Opinion
Case No. 02-4040-RDR
April 14, 2003
MEMORANDUM AND ORDER
This matter is presently before the court upon plaintiff's motion to reconsider. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
On January 7, 2003 the court granted the defendants' motion to dismiss and dismissed this action for lack of subject matter jurisdiction. The judgment dismissing the case was filed on January 8, 2003. The instant motion was filed by the plaintiff on January 23, 2003.
Plaintiff seeks reconsideration based upon Fed.R.Civ.P. 59(e). She contends that the court should have considered whether a stay should have been entered until a decision on her claims pending before the Tribal Court for the Iowa Tribe of Kansas and Nebraska is rendered. She relies upon National Farmers Insurance Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) for support.
The motion for reconsideration filed by plaintiff must be construed as a motion to alter or amend the judgment under Rule 59(e) because it was filed within ten days of the judgment. See Venable v. Haislip, 721 F.2d 297, 299 (10th Cir. 1983); see also Fed.R.Civ.P. 6(a) (excludes weekends and holidays in computing ten-day period of Rule 59(e)). Motions for reconsideration under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
In the order of January 7, 2003, the court found it lacked subject matter jurisdiction over the claims asserted by the plaintiff. Plaintiff, a member of the Iowa Tribe of Kansas and Nebraska, had asserted various claims under the Indian Civil Rights Act (ICRA), the Indian Gaming Regulatory Act (IGRA), and Title VII of the Civil Rights Act of 1964 (Title VII) after she was terminated from her employment as a gaming inspector at the White Cloud Casino. The Casino is operated by the Iowa Tribe of Kansas and Nebraska Gaming Commission and owned by the Iowa Tribe of Kansas and Nebraska. The court found that ICRA, IGRA and Title VII did not provide jurisdictional bases in federal court for the plaintiff's claims against the defendants.
The court is not persuaded that National Farmers Union requires a stay where the court has determined that no basis exists for subject matter jurisdiction. In National Farmers Union, the Supreme Court held that the question of whether tribal courts have jurisdiction over non-Indians in civil cases should first be addressed in tribal court. 471 U.S. at 856. Given the very different circumstances present here, the court has not been convinced by plaintiff that the decision in National Farmers Union requires a stay. The court believes that we properly dismissed plaintiff's claims in the earlier order for lack of subject matter jurisdiction.
The court does wish to address one matter that is connected to the arguments made by the plaintiff in the instant motion. In the prior order, the court determined that ICRA did not provide federal question jurisdiction here. ICRA provides no federal cause of action in civil cases, except for habeas corpus. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978). However, as we noted in the earlier order, the Tenth Circuit created an exception to Santa Clara Pueblo that allows federal courts to decide ICRA-based cases where there is no available tribal court. See Dry Creek Lodge, Inc. v. Arapahoe Shoshone Tribes, 623 F.2d 682, 685 (10th Cir. 1980), cert. denied, 449 U.S. 1118 (1981). We determined in the prior order that Dry Creek did not apply because the tribal court had not as yet denied access to the plaintiff. We now wish to note other reasons why Dry Creek is inapposite here. The exception noted in Dry Creek applies only where "the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian." Id. This case clearly involves claims by a member of the Iowa Tribe of Kansas and Nebraska. Moreover, we note that the Tenth Circuit has limited Dry Creek to its facts. See Enterprise Management Consultants v. United States, 883 F.2d 890, 892 (10th Cir. 1989) (limiting Dry Creek to its "highly unusual facts"); White v. Pueblo of San Juan, 728 F.2d 1307, 1312-13 (10th Cir. 1984) (must interpret Dry Creek narrowly); Ramey Construction Co. v. The Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 319 n. 4 (10th Cir. 1982) (limiting Dry Creek to its "egregious" facts). With these additional comments, the court finds no basis for the entry of a stay in this case.
IT IS THEREFORE ORDERED that plaintiff's motion to reconsider (Doc. #33) be hereby denied.
IT IS SO ORDERED.