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Kiowa Casino meets NIGC compliance for grand opening ANADARKO, Okla. – After several delays and postponed grand opening dates, the Kiowa Casino is now in compliance with the National Indian Gaming Commission and will be ready for business when it opens to the public May 23 near Randlett, close to the Red River border between Oklahoma and Texas. As part of the development of an Indian casino project in 2005, the KCOA, the gaming enterprise of the Kiowa Tribe of Oklahoma (the “Kiowa Tribe” or the “Tribe”), entered into a construction agreement with a replacement contractor, Chasco Constructors, Ltd., L.L.P.

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ORDER

TIMOTHY D. DeGIUSTI, District Judge.

Before the Court is the Motion to Dismiss [Doc. No. 71] of Third-Party Defendant Kiowa Casino Operations Authority ('KCOA'). Pursuant to Fed. R. Civ. P. 12(b)(1), KCOA seeks dismissal of the Third Party Complaint against it; it contends the Court lacks subject matter jurisdiction over that claim. Defendant Chasco Constructors, Ltd., L. L. P. ('Chasco') timely responded to the Motion, and KCOA filed a reply.

KCOA contends that the Court lacks subject matter jurisdiction over the claims asserted against it because it is an instrumentality of the Kiowa Indian Tribe of Oklahoma, a federally recognized Indian tribe; it argues that, as a result of its status, the Court lacks jurisdiction under the doctrine of tribal immunity.

I. Background:

This lawsuit was initiated by Swanda Brothers, Inc. ('Swanda') against Chasco; Swanda seeks recovery of sums it contends are due and owing as compensation for work it performed pursuant to a subcontract with Chasco. Chasco had executed a construction agreement (the 'Construction Agreement') with KCOA for the construction of a casino on Kiowa land, and it executed a subcontract with Swanda for the performance of certain work in connection with the casino construction project. Although Chasco made payment to Swanda for part of its work, final payment was withheld. In response to Swanda's demand for payment and, ultimately, this lawsuit, Chasco argued that all sums had not been paid because KCOA withheld payment on the Construction Agreement; KCOA contended that certain work was improperly performed.1

Chasco then filed a third-party complaint, asserting that KCOA had breached the Construction Agreement and converted funds due and owing to Chasco for work performed in constructing the casino. KCOA responded by filing this motion to dismiss, arguing tribal immunity deprives the Court of subject matter jurisdiction over Chasco's claims against it.

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II. Standards governing dismissal for lack of subject matter jurisdiction:

Motions to dismiss for lack of subject matter jurisdiction 'generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.' City Of Albuquerque v. U.S. Dept. Of Interior379 F.3d 901, 906 (10th Cir. 2004) (citing Ruiz v. McDonnell,299 F.3d 1173, 1180 (10th Cir.2002), cert. denied, 538 U.S. 999 (2003)). If the motion challenges only the sufficiency of the jurisdiction allegations in the Complaint, the Court confines its review of the motion to the pleadings; the allegations in the Complaint are accepted as true, and the Court may not consider evidentiary material. Holt v. United States,46 F.3d 1000, 1002 (10th Cir. 1995). Where, however, the motion challen

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