This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

February 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDDIE SANTANA,

Plaintiff-Appellant, No. 06-5210

v. N.D. Oklahoma

CHEROKEE CASINO; OSAGE

CASINO; CREEK NATION CASINO,

Defendants-Appellees.

(D.C. No. 06-CV-513-EA)

ORDER AND JUDGMENT

*

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

On September 25, 2006, Appellant Eddie Santana filed a complaint in

federal district court wherein he asserted Defendants use billboards and other

forms of advertising to entice individuals to gamble at their casinos. Santana
We note Santana has also failed to allege that the amount in controversy

1

exceeds $75,000. See 28 U.S.C. § 1332; Laughlin v. Kmart Corp., 50 F.3d 871,

873 (10th Cir. 1995) (holding that the requisite amount in controversy and the

existence of diversity must be affirmatively established in the pleading of the

party seeking to invoke jurisdiction). 

-2-

alleges he is currently being treated for a gambling addiction. He asserts

Defendants’ advertising unfairly targets individuals with gambling addictions,

resulting in Defendants’ unjust enrichment. Santana seeks damages in the

amount of $9000, a sum he alleges he has lost gambling since 2002. 

Santana based his claims on the Indian Gaming Regulatory Act (“IGRA”),

25 U.S.C. § 2701, and asserted the federal court had subject matter jurisdiction

under 28 U.S.C. § 1331. The district court, however, dismissed the suit for lack

of jurisdiction, noting Santana was attempting to pursue state law tort claims

against Defendants through the IGRA and concluding the IGRA does not contain

a private right of action in favor of an individual. See Hartman v. Kickapoo

Tribe Gaming Comm’n, 319 F.3d 1230, 1232-33 (10th Cir. 2003) (“[N]owhere

does IGRA expressly authorize private individuals to sue directly under the

statute for failure of a tribe, a state, or the NIGC to comply with its provisions.”). 

The court further concluded Santana could not rely on diversity jurisdiction since

all parties are citizens of Oklahoma for purposes of 28 U.S.C. § 1332.1

This court reviews a dismissal for lack of subject matter jurisdiction de

novo. See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999). 
-3-

Based on our review of the record, the pleadings, and the arguments asserted by

Santana in his appellate brief, we conclude the district court did not err when it

dismissed Santana’s complaint for lack of subject matter jurisdiction.

Accordingly, we affirm the district court’s dismissal of Santana’s action. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge