.).

16

groups of people who could identify themselves racially

as “Indians.”?°

“On numerous occasions this Court specifically has

upheld legislation that singles out Indians for particular

and special treatment.” Morton, at 554, citing, e.g., Board of

County Comm'rs v. Seber, 318 U.S. 705 (1943) (federally

10 The Petition exhibits a distractingly simple view of tribal

membership, and its bearing on the present issues. Petitioner

assumes, for example, that membership is universally based on

Indian blood quantum, a racial distinction. (Petition 10-11). But,

not all tribes require a specific quantum of “Indian” blood for

membership. See, e.g., Cherokee Intermarriage Cases, 203 U.S. 76,

83 (1906) (“The laws and uses of the Cherokees. . . show that

citizenship rested on blood or marriage.”); see also, American

Indian Policy Review Comm'n, 95th Cong., Ist Sess., Final

Report 108-09 (1977) (recognizing that certain tribes permit any

descendent of a tribal member to be enrolled regardless of blood

quantum, and that other tribes allow members to count Indian

blood from other tribes for their minimal requirements). One is

left wondering how Petitioner would explain a Cherokee with

blond hair and blue eyes or, for example, a black Seminole.

Furthermore, there are many people with a high degree of

Indian blood who are deprived of membership, simply because

they do not meet certain political criteria. The point is that tribal

membership, for tribal purposes, is strictly an intra-tribal

concern. Santa Clara Pueblo, 436 U.S. at 72 n.32 (“A tribes right to

define its own membership for tribal purposes has long been

recognized as central to its existence.”); see also, Cherokee

Intermarriage Cases at 95; Roff v. Burney, 168 U.S, 218, 222 (1897).

If there are any racial components to membership, they are

imposed by the tribes themselves, not the federal government.

Tribal membership, and the criteria imposed by the tribes, have

absolutely nothing to do with federal recognition, generally, or

the exercise of tribal sovereign immunity. After all, we are not

discussing individual Indian immunity derived from a federal

statute.

17

granted tax immunity); McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164 (1973) (same); Simmons v. Eagle

Seelatsee, 384 U.S. 209 (1966); affirming 244 F. Supp. 808

(E.D. Wash. 1965) (statutory definition of tribal member-

ship, with resulting interest in trust estate); Williams, 358

U.S. 217 (tribal courts and their jurisdiction over reserva-

tion affairs). Cf. Morton v. Ruiz, 415 U.S. 199 (1974) (fed-

eral welfare benefits for Indians “on or near”

reservation). Thus, even if sovereign immunity were

merely a “federal benefit,” it too would be “tied ratio-

nally to the fulfillment of Congress’ unique obligation

toward the Indians.” Morton at 555.11

Obviously, since Petitioner’s “sovereign immunity

preference,” even if it existed by virtue of federal law,

would be based on the unique political relationship

between tribes and the federal government, not racial

classifications, this Court’s decision in Adarand is not

implicated (notwithstanding the fact that the precise con-

tours of Adarand, a split opinion with no majority reason-

ing, remain unexplored even in the non-tribal context). In

't Such special treatment is particularly appropriate, for as

Justice Marshall wrote, “[t]he condition of the Indians in

relation to the United States is perhaps unlike that of any other

two people in existence.” Cherokee Nation, 30 U.S. at 22.

Congress is charged with regulating all commerce “with the

Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Furthermore, the

federal government owes a trust responsibility to the tribes,

which is based on the very relationship that Petitioner now

invokes to the Tribe’s detriment. See, e.g., United States v.

Kagama, 118 U.S. 375, 383-84 (1886); Morton, 417 U.S. at 555

(discussing “Congress’ unique obligation toward the Indians”).

“It is in this historical and legal context that the constitutional

validity of the Indian preference is to be determined.” Id. at 553.

18

sum, there is no conflict between Morton and Adarand for

three primary reasons. First, there is no federal statute

creating tribal sovereign immunity from suit; such immu-

nity exists as an incident of inherent tribal sovereignty.

Second, even if there were such a statute in issue, because

sovereign immunity is not available to individual

Indians, but only to Indian tribes as governments, it would

not fall within the ambit of conduct requiring strict judi-

cial scrutiny. Finally, there is no conflict between this

Court’s edict in Adarand and the holding in Morton, for

the sovereign immunity of Indian tribes would not be

based on race, but rather on the exercise of powers of

self-government. The purported conflict is nothing more

than a back-door attack on tribal sovereignty, and is

entirely without merit.

V. THE MINNESOTA SUPREME COURT’S ORDER,

RECOGNIZING THAT THE COURT DID NOT

HAVE SUBJECT MATTER JURISDICTION TO

ABROGATE THE TRIBE’S IMMUNITY, DID NOT

CONSTITUTE “STATE ACTION” FOR PURPOSES

OF EQUAL PROTECTION ANALYSIS.

The Equal Protection Clause of the United States

Constitution limits state action, it does not prompt state

action. See Sloan v. Lemon, 413 U.S. 825, 834 (1973) (“The

Equal Protection Clause has never been regarded as a

bludgeon with which to compel a State to violate other

provisions of the Constitution.”). If not for Petitioner’s

misdirected claim, the state courts, and thus the state,

would have had nothing to do with this dispute. LSI

never asked the courts to enforce its immunity through

any “affirmative act.” Compare Shelley v. Kraemer, 334 U.S.

1, 20 (1948).

19

In Shelley, the Court held that state judicial enforce-

ment of otherwise private restrictive covenants, which

explicitly discriminate against non-whites, is state action

for purposes of equal protection analysis. 334 U.S. at 20.

The distinctions between Shelley and the present case are

obvious. The Court made it clear that it was the active

judicial enforcement of the restrictive covenants that vio-

lated equal protection. Id. at 19 (“[B]ut for the active

intervention of the state courts . . . petitioners would have

been free to occupy the properties in question without

restraint.”). The Court noted that “these are not cases in

which the States have merely abstained from action... ,

leaving private individuals free to impose such discrimi-

nations. . . . Rather, these are cases in which the States

have made available to such individuals the full coercive

power of government... . ” Id.

The present case, by contrast, is one in which the

state has “merely abstained from action.” The Minnesota

Supreme Court recognized that state courts did not have

jurisdiction to entertain Petitioner’s suit. See Order of the

Minnesota Supreme Court (Petition A-1, affirming appel-

late Court’s affirmance of trial court’s dismissal). The

“full coercive power of government” was never invoked.

While LSI would have preferred that the state courts were

not involved at all (even to determine their lack of juris-

diction), it is Petitioner that asked the courts to assert their

“coercive” power by abrogating the Tribe’s immunity. That

is not within any court’s domain. See Santa Clara Pueblo,

436 U.S. at 58 (recognizing that “ ‘without congressional

authorization,’ the ‘Indian Nations are exempt from

suit’ ”) (emphasis added).

20

CONCLUSION

“The Court has consistently recognized that Indian

tribes retain ‘attributes of sovereignty over both their

members and their territory.” Cabazon Band of Mission

Indians, 480 U.S. at 207 (emphasis added), quoting

Mazurie, 419 U.S. at 557. The Court has also consistently

held that Congress must be explicit in its intent to divest

Indian tribes of their inherent sovereign authority. See,

e.g., Mattz v. Arnett, 412 U.S. 481, 504-05 (1973); Bryan, 426

U.S. at 392-93. Specifically, when Congress seeks to divest

tribes of their inherent sovereign immunity from uncon-

sented suit, it must do so expressly and without equivo-

cation. Santa Clara Pueblo, 436 U.S. at 58. Petitioner has

not even attempted to show that Congress has divested

the Tribe, and thus LSI, of its inherent immunity from suit

in the present case.

Rather, Petitioner’s claims (and the equally mis-

guided dissenting Minnesota Court of Appeals opinion

that appears to have spawned them) rest on the assump-

tion that tribal sovereignty has been completely divested

by fiat and circumstance. Thus, according to Petitioner,

every exercise of self-government is nothing more than an

exercise of delegated federal authority. Attempts to

undermine tribal sovereignty have persisted throughout

this Nation’s history. It seems apparent, though, that as a

few tribes begin to improve their circumstances and actu-

ally succeed at self-governance, those attempts are becom-

ing more creative and deleterious than ever.

The flaws in Petitioner’s arguments are numerous

and self-evident. In sum, neither Morton nor Adarand

apply to the present facts. Even if tribal sovereignty were

21

nothing more than a federal affirmative action program,

however, the Court’s sound reasoning in Morton would

control. Furthermore, a state court can abstain from abro-

gating tribal sovereignty without implicating an entirely

separate equal protection analysis. And finally, there is no

conflict among the courts, as the issues presented by the

Petition have never before been raised and addressed,

even in the courts below. The law is clear, and the Petition

should be denied.

July 9, 1997

Respectfully submitted,

STEVEN F. OLSON,

Counsel of Record

BLuEDoc, OLsSon & SMALL, P.L.L.P.

Southgate Office Plaza, Suite 500

5001 West 80th Street

Minneapolis, Minnesota 55437

Telephone (612) 893-1813

Attorney for Respondent

App. 1

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT

(Filed Mar. 31, 1995) Case Type: Personal Injury

Sylvia Cohen, File No. C-95-01701

Plaintiff, ORDER AND JUDGMENT

Vs.

Little Six, Inc., d/b/a

Mystic Lake Casino,

Defendant.

The above-entitled matter came on for hearing before

the Honorable Michael A. Young, Judge of District Court,

on the 29th day of March, 1995, at the Scott County

Courthouse, Shakopee, Minnesota. The matter was before

the Court on Defendant’s motion to dismiss the com-

plaint for lack of jurisdiction.

Plaintiff was represented by Clinton Collins, Jr.,

Attorney at Law, of Collins & Associates, P.A., Suite

2500F, Foshay Tower, 821 Marquette Avenue, Min-

neapolis, MN 55402. Defendant was represented by Jos-

eph Plummer, Attorney at Law, of McDonough, Wagner

& Sherry, P.A., 14501 Granada Drive, Suite 200, Apple

Valley, Minnesota 55124.

Based upon the files, records, arguments of counsel,

and all the proceedings herein, the Court makes the fol-

lowing:

App. 2

ORDER

1. That Defendant’s motion to dismiss the com-

plaint pursuant to Minn. R. Civ. P. 12.02(a) is granted.

Defendant is immune from liability pursuant to the doc-

trine of sovereign immunity and therefore Plaintiff’s law-

suit is dismissed with prejudice.

2. That the attached memorandum is hereby incor-

porated by reference.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: March 31, 1995.

BY THE COURT:

/s/ Michael A. Young

Michael A. Young

Judge of District Court

JUDGMENT

I hereby certify that the above Order shall constitute

the Judgment of this Court.

Dated: March 31, 1995. Court Administrator

By: /s/ Margaret A. Born

Deputy

App. 3

MEMORANDUM

Sylvia Cohen, Plaintiff, alleges that on October 7,

1994, at approximately 4:30 p.m., she was at the Mystic

Lake Casino in Prior Lake. While at the Casino she -

attempted to sit down on a stool in front of one of the slot

machines. As she did so it swiveled from underneath her

and she fell to the floor. As a result of the fall the Plaintiff

was injured ‘and required hospitalization and medical

care. On February 13, 1995, Plaintiff filed suit against

Defendant alleging that Defendant was negligent in uti-

lizing swivel seating that snaps back. Defendant now

asks the Court to dismiss the complaint pursuant to

Minn. R. Civ. P. 12.02(a) subject matter jurisdiction,

12.02(b) personal jurisdiction and 12.02(c) failure to state

a claim, on the grounds that the suit is barred by the

doctrine of sovereign immunity.

Defendant’s motion asks that the case be dismissed

for lack of subject matter jurisdiction. Subject matter

jurisdiction refers to the limitations on the courts author-

ity to hear certain matters. These limitations are placed

on a court by statute and the constitution. Jurisdiction of

the subject matter is an absolute prerequisite for the

continuation of an action and, absent it, the court must

dismiss the action. Morison v. Morison, 408 F.Supp. 315

(D.C.Tex. 1976).

Minn. R. Civ. Proc. 12.02(a) permits a party to raise

subject matter jurisdiction as a defense to a suit. The issue

of sovereign immunity is a jurisdictional issue and must

be resolved without reaching the merits of the case. State

Board of Medical Examiners v. Olson, 206 N.W.2d 12 (Minn.

1973); Pan Am Co. v. Sycuan Band of Mission Indians, 884

App. 4

F.2d 416 (9th Cir. 1989). Therefore, Plaintiff's argument

that the matter cannot be dismissed because an issue of

material fact remains incorrectly uses the summary judg-

ment standard.

The fact that matters outside the pleadings have been

considered in making the jurisdictional determination did

not convert this into a summary judgment motion. See,

e.g. Osborne v. United States, 918 F.2d 724, 729 (8th Cir.

1990) (disputed issues of material fact will not prevent

the trial court from deciding for itself merits of jurisdic-

tional claims). The court will accordingly consider mate-

rial outside the pleadings to the extent necessary to

determine subject matter jurisdiction. Dou Yee Enterprises

PTE, Ltd. v. Advantek, Inc., 149 F.R.D. 185, 187 (D. Minn.

1993).

Matters outside the pleadings submitted to the Court

include portions of the Shakopee Mdewakanton Sioux

Community’s Corporate Ordinances, Articles of Incor-

poration of Little Six, Inc., copies of six decisions on the

same issue by Scott County District Court Judges Menke,

Howe, Fitzgerald, Young, and Atkins, the tribal-state

compact on class III blackjack, the tribal-state compact on

class III video games, and a copy of 25 U.S.C.A. §§ 2701 -

2721.

Defendant corporation is owned by the Shakopee

Mdewakanton Sioux Community (Community). The

Community is a federally recognized Indian tribe operat-

ing under a constitution approved by the Secretary of the

Interior and pursuant to the Indian Reorganization Act of

App. 5

1934. 25 U.S.C. § 476. The casino where the alleged negli-

gence occurred is located on land held in trust for the

Community by the United States.

Public Law 280 (28 U.S.C. 1360(a)) provides that

states “shall have jurisdiction over civil causes of action

between Indians or to which Indians are parties which

arise in the areas of Indian country listed opposite the

name of the State to the same extent that such state has

jurisdiction over other civil causes of action, * * * ” Those

Indian countries included within Minnesota are “(a)ll

Indian country within the State, except the Red Lake

Reservation.” Id. Therefore the Shakopee Community is

subject to the jurisdiction of the Court. However, this

does not mean that the Defendant is precluded from

raising the defense of sovereign immunity.

Public Law 280 has been interpreted as not granting

to the state courts full power to adjudicate disputes

involving Indian tribes.

In Concluding that Public Law 280 did not sub-

ordinate tribal government to the “full panoply

of civil regulatory power” of state governments,

the U.S. Supreme Court likewise stated “[t]he

Act itself refutes such an inference; there is

notably absent any conferral of state jurisdiction

over the tribes themselves * * * . [I)f Congress in

enacting Public Law 280 had intended to confer

upon the States general civil regulatory powers

* * * it would have expressly said so.

Tibbetts v. Leech Lake Reservation Business Committee, 379

N.W.2d 883, 887 (Minn. 1986) citing Bryan v. Itasca County,

426 U.S. 373, 388-89, 390, 96 S.Ct. 2102, 2111-12, 48

L.Ed.2d 710, __ (1976).

App. 6

A long line of cases limits the power of state courts

over a suit brought against a federally recognized Indian

tribe. These cases recognize Indian tribes as sovereigns

with the inherent authority to protect their sovereignty.

“Indian tribes have long been recognized as possessing

the common-law immunity from suit traditionally

enjoyed by sovereign powers.” Santa Clara Pueblo v. Mar-

tinez, 436 U.S. 49, 58 (1978). “Suits against Indian tribes

are thus barred by sovereign immunity absent a clear

waiver by the tribe or congressional abrogation.” Okla-

homa Tax Commission v. Potawatomi Tribe, 112 L.Ed.2d

1112, 1119 (1991). The Shakopee Mdewakanton Commu-

nity, as a federally recognized tribe, has the right to

exercise the power of sovereign immunity.

This immunity extends to corporations or other enti-

ties owned by the tribe, unless waived. Namekagon Devel-

opment Co., Inc. v. Bois Forte Reservation Housing Authority,

395 F. Supp. 23 (D. Minn. 1974), aff'd, 517 F.2d 508 (8th

Cir. 1975). A review of the documents submitted by the

Community shows that no general waiver by the Com-

munity has been given. The Articles of Incorporation of

Little Six, Inc., dated March 18, 1991, provides in Article

3.1 that:

The Shakopee Mdewakanton Sioux Community

confers on the Corporation all the Community’s

rights, privileges and immunities concern-

ing * * * sovereign immunity from suit, to the

same extent that the Community would have

such rights, privileges and immunities, if it —

engaged in the activities undertaken by the Cor-

poration ** * ”

App. 7

Article 3.2 provides:

The Corporation shall have the power to sue

and is authorized to consent to be sued in the

Judicial Court of the Shakopee Mdewakanton

Community or another court of competent juris-

Giction * * *

The Community has specifically retained sovereign

immunity on behalf of the corporation. In order for Plain-

tiff to maintain her suit it would be necessary for the

Community to waive this immunity. This the Community

has specifically refused to do as shown in their Articles of

Incorporation, and by its actions in contesting this suit.

Furthermore, the actions of the Community in operating

the casino and inviting the public onto its land cannot

imply a waiver. Any waiver must be “unequivocally

expressed” and not implied. See Santa Clara Pueblo, 436

U.S. at 58.

Plaintiff, relying on McCarthy & Assoc. v. Jackpot Junc-

tion, 490 N.W.2d 156 (Minn. App. 1992), argues that

Defendant has waived its sovereign immunity by the

Community’s inclusion of a “sue and be sued” clause in

its tribal corporate charter. In McCarthy the exact lan-

guage used by the Lower Sioux Reservation in its corpo-

rate charter was “(t)he Community * * * shall have the

following corporate powers * * * (i) To sue and be sued in

the courts of competent jurisdiction within the United

States.” Id. at 158. This provision is similar to Article 3.2

of the Mdewakanton Community’s corporate charter, but

it is not identical. The difference however is significant. It

states “The corporation shall have the power to sue and is

authorized to consent to be sued ***.

“fr

Any waiver

expressed in the Shakopee provision is contingent on

App. 8

authorization and is, therefore, not an express waiver but

only a provision by which the Community can grant a

waiver. This is significantly different from the language

used in McCarthy, which expressly states the Lower Sioux

tribe can be sued. Clearly the Mdewakanton grant of

corporate power is not the waiver of sovereign immunity

alleged by the Plaintiff. The Mdewakanton Community

only authorized its corporate board to consent to be sued.

Without this authorization the Community retains its sov-

ereign immunity.

Plaintiff also argues that under the Indian Gaming

Regulatory Act (IGRA), 25 U.S.C. §§2701 - 2721, the Com-

munity and the State entered into a tribal-state compact

in which the Community agreed to “conduct (the opera-

tion) in a manner which adequately protects the environ-

ment and the public health and safety.” Therefore,

Plaintiff concludes that since the Community engages in

gaming pursuant to the IGRA, that the Defendant has

expressly waived its immunity.

The Community and the State of Minnesota did enter

into two pacts. One for the control of Class III video

games of chance was executed on October 20, 1989, and

the other for the control of class III blackjack was exe-

cuted on June 12, 1991. The IGRA and the compacts do

permit for state inspection and control of gaming activ-

ities on tribal land. However, the Court disagrees with

Plaintiff’s broad interpretation of the IGRA. Nowhere in

the Act does it grant state courts jurisdiction over per-

sonal injury actions allegedly caused by violations of the

IGRA. The remedies available through the Act are civil

fines, temporary closure and permanent closure of the

App. 9

facility. 25 U.S.C. 2713. There are no provisions for recov-

ery of personal injury damages in a private cause of

action. This conclusion is consistent with the decision in

Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738, 745

(D.S.D. 1992), where the Court held that while the IGRA

gives the court authority to enforce the Act, sovereign

immunity protects the tribe from monetary damages. The

IGRA does not waive the Community’s sovereign immu-

nity with regard to this suit for damages.

Plaintiff asserts that allowing the Community to use

the defense of sovereign immunity violates her constitu-

tional right to due process of the law. She argues that

dismissal will deprive her of her “day in court.” This may

be true. However, Plaintiff’s assertion that she has been

deprived of her constitutional right to due process is

fundamentally flawed. The federal and state due process

guarantees are designed to protect the people from state

action. If there is no state action then there can be no due

process violation. The due process clause does not protect

citizens from actions by private citizens. Adickes v. Kress &

Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (the

Fourteenth Amendment erects no shield against merely

private conduct, however discriminatory or wrongful).

This analysis is applicable to Indian tribes.

Indian tribes are considered private citizens for pur-

poses of the Fourteenth Amendment. The action by the

Defendant in exercising its sovereign immunity is not

state action. In Twin Cities Chippewa Tribal Council v. Min-

nesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967), the

plaintiffs alleged that certain statutes, rules and regula-

tions were not followed in an election. One of the plain-

tiff’s arguments was that dismissal based on sovereign

Wie. (ae ee ee

App. 10

immunity deprived them of due process of law. The

Eighth Circuit Court of Appeals rejected this argument on

the basis of lack of state action.

This argument ignores one of the most basic

tenets of American Constitutional law. The guar-

antees of the Due Process Clause relate solely to

action by a state government, and have no

application to actions of Indian tribes, acting as

such.

Id. at 533, (citations omitted). Plaintiff’s suit is directed

against the Mdewakanton Community and there has been

no showing of any state action. Therefore, Plaintiff is

entitled to no relief under the Fourteenth Amendment.

Unfortunate as it maybe, Plaintiff cannot sue the

Defendant without its permission. Since permission has

not been given and no waiver is present, Plaintiff’s suit is

barred by the doctrine of sovereign immunity. It is not

within the power of this Court to modify this reality, even

for a sympathetic victim. Congress granted Indian tribes

immunity, and only Congress can waive or modify the

immunity.

Because the sovereign immunity defense disposes of

this matter, the Court did not address Defendant's per-

sonal jurisdiction or failure to state a claim defenses.

M.A.Y.

App. 11

STATE OF MINNESOTA DISTRICT COURT

FIRST JUDICIAL

COUNTY OF SCOTT DISTRICT

Sylvia Cohen, NOTICE OF APPEAL

ne TO

ee COURT OF APPEALS

— Trial Court Case No.

Little Six, Inc. d/b/a 95-01701

Mystic Lake Casino, Date of Order:

Defendant{[s]. March 31, 1995

To: Clerk of the Appellate Courts

Mr. Frederick K. Grittner

305 Judicial Center

25 Constitution Avenue

St. Paul, MN 55155

Please take notice that the above-named plaintiff

appeals to the Court of Appeals of the State of Minnesota

from an order of the court entered on the date shown,

granting defendant’s motion to dismiss.

Dated: April 28, 1995

Joseph Plumer

McDonough, Wagner & Sherry, P.A.

Attorney For Defendant Little Six, Inc.

14501 Granada Drive, Suite 200

Apple Valley, MN 55124

Telephone: (612) 431-1222

App. 12

Clinton Collins, Jr.

Clinton Collins & Associates, P.A.

Attorney For Plaintiff Sylvia Cohen

Suite 2500F, Foshay Tower

821 Marquette Avenue South

Minneapolis, MN 55402

Telephone: (612) 373-0991

/s/ Clinton Collins, Jr.

STATE OF MINNESOTA

IN COURT OF APPEALS

App. 13

Sylvia Cohen,

Plaintiff,

vs.

Little Six, Inc. d/b/a

Mystic Lake Casino,

Defendant(s].

STATEMENT OF THE

CASE OF APPELLANT

Trial Court Case No.

95-01701

Date of Order:

March 31, 1995

1. This case originated in Scott County District Court,

the Honorable Michael A. Young presiding.

2. This appeal is from an Order, entered on March 31,

1995. However, Defendant/Respondent failed to pro-

vide written notice of the Order. Appellant appeals

from the Scott County District Court Order pursuant

to Minn R. Civ. App. P. 103.03(e).

W

4. Appellant alleges that Respondent, a Federally recog-

nized Indian Tribal Corporation, had a duty of care to

maintain, inspect, oversee and operate its premises,

and was negligent in providing a safe gaming facility.

As a result, Appellant fell on Respondent's premises,

and as a direct and proximate result of Respondent's

negligent maintenance of its premises, sustained

severe and very likely permanent injuries.

Appellant asserts sovereign immunity from suit.

The Honorable Michael A. Young granted Appellant's

Motion to Dismiss, in that sovereign immunity bars

suit against Defendant.

This Appeal stems from litigation based in Tort.

™

o @

App. 14

The issues raised on appeal will include the follow-

ing: (1) Whether Congress’ codification of the Indian

Gaming Regulatory Act, coupled with the Tribal-State

Compacts between the Shakopee Mdewakanton

Dakota Sioux Community and the Certificate of

Authority to Transact Business in the State of Minne-

sota under Minn. Stat. § 303.01, acts as a clear waiver

of sovereign immunity, with respect to requirements

of the Indian Gaming Regulatory Act, specifically, the

Respondent's duty to construct, operate and maintain

it’s facility to insure the public health and safety; and

(2) Whether sovereign immunity in this suit violates

Appellant’s guarantees of substantive due process

under the United States Constitution.

A full transcript from the District Court is required.

Oral argument is requested.

Formal briefs are necessary.

Joseph Plumer

McDonough, Wagner & Sherry, P.A.

Attorney for Respondent little Six, Inc.

14501 Granada Drive, Suite 200

Apple Valley, MN 55124

(612) 431-1222

Clinton Collins, Jr.

Clinton Collins & Associates, P.A.

Attorney for Appellant Sylvia Cohen

Suite 2500F, Foshay Tower

821 Marquette Avenue South

Minneapolis, MN 55402

(612) 373-0991

DATED: April 28, 1995

App. 15

Clinton Collins & Associates, P.A.

/s/ Clinton Collins, Jr.

Clinton Collins, Jr., ID# 192685

Attorney for Appellant Sylvia Cohen

Suite 2500F, Foshay Tower

821 Marquette Avenue South

Minneapolis, MN 55402

(612) 373-0991

App. 16

Appellate Case No.: C6-95-928

STATE OF MINNESOTA

IN SUPREME COURT

Sylvia Cohen, §

Plaintiff § PETITION FOR

§ REHEARING

Petitioner. §

y. § APPELLATE COURT

§ CASE No::

Little Six, Inc., d/b/a § C6-95-928

Mystic Lake Casino, §

Defendant, :

Respondent. :

Clinton Collins, Jr. Steven F. Olson

Attorney I.D. No. 192685 Attorney I.D. No. 230856

CLINTON COLLINS & Janet Erickson

ASSOCIATES, P.A. Attorney I.D. No. 257710

821 Marquette Avenue,

Suite 2500F

Minneapolis, MN 55402

(612) 373-0991

and

Gregory A. Abbott

Attorney I.D. No. 209491

ABBOTT & BARUCH, LTD.

Offices at Centre Village

BLUEDOG, OLSON

& SMALL, P.L.L.P.

5001 West 80th Street,

Suite 670

Minneapolis, MN 55437

(612) 893-1813

431 So. Seventh Street, Suite 2424

Minneapolis, MN 55415

(612) 399-0272

Attorneys for Petitioner

Attorneys for Respondent

App. 17

Pursuant to Rule 140.01(c), Minnesota Rules of Civil

Appellate Procedure, Petitioner Sylvia Cohen (“the Peti-

tioner”) respectfully moves this court for rehearing and

argument, because the Court has failed to consider or

overlooked material questions in the case.

This Court, by Order dated January 21, 1997, sum-

marily dismissed Petitioner’s appeal on grounds that its

decision in Gavle v. Little Six, Inc., d/b/a Mystic Lake Casino,

555 N.W.2d 284 (Minn. 1996), was controlling. However,

in this appeal the Court granted review on material issues

which were not resolved in Gavle.

In the interests of justice Petitioner’s Motion for

Rehearing should be granted, and issues omitted and

overlooked by this Court should be fully briefed and

argued.

ARGUMENT

A simple syllogism demonstrates that this Court has

overlooked and/or failed to consider Petitioner’s consti-

tutional issues, within the meaning of Rule 140.01(c):

e This Court granted review of Petitioner’s

constitutional claims;

e This Court dismissed Petitioner’s appeal on

grounds that Gavle is controlling;

e Gavle does not address Petitioner’s constitu-

tional claims;

e Therefore, Petitioner’s constitutional claims

have been overlooked or omitted.

App. 18

I. GAVLE DOES NOT CONTROL OR ADDRESS PETI-

TIONER’S CONSTITUTIONAL CLAIMS

This Court’s decision in Gavle did not address or

resolve three constitutional issues Petitioner raised in her

Petition for Review. The constitutional issues raised by

Petitioner are as follows:

(1) Does tribal sovereign immunity violate the

Due Process and Equal Protection clauses

of the Fourteenth Amendment to U.S. Con-

stitution;

(2) Are Petitioner’s Due Process rights violated

by requiring her to proceed in procedurally

and constitutionally deficient tribal courts;

(3) Whether the rule established in Shelley v.

Kraemer, 334 U.S. 1, bars courts from enforc-

ing racially discriminatory covenants in

corporate charters granted by Indian tribes.

See Petition for Review, at 1. Gavle, by contrast, did not

even purport to consider constitutional questions. The

Gavle opinion addressed only the following issues:

(1) whether Minnesota state courts have juris-

diction to consider the defense of Indian

tribal sovereign immunity (holding that

jurisdiction does exist); see Gavle, at 292;

(2) whether Little Six, Inc., (“LSI”) a corpora-

tion formed by an Indian tribe, is entitled

to assert the tribe’s sovereign immunity as

a defense (holding that LSI is entitled to

assert sovereign immunity); Id., at 296;

(3) whether LSI had waived its defense of sov-

ereign immunity (holding that LSI had not

waived sovereign immunity); Id., at 297-98.

App. 19

Petitioner concedes that Gavle controls and disposes of

the three non-constitutional grounds for review cited in

her petition. See Petition for Review, Issues 1(d), 1(e), and

1(f), at 1-2. However, there is nothing in Gavle, not even

obiter dicta, which address her constitutional claims. Id., at

1 (Issues l(a), 1(b), and 1(c)).

II. PETITIONER’S CONSTITUTIONAL CLAIMS

WERE PROPERLY BEFORE THE COURT

This Court’s own prior acts preserved Petitioner’s

constitutional issues for review. Respondent moved to

strike the constitutional claims asserted by Petitioner

after service of the Petition for Review, see Respondent's

Motion to Strike, dated April 1, 1996, at 1. The ground for

the Motion to Strike was the incorrect claim that the

constitutional claims had not been properly asserted in

the courts. Petitioner filed a vigorous Response to the

Motion to Strike on April 9, 1996. By Order of April 12,

1996, this Court denied the Motion to Strike, and granted

review of the decision of the Court of Appeals.

In that Order, review was granted of all issues raised

by Petitioner. See Order, dated April 12, 1996. Had the

Court believed that the constitutional claims were not

proper on appeal, it could have (and should have)

granted review only for the non-constitutional issues,

now resolved by Gavle. Denial of Respondent’s Motion to

App. 20

Strike, while granting review of all issues raised by Peti-

tioner, shows unequivocally that Petitioner’s constitu-

tional claims were squarely before the Court.!

Iii. CONCLUSION

Deciding this case on the basis of Gavle is a funda-

mental error. The Gavle opinion is limited to non-constitu-

tional questions of jurisdiction, the ability of a corporate

defendant to assert sovereign immunity, and waiver.

Unlike the petitioner in Gavle, the petitioner in this case

has raised and pursued constitutional challenges to the

exercise of tribal sovereign immunity. These are impor-

tant questions which deserve the full consideration of this

Court.

Petitioner Sylvia Cohen thus respectfully requests

that this Court grant her Motion for Rehearing, and fully

consider the constitutional claims which have been over-

looked or omitted.

Dated: January 30, 1997.

1 The parties fully contested the validity of appealing on

constitutional grounds in connection with Respondent’s Motion

to Strike, and Petitioner will not needlessly repeat these

arguments herein. However, res judicata would bar Respondent

from raising this issue again, on the ground that the Court

decided the issue in its denial of Respondent’s Motion to Strike

and by accepting review of all issues raised by Petitioner

without qualification.

App. 21

CLINTON COLLINS & ASSOCIATES, P.A.

By: /s/ Clinton Collins (by Ga)

Clinton C. Collins, Jr.

Atty Reg. #192685

Suite 2500F, Foshay Tower

821 Marquette Avenue South

Minneapolis, Minnesota 55402

(612) 373-0991

-and-

ABBOTT & BARUCH, LTD.

By: /s/ Gregory Abbott

Gregory A. Abbott

Atty Reg. #209491

2424 Centre Village

431 South Seventh Street

Minneapolis, Minnesota 55415

(612) 399-0272

Attorneys for Petitioner Sylvia Cohen

App. 22

STATE OF MINNESOTA

IN SUPREME COURT

Sylvia Cohen,

Plaintiff,

Petitioner.

v.

Little Six, Inc., d/b/a

Mystic Lake Casino,

Defendant,

Respondent.

MMMM MDMMmMmmm wm

Clinton Collins, Jr.

Attorney I.D. No. 192685

CLINTON COLLINS &

ASSOCIATES, P.A.

821 Marquette Avenue,

Suite 2500F

Minneapolis, MN 55402

(612) 373-0991

and

Gregory A. Abbott

Attorney I.D. No. 209491

ABBOTT & BARUCH, LTD.

Offices at Centre Village

431 So. Seventh Street,

Suite 2424

Minneapolis, MN 55415

(612) 333-6691

Attorneys for Petitioner

PETITION FOR REVIEW

OF DECISION OF

COURT OF APPEALS

APPELLATE COURT

CASE NUMBER:

C6-95-928

Date of Filing of Decision

by Court of Appeals:

FEBRUARY 13, 1996

Steven F. Olson

Attorney I.D. No. 230856

BLUEDOG, OLSON &

SMALL, P.L.L.P.

5001 West 80th Street,

Suite 670

Minneapolis, MN 55437

(612) 893-1813

and

Joseph Plumer

Attorney I.D. No. 164589

McDONOUGH, WAGNER

& SHERRY, P.A.

14501 Granada Drive,

Suite 200

Apple Valley, MN 55124

(612) 431-1222

Attorneys for Respondent

App. 23

TO: The Supreme Court of the State Minnesota

Petitioner Sylvia Cohen (“Petitioner”) requests

Supreme Court review of the above-entitled decision of

the Court of Appeals upon the following grounds:

1. Statement of Legal Issues and Resolution by the

Court of Appeals

(a) Whether sovereign immunity for Indian tribes is

a legal fiction which should be discarded

because it constitutes racial discrimination in

violation of the Due Process and Equal Protec-

tion clauses of the Fourteenth Amendment?

The Court of Appeals rejected Petitioner’s constitu-

tional objections, allowing Respondent to deny legal lia-

bility on the grounds of sovereign immunity. Opinion at

4; App. “A.” But cf. Opinion at D-2 to D-28, and D-60 to

D-64, App. “A” (Randall, J., dissenting)

(b) Whether Petitioner’s Due Process rights were

violated by limiting her judicial remedies to

tribal “courts” lacking procedural or constitu-

tional safeguards?

The Court of Appeals found no due process violation

in requiring Petitioner to litigate her claims in tribal

court. Opinion at 11, App. “A.” But cf. Opinion at D-28 to

D-40, App. “A” (Randall, J., dissenting).

App. 24

(c) Whether the Fourteenth Amendment, as inter-

preted by Shelley v. Kraemer, 334 U.S. 1 (1948),

bars courts from enforcing racially discrimina-

tory provisions in the Articles of Incorporation

granted by an Indian tribe to a corporation?

The Court of Appeals presumably found no Four-

teenth Amendment violation in judicial enforcement of

racial discrimination, as it failed to address this issue

raised by Petitioner.

(d) Whether Minnesota courts have jurisdiction

over civil tort claims against Indian corpora-

tions arising on Indian reservations?

The Court of Appeals held it had no subject matter

jurisdiction over Petitioner’s claims. Opinion at 9-11,

App. “A.” But cf. Opinion at D-3 to D-4, App. “A” (Ran-

dall, J., dissenting).

(e) Is an Indian corporation entitled to assert the

defense of sovereign immunity?

The Court of Appeals held Respondent, a corporation

chartered by the Shakopee Mdewakanton Sioux Commu-

nity of Minnesota (“the Tribe”), was entitled to assert the

Tribe’s defense of sovereign immunity. Opinion at 6, App.

a

App. 25

(f) Has Respondent waived the defense of sovereign

immunity?

The Court of Appeals held that Respondent had not

waived the defense of sovereign immunity. Opinion at

6-8, App. “A.”

2. Criteria and Reasons Supporting the Petition for

Review

Pursuant to Rule 117, Minn. R. Civ. App. P., the follow-

ing criteria and reasoning support this petition for discre-

tionary review:

(1) the questions presented are important and are

issues which the Supreme Court should review. The use

of sovereign immunity as a defense by Indian gambling

corporations raise vital questions of constitutional law,

jurisdiction, and fundamental fairness;

(2) the severe injustice done to Petitioner requires

correction by the Supreme Court;

(3) a decision by the Supreme Court will harmonize

and stabilize the law in light of the erroneous decision

made by the Court of Appeals; and

(4) the questions presented have a statewide

impact, and are likely to recur.

3. Statement of the Case

In October 1994, Petitioner Sylvia Cohen, 83 years

old, went to Mystic Lake Casino. While there she suffered

severe and permanent injuries. She filed a personal injury

App. 26

lawsuit in Scott County District Court on February 7,

1995, against Respondent, the owner and operator of the

casino. On March 31, 1995, the Scott County District

Court granted Respondent’s motion to dismiss pursuant

to Rule 12, Minn. R. Cry. P., on grounds of sovereign

immunity.

On February 13, 1996, the Court of Appeals affirmed

the dismissal of Petitioner’s complaint by the Scott

County District Court.

4. Argument

Numerous errors in the opinion of the Court of

Appeals require review and correction by the Minnesota

Supreme Court. These errors are as follows:

A. SOVEREIGN IMMUNITY FOR INDIAN TRIBES

VIOLATES THE DUE PROCESS AND EQUAL

PROTECTION CLAUSES OF THE UNITED

STATES CONSTITUTION

Indian sovereign immunity is on its face an invalid

racial preference which, as applied by the Court of

Appeals, denies Petitioner due process of law. See Opin-

ion at D-60 to D-64 (Randall, J., dissenting). Congress, by

statute, has plenary power regarding the scope of sover-

eign immunity for Indian tribes. Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58 (1978). However, all federal

racial preferences must be analyzed under “strict scru-

tiny” to see if they serve a “compelling governmental

interest” and they must be “narrowly tailored” to serve

App. 27

that interest. Adarand Constructors, Inc. v. Pena, Baie, bY

__ 115 S. Ct. 2097, 63 U.S.L.W. 4523, 4533 (1995).

Indian sovereign immunity fails to meet the Adarand

test. The increasing prosperity of Indian tribes as a result

of gambling eliminates any compelling governmental

interest in protecting tribal assets. Additionally, the broad

limitation on liability resulting from sovereign immunity

is certainly not “narrowly tailored” to meet a compelling

governmental interest.

Further, Petitioner’s due process has been violated

because Indian sovereign immunity deprives her the

guarantee of a remedy at law. Nothing prevents Respon-

dent from asserting the defense of sovereign immunity

in its own tribal courts. Thus, unless Petitioner has a

remedy in Minnesota courts, she has no remedy at all.

Lastly, Indian sovereign immunity is an anachronistic

doctrine which no longer deserves the respect of law,

because it is an inherent violation of Petitioner’s due

process rights. See Opinion at D-44 (Randiall, J., dissent-

ing). Compare Lambert v. Ryozik, 268 Mont. 219, 886 P.2d

378 (1994) (refusal to hear case arising an Indian land

violated plaintiff's due process rights)

The Court of Appeals’ failure to give any weight to

the Due Process and Equal Protection clauses of the

United States Constitution requires review so that this

error may be corrected.

App. 28

B. TRIBAL COURTS ARE NOT A CONSITI-

TIONALLY ACCEPTABLE ALTERNATIVE TO

JUDICIAL PROCEEDINGS IN STATE DISTRICT

COURT

There is no independent constitutional basis for the

Tribe’s tribal courts. See Constitution of the Tribe, App.

“B.” Because tribal courts lack constitutional status, their

decisions can be ignored or overturned at whim by the

Tribal Council. There is nothing in the record indicating

that tribal judges possess acceptable legal training or

expertise.

The Court of Appeals therefore committed reversible

error when it forced Petitioner to pursue her claims in

tribal court, denying her due process of law. See Opinion

at D-28 to D-40 (Randall, J., dissenting).

C. THE FOURTEENTH AMENDMENT BARS JUDI-

CIAL ENFORCEMENT OF DEFENDANT'S

CORPORATE CHARTER ALLOWING IT TO USE

SOVEREIGN IMMUNITY AS A DEFENSE

AGAINST NON-INDIANS

By virtue of its Articles of Incorporation, Respondent

is absolutely immune from suit against a certain class of

persons, a class defined solely by its racial composition.

See Constitution of the Tribe, art. II, App. “B” (member-

ship in the Tribe defined by race); and Respondent's

Restated Articles of Incorporation § 3.1, App. “C” (sover-

eign immunity applies only to non-members of the Tribe).

The decision of the Court of Appeals thus constitutes

state action ratifying and validating racial discrimination,

App. 29

and as such violates the provisions of the Fourteenth

Amendment. See Shelley v. Kraemer, 334 U.S. 1 (1948).

D. MINNESOTA COURTS HAVE JURISDICTION

See Public Law 280, 28 U.S.C. § 1360 (1988); Williams

v. Lee, 358 U.S. 217, 220 (1959). See also Lambert, supra. The

Court of Appeals’ contrary holding is clear error.

E. LITTLE SIX IS NOT ENTITLED TO ASSERT THE

DEFENSE OF SOVEREIGN IMMUNITY

As a corporate entity, Respondent is not entitled to

assert the Tribe’s sovereign immunity or absence of juris-

diction as a defense to Petitioner’s claim. See Gavle v.

Little Six, Inc., 534 N.W.2d 280, 284-85 (Minn. App. 1995),

review granted (Sept. 28, 1995).

The Court of Appeals’ decision to allow a non-

governmental entity to assert the defense of sovereign

immunity is reversible error and requires correction by

the Supreme Court.

F. LITTLE SIX HAS WAIVED THE DEFENSE OF

SOVEREIGN IMMUNITY

Waiver exists through knowing submission by

Respondent to the laws of Minnesota.

5. Conclusion

For these reasons, Petitioner seeks an order granting

review of the decision of the Court of Appeals.

App. 30

Dated: March 12, 1996 Attorneys for Petitioner Sylvia

Cohen

CLINTON COLLINS

& ASSOCIATES, P.A.

By: /s/ Clinton Collins, Jr. By: /s/ Gregory Abbott

ABBOTT & BARUCH, LTD.

Clinton C. Collins,

Jr.

Atty Reg.

# 192685

Suite 2500..

Foshay Tower

821 Marquette

Gregory A. Abbott

Atty Reg

#209491

Offices at Centre

Village

431 South Seventh

Street, Suite

Avenue South 2424

Minneapolis, Minneapolis,

Minnesota 55402 Minnesota 55415

(612) 373-0991 (612) 333-6691

STATE OF MINNESOTA )

ie

COUNTY OF HENNEPIN _)

Clinton Collins, Jr., of the City of Minneapolis,

County of Hennepin in the State of Minnesota, being duly

sworn, says that on March 12, 1996, he served the

attached Petition For Review Of Decision Of Court Of

Appeals on the following:

Steven F. Olson

Bluedog, Olson & Small, P.L.L.P.

5001 West 80th Street, Suite 670

Minneapolis, MN 55437

——

App. 31

Joseph Plumer

McDonough, Wagner & Sherry, P.A.

14501 Granada Drive, Suite 200

Apple Valley, MN 55124

District Court Administrator

Scott County Courthouse

428 South Holmes Street

Shakopee, MN 55379

the attorneys for Little Six, Inc. d/b/a Mystic Lake

Casino, the Defendant in this action, and the trial court

administrator, by mailing to them a copy thereof,

enclosed in an envelope, postage prepaid, and by deposi-

ting same in the post office at Minneapolis, Minnesota

directed to said attorneys and trial court administrator,

the last known address of said persons.

/s/ Clinton Collins, Jr.

Subscribed and sworn to before me this

12th day of March, 1996.

/s/ Marcia J. Mundhenk

Notary Public

My commission expires:

MARCIA J. MUNDHENK

NOTARY PUBLIC —- MINNESOTA

HENNEPIN COUNTY

My Comm. Expires

Jan. 31, 2000