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. 
2 

 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., 426 F.3d 635, 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.” Id. (quoting 

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). A plaintiff asserting subject 

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

Aurecchione, 426 F.3d at 638. 
3 

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., 532 U.S. 411, 416 (2001) (quoting Kiowa Tribe of Okla. 

v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)). Tribal immunity extends to tribal commercial 

enterprises, such as gambling venues. See Kiowa Tribe, 523 U.S. at 754–55. 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, 436 U.S. 49, 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 id. at 64–65; Shenandoah v. U.S. Dept. of 

Interior, 159 F.3d 708, 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