In a response brief filed earlier this week, the State of California argues that peer-to-peer online bingo gaming activity takes place on both tribal lands (vis-a-vis computer servers) AND that is takes place off-reservation by virtue of the fact that bingo players in California are not physically present on tribal lands when they play remotely from PC’s, iPhones, and otherwise from outside sovereign tribal terra firma.
In this first of its kind iGaming litigation, the Iipay tribe had cogently argued in its motion to dismiss this case that if the allegedly illegal iGaming bingo was taking place “off-reservation” as the State of CA repeatedly contended, then the State lacks subject matter jurisdiction to bring the case in the first place. Citing precedent on this score, and believing it had painted the State of California into a corner by virtue of the State’s arguments made previously in the case about “off-reservation” activity, the Iipay nation vigorously claimed that the State could not pursue the instant litigation — i.e., when the State had argued so persuasively to the trial court during the provisional relief stage seeking a TRO (which the USDC trial judge granted) that the bingo gaming activity takes place off of the tribal lands, then the State has no power to bring this lawsuit. Period. End of story. So, said the Iipay, you must now dismiss this case for lack of jurisdiction in accord with the prior TRO ruling.
Now, however, the State has responded; not so fast. We didn’t say the gaming activity only occurs off of tribal lands. CA has filed this motion to dismiss response contending that the improper tribal gaming activity at issue here takes place BOTH upon the tribal lands of the Iipay nation AND off-reservation. As a result of that purported duality as to the locale of the gaming, CA maintains that is has proper subject matter jurisdiction and has noted in passing that the trial court has already determined (during the TRO proceedings) that the bingo gaming activity at issue here is Class III (not Class II) and therefore is a subject of the State – Tribal gaming compact.
On July 27th 2015, the Iipay Tribe filed its Reply brief in response to the State’s Opposition papers. In them, the Tribe again argues that unless and until the State stipulates to the fact that the disputed “gaming activity” is conducted solely and exclusively on the Tribe’s Indian lands, the Court cannot proceed to adjudicate the State’s claims because the State’s action is barred by the doctrine of tribal immunity. The Reply contends that the SCOTUS legal rationale expressed in the Bay Mills decision does not permit any other result.
Additionally, as regards the Class II versus Class III gaming category issue, the Tribe contends that Trial Court cannot begin to conduct a classification analysis to determine if the disputed gaming activity is legally deemed class II gaming or class III gaming under IGRA until it is stipulated that the gaming activity in question is “conducted entirely on Indian lands” so as to fall within the purview of IGRA. The State tries to concede this point, says the Tribe, but in the end it simply cannot bring itself to do so because it wants to have its cake and eat it too – meaning that Tribal Defendants’ motion to dismiss must be granted under Fed.R.Civ.P. 12(h)(3).
The hearing on this Motion to Dismiss is set for March 5, 2015. Given the trial court’s prior ruling during the TRO phase, it would be difficult to see the Judge not agreeing with the State again. That said, both sides (as do all concerned and interested observers) fully expect this matter to be taken up on appeal either way.
See the State of CA Opposition response to the Motion to Dismiss filing here — http://www.jdsupra.com/legalnews/state-of-californias-opposition-to-defe-27045/
See, the Defendant’s Reply papers filed in response to the State Opposition filing here — http://www.jdsupra.com/legalnews/defendants-reply-to-state-of-california-35812/