Ager v. Office of Director of Regulation

1 Am. Tribal Law 380, 1 G.D.R. 1
CourtMohegan Gaming Disputes Trial Court
DecidedOctober 30, 1997
DocketNo. GDTC-AA-97-107
StatusPublished
Cited by25 cases

This text of 1 Am. Tribal Law 380 (Ager v. Office of Director of Regulation) is published on Counsel Stack Legal Research, covering Mohegan Gaming Disputes Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ager v. Office of Director of Regulation, 1 Am. Tribal Law 380, 1 G.D.R. 1 (Mo. 1997).

Opinion

GUERNSEY, J.

On May 2, 1997 the Plaintiff Larry Ager, proceeding pro se, appealed to the i Gaming Disputes Court from a “preliminary, procedural or intermediate action” of i the Office of the Director of Regulation, claiming that the same was “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record”. The Plaintiff had been employed by the Mohegan Tribal Gaming Authority as a probationary employee pending his application for a non-gaming license, the denial which by the Director of Regulation resulted in termination of his employment. The Defendant has moved to dismiss on grounds that this action is an appeal from the denial of a non-gaming license, over which this court lacks subject matter jurisdiction. At the hearing on Defendant’s motion, the Plaintiff stipulated that his employment was terminated because of the denial of his application for a non-gaming license.

Although Defendant’s Memorandum of Law claimed that this court lacked subject matter jurisdiction because the license at issue was a non-gaming license and that the Gaming Disputes Court lacks jurisdiction over non-gaming matters, the amicus curiae Brief of the Mohegan Tribe dated October 14, 1997 asserts that this matter should be dismissed on grounds that there has been no waiver of sovereign immunity permitting the appeal of the denial or revocation of a non-gaming license. For the reasons set forth below, it is found that neither the Mohegan Tribe nor the Mohegan Tribal Gaming Authority has waived sovereign immunity with respect to the appeal of matters related to non-gaming licenses, and that Plaintiffs appeal must therefore be dismissed.

A. SUBJECT MATTER JURISDICTION OF THE GAMING DISPUTES COURT.

It is unquestioned that the Gaming Disputes Court is a court of limited jurisdiction, and that the court possesses only such jurisdiction as is set forth in Article XIII, Section 2 of the Constitution of The [382]*382Mohegan Tribe of Connecticut (hereafter the “Mohegan Constitution”) and M.T.O. 95-4, “An Ordinance Establishing the Gaming Disputes Court” (originally enacted as 95-7/20-1) or as may otherwise be provided by ordinance (see, e.g., M.T.O. 96-2 Sec. 3). Section 501 of M.T.O. 95-4 provides that this court shall have “exclusive original jurisdiction over all cases with respect to which the Tribe has conferred subject matter jurisdiction pursuant to Article XIII of the Mohegan Constitution.” Although counsel for the Defendant Office of the Director of Regulation has focused on the word “Gaming” in arguing that this court is without subject matter jurisdiction to entertain an appeal relating to the denial of a non-gaming license, this argument fails to consider the broad constitutional definition of “Gaming” contained in Article XIII:

... the development, construction, operation, promotion, financing, regulation, and licensing of gaming, and any associated hotel, associated resort or associated entertainment facilities, on tribal lands (collectively, “Gaming”).

Mohegan Constitution, Art. XIII, Sec. 1. Furthermore, the constitutional jurisdiction of this court is broadly defined in connection with the preceding definition of Gaming:

Exclusive jurisdiction for the Tribe over disputes arising out of or in connection with the Gaming, the actions of the Tribal Gaming Authority, or contracts entered into by The Mohegan Tribe or the Tribal Gaming Authority in connection with Gaming, including without limitation, disputes arising between any person or entity and the Tribal Gaming Authority, including customers, employees ... shall be vested in the Gaming Disputes Court.

Mohegan Constitution, Art. XIII, See.2.

It is certainly conceivable that the position of “pantry person” for which the Defendant had applied would fall within the foregoing boundaries, either in connection with the operation of an associated entertainment facility on tribal lands or the actions of the Tribal Gaming Authority. However, the disposition of Defendant’s Motion to Dismiss does not require the resolution of this issue in light of the conclusion that there has been no waiver of the sovereign immunity of the Mohegan Tribe or the Mohegan Tribal Gaming Authority that would permit an appeal from the denial or revocation of a non-gaming license.

B. SOVEREIGN IMMUNITY OF THE MOHEGAN TRIBE AND MOHEGAN TRIBAL GAMING AUTHORITY.

The Constitution of The Mohegan Tribe of Indians of Connecticut expressly provides that the powers of the Tribe shall include all the inherent sovereign rights and powers of an independent, indigenous sovereign nation. Mohegan Constitution, Art. II. It is well established that Indian tribes possess the “common-law immunity from suit traditionally enjoyed by sovereign powers”, Santa Clara, Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978), absent “a clear waiver [of immunity] by the tribe or congressional abrogation.” Oklahoma, Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). The issue of tribal sovereign immunity is jurisdictional in nature. McClendon v. United States, 885 F.2d 627, 629 (9th Cir.1989). At issue in this case is whether there has been an effective waiver of sovereign immunity so as to allow the appeal of a final decision by the Director of Regulation denying or revoking a non-gaming license.

[383]*383Section 502 of Article V of M.T.O. 95-4 specifies that nothing in the ordinance establishing the Gaming Disputes Court “shall be construed as a waiver of the sovereign immunity of the Tribe, the Authority or the Tribe’s other enterprises or political subdivisions, or its officers, agents, or employees, unless specifically denominated as such.” Therefore, for this action not to be barred by sovereign immunity there must be an effective waiver with respect to decisions regarding the issuance or revocation of non-gaming licenses. Any such waiver of the Tribe’s sovereign immunity “cannot be implied but must be unequivocally expressed.” Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d 1489, 1498 (D.C.Cir.1997), citing San-ta Clara, Pueblo, 436 U.S. at 58, 98 S.Ct. 1670.

Mohegan Tribal Ordinance No. 95-6, establishing procedures for appeals to the Gaming Disputes Court, authorizes a person “who is aggrieved by a final decision” to appeal to the Gaming Disputes Court as provided in that ordinance. “Final decision” is defined as “a final decision of the Director of Regulation regarding ... the issuance or revocation of gaming licenses.” M.T.O. 95-6 Sec.1(b)(1). In order for an appeal to be taken from a “preliminary, procedural or intermediate agency action or ruling”, (the category selected by the pro se Plaintiff) it is required that the person “will otherwise qualify under this ordinance to appeal from the final agency action or ruling.” M.T.O. 95-6, Sec. 2(b)(1).

The Director of Regulation is charged with carrying out the Tribe’s regulatory duties “and shall have final authority over all license applications.” M.T.O. 95-2, Sec.

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Bluebook (online)
1 Am. Tribal Law 380, 1 G.D.R. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ager-v-office-of-director-of-regulation-mohegangct-1997.