17-3588
    Laake v. Turning Stone Resort Casino

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 29th day of October, two thousand eighteen.

    PRESENT:
                      JOHN M. WALKER, JR.,
                      GUIDO CALABRESI,
                      DEBRA ANN LIVINGSTON,
                               Circuit Judges.
    _____________________________________

    John Laake, AKA Winter Laake,

                                Plaintiff-Appellant,

                      v.                                                     17-3588


    Turning Stone Resort Casino,

                                Defendant-Appellee.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                           John Laake., pro se, Aurora, IL.

    FOR DEFENDANT-APPELLEE:                            Pamela Starisa, Oneida Indian Nation
                                                       Legal Department, Verona, NY.
       Appeal from order of the United States District Court for the Northern District of New

York (McAvoy, J.; Dancks, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant John Laake (“Laake”), proceeding pro se, appeals from the district court’s

judgment dismissing his complaint against Turning Stone Resort Casino (“Turning Stone”) for

lack of subject matter jurisdiction based on tribal sovereign immunity. Laake had purchased a

vendor booth for a multi-day event hosted by Turning Stone and attempted to use the booth to

conduct tarot card readings, occult readings, and other paranormal demonstrations. Turning Stone

employees, finding this conduct improper, informed Laake that he would have to stop or he would

be forced to leave the casino. Laake later sued Turning Stone for alleged violations of his First

Amendment and equal protection rights, as well as for infliction of emotional distress and

defamation under New York common law. The district court dismissed the complaint. We assume

the parties= familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       On appeal from a judgment under Rule 12(b)(1), we review “the district court’s factual

findings for clear error and its legal conclusions de novo.” Aurecchione v. Schoolman Transp.

Sys., Inc., 

, 638 (2d Cir. 2005). A case is properly dismissed for lack of subject

matter jurisdiction if, after construing all ambiguities and drawing all inferences in the plaintiff’s

favor, the district court “lacks the statutory or constitutional power to adjudicate it.” 

v. United States, 

, 113 (2d Cir. 2000)). A plaintiff asserting subject

matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.

.



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       Here, the district court properly concluded that it lacked subject matter jurisdiction over

the complaint against Turning Stone. Indian tribes have sovereign immunity from suit unless

“Congress has authorized the suit or the tribe has waived its immunity.” C&L Enter., Inc. v. Citizen

Band Potawatomi Indian Tribe of Okla., 

, 416 (2001) (quoting Kiowa Tribe of Okla.

v. Mfg. Techs., Inc., 

, 754 (1998)). Tribal immunity extends to tribal commercial

enterprises, such as gambling venues. See Kiowa 

–55. Turning Stone is

a commercial enterprise, owned and operated by the Oneida Indian Nation of New York, a

federally recognized Indian tribe.     See Indian Entities Recognized and Eligible To Receive

Services From the United States Bureau of Indian Affairs, 82 Fed. Reg. 4915-02, 4917 (Jan. 17,

2017). Neither congressional abrogation of immunity nor waiver has occurred here. Therefore,

Turning Stone, as a commercial enterprise of the Oneida Indian Nation of New York, is entitled

to sovereign immunity.

       Laake argues that the Indian Civil Rights Act of 1968 (“ICRA”) supersedes Turning

Stone’s immunity. However, it is settled law that suits like this against a tribe under ICRA are also

barred by sovereign immunity. See Santa Clara Pueblo v. Martinez, 

, 59 (1978).

ICRA provides no private right of action against a tribe and may be enforced only in tribal court

or by a petition for habeas corpus in federal court. See 

Shenandoah v. U.S. Dept. of

Interior, 

, 713–14 (2d Cir. 1998). Neither of these exceptions applies here.

       We have considered all of Laake’s remaining arguments and find them to be without merit.

For the foregoing reasons, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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