Cossey v. Cherokee Nation Enterprises, LLC

2009 OK 6 Bar Associa- report annual Loyman COSSEY, Plaintiff/Respondent, tion. ENTERPRISES,

CHEROKEE NATION LLC, formerly known as Cherokee Na Inc., Enterprises, Na tion and Cherokee Enterprises, tion Defendant/Petitioner. 105,300. No. Supreme Oklahoma. Jan. OK 60 Rehearing Denied June In re: Initiative Petition No. Question No. 726.

State 102,999.

No.

Supreme Court of Oklahoma.

Sept.8,2006.

ORDER 31, 2006, August

T1 the Court issued On styled in the and numbered

an order above determining that:

cause

1) The cause failed for numerical insuffi-

ciency signers;

2) supported ille- The evidence substantial

gal participation of out-of-state circulators. 8.1;

Title 34 00.98.2001 Okla. Const. 1;§

art.

3) Denying argument; oral

4) opinion Providing that an official would

follow. Attorney

12 The Court notes granted

General has been amicus curiae sta- Therefore, Attorney

tus in the cause. on the

General is invited to file brief issues (10) days

outlined within ten of the date of

this order. Tawwater, Tawwater, Larry A.

Darren M. OK, City, Plaintiff/Respondent. Oklahoma Mallett, Taylor, Bradley Harold Stratton Claremore, OK, Ramsey, Mark Harrison Defendant/Petitioner. Rabon, OK, Hugo, L.

Robert Choe- taw Nation as Amicus Curiae. Hartley-Kelso, Nation Deanna Chickasaw General, Greetham, Attorney Stephen H. Commerce, Chickasaw Nation Division Ada, OK, Ami- for the Chickasaw Nation as cus Curiae.

OPINION J.;: WATT, whether the T1 We are asked to determine Rogers County, District Court of (state court), II. STANDARDOF REVIEW juris- is a "court of term diction" as is used the "Tribal T8 question We review a of law. Gaming Compact Between the Cherokee Na- assigned law, When an error is one of (the tion and the State of Oklahoma" Com- novo, standard of review is de a non-deferen pact), executed November 2004. The tial, plenary independent review of the Compact is based on the Model Tribal Gam- legal trial ruling. Sight court's Tibbetts v. 'n $ ing Compact, Supp.2004 3A 0.8. Inc., Centers, Appliance Sound 2003 OK Act, part of the State-Tribal 3A 1042; Gray, 77 P.3d Christian v. 2003 OK Supp.2004 parties §§ 0.8. 261-282. The P.3d are the Cherokee Nation (Tribe) and the State of Oklahoma. We hold IH. IDENTIFICATION OF PARTIES competent that the state court a is "court of AND THEIR CONTENTIONS

jurisdiction" as that term is used the Com- pact by parties. executed the T4 CNE contends the Cherokee Nation only competent court is the court of jurisdiction to hear a claim which arose in

I. AND FACTS PROCEDURAL Country against Indian the Tribe. In addi HISTORY argument tion to its that it is entitled to 1 2 Plaintiff/Respondent Loyman Cossey, a immunity Nation, assert the of the Cherokee non-Indian,1 sued Defendants/Petitioners CNE Compact provides only contends the LL.C., Emterprises, Cherokee Nation for limited, immunity. conditional waiver of that merly known as Enterpris Cherokee Nation argues CNE further that because the state es, Inc., and Enterprises, Cherokee Nation law, complied has not with federal as dis Inc., (collectively, CNE), in state court for IV., infra, cussed Part the tribal court is personal injuries he received on October only the court adjudicatory juris with "civil 2005, while he awas customer at the Chero Country diction" in Indian and thus is the Roland, kee ap Casino Oklahoma. CNE only jurisdiction" "court to con peared specially and moved to dismiss for Cossey's sider tort claim. CNE does not subject lack of personal jurisdic matter and dispute the fact that the Tribe consented to tion, pursuant Supp.2004 O.S8. Compact suit under respect the with to tort 2012(b)(1), (2), (F)(3). § The court de argues claims but that there are limitations nied the motion to January dismiss. On on that consent and on the extent of its granted petition this Court for cer- liability.3 by tiorari filed CNE for review of the court's order as a interlоcutory certified pur Cossey, non-Indian, order T5 contends 952(b)(3).2 suant to 0.8.2001 party the Tribe not a is to this suit and that required The terms "non-Indian" and "nonmember" additionally argues to obtain. CNE that designate person who is not a member of the following to sue is conditioned on purposes opinion. Cherokee Nation for of this Compact's procedure by filing tort claim notice injury receiving of the a denial of the claim. 2. The state court ruled, alia, inter that Cherokee present undisputed In the Cossey case it is Enterprises, juris- Nation L.L.C. is procedure followed the claim and that the claim diction of the state court and that the state court was deemed denied. competent jurisdiction" is a "court of as used in Compact. The court also found that Chero- issue, 4. As a Cossey's threshold we address con- Enterprises, op- kee Nation LL.C. is owner and party tention that the Tribe is not a to this suit. open erator of the casino which is to tribal mem- Compact provides operation The of "cov- Further, bers and non-tribal customers. games", activities", gaming ered or "Class III state ruled that CNE is not entitled to generat- the Tribe's "Indian lands" as a means of assert Tribe, of the "as it ing purposes by revenues for authorized the fed- separate corporate entity is a from the Cherokee (IGRA), Gaming Regulatory eral Act Nation Indian Tribe." 2710(d) seq. §§ «U.S.C. 2710 et Section of the Liability provides gaming IGRA for for tort claims under "Class III is activities" $250,000.00 per only person limited on Indian lands under certain conditions. $2,000,000.00 per by occurrence. This is These reflected activities must be authorized an ordi- liability policy in the insurance adopted by which CNE was gov- nance or resolution the Tribe's agency or section of tribe or the tribal [TJhe must be conduct- erning body. Class III responsibility compact management with direct of a Tribal-State the structure ed within games, See 25 by and the State. the tribal the Tribe for the conduct of covered executed (B) (C) pro- which enterprise covered U.S.C. that conducts business games, person, corporation other or or vide: (d)(1) management law- shall be entity III activities entered into a Class that has only are- activities lands if such ful on Indian to conduct covered with the tribe contract (A) or resolution ordinance authorized games, in accordance IGRA. names, that- identifying addresses and informa- (i) body governing adopted is any game employees shall be tion of covered having jurisdiction such tribe Compliance the SCA [State forwarded to lands, event, annually. Agency] at least (i) requirements of subsection meets the responsibility have the ultimate tribe shall section, (b) of this ensuring enterprise that the tribe or ful- for Chairman, (iti) approved Compact. responsibilities under this fills (B) permits in a State located enforcement, purposes the tribe is For by аny person, any purpose or- gaming promises have made all deemed to entity, ganization, enterprise;... (C) Trib- conformance with a conducted in Tribe, Compact requires Enterprise compact into the Indian entered al-State manages operations, the casino's to main- paragraph tribe and the State purpose liability "public insurance" for tain is in effect. covering satisfying tort claims. The "Arti- of must be ordinance or resolution The Tribe's Organization of a Cherokee Nation Limit- cles of publish who will then approved the Chairman 19, Liability Company" April ed was executed on Regis- approval the Federal in it and the order liability denoting the name of the limited 2710(d)(2)(B). is de- "Chairman" ter. See Enterprises, company Nation as "Cherokee Indian of the National fined as the Chairman agent signed by in It is the resident LLC." 2703(2). Gaming 25 U.S.C. Commission. Huffman, Jr., Country, Robert A. Indian 15, 2004, the the Council of On November forming purpose a Cherokee Nation stated Authorizing a "A Resolution Tribe executed liability company provides the fol- limited Gaming Compact Oklahoma." with the State of "Membership" Company: lowing the as to provides part: It WHEREAS, Ownership company of the shall be vested significantly will the Nation membership. The sole and exclusive by operating the of a its under terms benefit Gaming Compact proposed by company the the shall be the Chero- member of State-Tribal Act, Nation, Gaming federally recognized Oklahoma Senate State-Tribal kee tribe, vote assigns. (Empha- enacted November Bill or its successors or Question people added.) in Oklahoma as State of the sis 3A, seq.; Title Section 261 et Operating Agreement of Cherokee Nation WHEREAS, Gaming Act re- the State-Tribal LL.C. was executed July Enterprises, exe- quires effective it must be that to become Agreement, the "Member"" of the It that provides official, duly cuted authorized (CNB), Businesses, LL.C., Nation en- Cherokee required intergovernmental compacts are to be adopt operating Agreement ters into the Nation, the Council of the Cherokee ratified by "Company" the agreement CNE as the under for Legislative Act 15-01. Act, Liability Cherokee Cherokee Nation Limited BY THE CHEROKEE BE IT RESOLVED provides Legislative Act 32-04. It that Nation NATION, hereby Principal that the Chief is CNB, single- Company's sole Member is the to execute the State-Tribal authorized is whol- Cherokee Nation LL.C. which member Nation, on behalf of the Cherokee Compact explains ly-owned by the Tribe the Tribe. It also compact required by as and to submit them CNB CNE so that each of structured approval. law for federal Op- immunity. tax shares in the Tribe's federal acknowledges law re- the state The Resolution erating Agreement, Art. 1.6.3. It refers to Supp.2004 § quirement, 0.S. under 3A Act, Liability Company Cherokee Nation Limited compact by duly authorized execution of the 32-04, Legislative and the Act Cherokee Nation requirement law that tribal official and the tribal purpose Organization. It states the Articles of compacts required '"intergovernmental are to be activity engage Company lawful is to Thus, of the Tribe. ratified the Council" liability companies may be for which limited provisions, both the Resolution accordance with Agreement, organized Operating under the Act. Principal Chief to execute authorizes Le., Company, provides Art. 1.4. It also Compact it on behalf of the Tribe to submit LL.C., Enterprises, is the suc- Cherokee Nation Secretary approval the Interior by merger Enter- with Cherokee Nation cessor Compact (Secretary) publish in the who must Compact signed by Inc. Register. Federal prises, Compact's provisions and is evident that the ap- Principal the Tribe. The Chief on behalf of authorizing indicate the Tribe's documents Secretary proval is dated of the Office of the "Enterprise", which includes and the "Tribe" 28, 2004. December "CNE", all refer to the Tribe for LLC known as Throughout the Tribe is referred Compact, duties, management respon- purposes "Enterprise" defined as: which is as sovereign tribal, CNE not assert Compact Tribe's This shall not alter federal immunity. argues adjudicatory He juris- also the doctrine state civil or criminal added). sovereign (emphasis diction. was never meant protect conducting entities "non-tribal busi 18 CNE contends the above section does ness" which activity is unrelated to the provide jurisdic Oklahoma courts with furthering self-government, citing Dix Country. tion over claims in Indian It con Co., Picopa on v. Constr. 160 Ariz. acquired tends Oklahoma adju had not civil P.2d 1104 He also contends the state dicatory jurisdiction over such claims before courts have at least concurrent was executed because the State with tribal courts over his tort claim because comply has failed to with federal law enacted the Tribe consented to suit under the Com (PL-280).6 in 1953 known as "Public Law 83-280" pact which is derived from the Oklahoma Union, When Oklahoma entered the Statutes. our provided constitution the State of relinquished any right to control agree Cossey, T6 While we and we upon tribes or enter tribal lands.7 hold, Tribe, conducting that the "non-tribal PL-280 allowed states such as Oklahoma to business," is not entitled to immu take through affirmative action constitutional nity case,5 from suit state court in this we amendment or enactment of a statute to disagree that state court over his assume criminal civil and/or totally tort claim is derived from the Tribe's Country." "Indian PL-280 was consent Compact. to suit under the part amended Rights of the Indian Civil (ICRA). 1821-1826; Act §§ See 25 U.S.C. IV. STATE COURT JURISDICTION OF IV, (1968); $ PL. Title 82 Stat. CLAIMS ARISING ON INDIAN T7, codified, amended, and as 25 U.S.C. LAND AND THE EFFECT OF "PUB- §§ in 1982 and thereafter. It LIC LAW 280" provided for assumption the states' of civil support To its contention that jurisdiction state arising over claims in Indian Country courts hаve no required but the "consent of the over tort claims Compact, under the CNE refers us to Part 9 occupying tribe particular the Indian coun 1822(2)8 try." § Compact. provides See 25 U.S.C. of the following: Roland, sibility of States, the casino in extinguished by Oklahoma. The the United the same Tribe Compact. was authorized to enter into the subject jurisdiction, shall be and remain Compact The comply and other documents disposal, and control of the United States. Gaming the State-Tribal Act which is authorized belonging Land to citizens of the United States residing without reject act, federal Therefore, IGRA. we the limits of the State shall by Cossey's argument that the Cherokee Nation is higher never be taxed at a rate than the land party anot to this suit. belonging to residents thereof. No taxes shall imposed by property the State on lands or unnecessary 5. It becomes Cossey's to consider belonging may pur- to or which hereafter be finding, contention, and the trial court's by chased the United States or for its reserved CNE not assert the Tribe's immu- use. nity. Assumption 8. 25 by § U.S.C. State of 6. The 1953 civil statute allowed the states to assume civil and criminal without the con- (a) States; Consent of United force and ef- sent of the tribes. fect of civil laws The hereby consent of the United States is Const., I, § 7. Okla. Unappropriated pub- Art. given any having jurisdiction State not lic lands-Indian lands-Jurisdiction of United over civil causes of action between Indians States parties or to which Indians are which arise country in the areas of people inhabiting situated agree with- the State do they declare that forever disclaim all in such State to assume, with the consent of any occupying particular unappropriated title in or the tribe public lands thereof, lying country part within the or boundaries and to all thereof which would be af- lying lands within said by limits owned held assumption, fected such such measure of Indian, tribe, nation; any any and that until over or all such civil causes public title to arising land shall have been country of action within such Indian (C) publication under Effective with the acknowledged Okla This Court (B) jurisdic or reso subparagraph of an ordinance steps take to assume did not homa v. body PL-280 Lewis an previous adopted by governing tion under lution Housing approved Indian tribe that has been Fox Tribe Sac Okla Authority.9 "[b]ecause held that (B), We subparagraph under class Chairman steps to appropriate not take homa did activity Indian lands on the III PL-280, proper jurisdiction under take fully subject tribe shall be of the Indian focus case must be made inquiry to and conditions of Trib to the terms fostering policy of congressional upon the compact entered into al-State light pertinent U.S. autonomy in the paragraph the Indian tribe Lewis, jurisprudence." Supreme Court added). (emphasis in effect. is omitted). (citation CNE n. 21 P.2d at ¶ 11 Tax Comm'n See also Oklahoma is the consent under contends Indian Tribe Citizen Band Potawatomi taken there was no vote ineffective because Oklahoma, membership, required by the entire tribal (1991),which held PL-280 is L.Ed.2d 1112 Ninth Judi by Kennerly v. District Court of juris to confer independently sufficient Montana, cial District of range full diction on a State to extend the disagree. We 27 L.Ed.2d 507.10 S.Ct. Indians and reser regulatory it Kenmerly upon cases which 1 10 and the Law 280 is not vations. We hold Public There was no distinguishable. are relied jurisdiction and impediment to state court IGRA, statute, containing such as the federal is, fact, inapplicable to this case. approval requirements specific body engage in Class governing Tribe's Moreover, pro- also gaming. III IGRA TRIBAL JURISDICTION V. COURT'S to be that such

vides THE INDIAN GAMING UNDER law, i.e., Gaming Com- the Model Tribal ACT REGULATORY part Supp.2004 which is pact, 3A 0.8. Act, 3A O.S. next consider whether Con We State-Tribal 2710(d)@)(C) IGRA, §§ See Supp.2004 gress, through the enactment 261-282. jurisdiction. enlarged tribal-court provides: of the IGRA provide Court reasoned that tribal courts any part may determined thereof as be or appropriate of those forum for settlement extent that such State such State to the same property disputes personal interests over and jurisdiction over other civil causes of tribal relation- of Indians which arise out of such State that action, and those civil laws teachings Kemnerly ships. and Fisher application private persons general are of cognizance do not divest state courts private property shall have the same force Where, here, disputes among Indians. as all country part and effect within such Indian implicated, governs the transaction state law is they within that thereof as have elsewhere invoked, infringement and there is no and is State. self-government, upon there can be no (Footnote omitted) cognizance. barrier to state considered, 20, OK 896 P.2d 503. Lewis 9. 1994 (Emphasis original). alia, courts whether ousted state inter contract concurrent to consider Indian interests are ten- sum, whenever involving Indi- land transactions between actions controversy, a court must dered in a state statutorily housing buyers and created Indian inquiry preliminary make a into the nature of the state. authorities Only rights sought that liti- to be settled. gation explicitly which is withdrawn Con- we noted in Lewis However, Kennerly, infringes upon gress self- or that which 217, Lee, v. 79 which relied on Williams government stands outside boundaries 269, L.Ed.2d does not stand S.Ct. (Foot- permissible cognizance.... state-court defeating jurisdic concurrent state as omitted.) note cases, solely but "is concerned tion in all civil Authority, Housing v. Sac and Fox Lewis which,tribal procedural with the mechanisms 20, 10, 12, ¶¶ 896 P.2d at 508. OK Lewis, registered." OK consent must 20, ¶ 9, 508, Kennerly, quoting (d) 896 P.2d at Paragraph 3 of subsection provides good negotiation between the Tribe and State in Citing S.Ct. at 483. 430, U.S. at Kennerly compact, approval faith to enter into 382, Court, Fisher v. District Register, Secretary published the Federal 106, this Court also stated: 943, 47 L.Ed.2d 2710(d)B)(C) provides case, IGRA a list of subject juris this we address matter provisions any negotiated tribal-state diction and the immunity of the compact "may" "May" ordinarily include. being Tribe as defense to sued permissive, construed as while "shall" is or court. We are concerned with tribal and Osprey dinarily mandatory. construed as See state court over the activities of Co., Inc., Kelly-Moore .C. Paint non-Indians on "Indian lands.12 L.L 194; Shea, 1999 OK 984 P.2d Shea v. 115 A competent jurisdic "court of 1975 OK 537 P2d 417. Section tion" having is one a person 2710(d)(8)(C) provides part: and the power matter and the (C) Any compact negotiated Tribal-State authority of law at the time to render (A) subparagraph may provi- include particular judgment. See Ex Parte Plais relating sions to- tridge, 646; 1918OK 68 Okla. 173P. (i) application of the criminal and Justus, Ex Parte 1909 OK CR 104 P. regulations laws and civil of the Indian 933, 3 Okla.Crim. 111. See also Choctaw directly tribe or the State that are relat- County Excise Board v. St. Louis-San Fran to, for, necessary ed licensing Railway cisco Company, 1969 OK regulation activity; of such P.2d 545. (i) the allocation of criminal civil €16 While the ultimate issue remand between the State and the will liability be the injuries tribe's necessary Indian tribe for the enforee- Cossey casino, sustained at the we first con regulations;. ment of such laws and ... Cossey's sider status as a non-Indian citizen added). (emphasis of Oklahoma and his of access to Okla Compact 113 The here does not in homa remedy courts to seek a inju for his jurisdiction. clude such allocation of In Const., ries. See Okla. Art. 6.13 Our stead, Compact provides only: "This constitution recognizes that the state of Okla Compact tribal, shall not alter federal or inseparable homa is an part of the federal adjudicatory state civil jurisdic or criminal union and that the United States Constitu tion" and that tort claims be heard in a supreme tion is the law of the land. Okla. competent jurisdiction." "court of The Tribe Const., 1, § Art. 1.14 When our constitution have, not, could but jurisdic did include such was revised in existing courts were tional allocation in Compact. Neither abolished, and the desig district courts were the IGRA nor approved en nated to previous succeed all courts on the larged jurisdiction. the Tribe's date, effective designation, and with that "jurisdiction, functions, powers and duties VIL. COURT OF COMPETENT [were] respective transferred to the District JURISDICTION AND DUAL Const., 7(b). Courts." Okla. § Art. Dis SOVEREIGNTY trict courts vested with orig "unlimited were T14 In determining whether Oklahoma inal jurisdiction justiciable of all matters ... courts are competent jurisdiction" "courts of powers and such of review of administrative provisions "may I, which § included in the justice open-Remedies 13. Art. 6. Courts of Compact. wrongs-Sale, delay denial or justice The courts of open of the State shаll be IGRA, by 12. "Indian lands" is defined every person, speedy to and certain reme- 2703(4) (1992), § U.S.C. as: dy every wrong afforded every and for (4) The term "Indian lands" means- injury person, property, reputation; to (A) all any lands within the limits justice shall be administered without reservation; sale, denial, delay, prejudice. (B) any lands title to which is either held in by trust the United States for the benefit of I, § Supreme 14.Art. Law of land by any Indian tribe or individual or held Indian tribe or individual to restric- The State inseparable part of Oklahoma is an by Union, tion the United States alienation of the Federal and the Constitution of and over which an Indian tribe exercises supreme the United States is the law of the governmental power. land. presumptively authority, and are thus ent by statute." Okla. provided may be action as arising 7(a). competent, adjudicate claims court to Const., 7, § district Each Art. "jurisdiction of all laws of the United under the and assumed succeeded States.... pend causes, proceedings then be the case was assumed That this would matters authority dispose Framers, No. power see The Federalist ing, with full ed.1961). (C. or other earry into execution In- and to Rossiter pp. of them 492-498 orders, judgments deed, to all give effect courts could enforce feder- wise to that state pre theretofore entered Article III of the presumed and decrees al law is Const., Art. Constitution, Okla. courts." which leaves to decessor 7(c). § to create lower federal decision whether constitu- at all. This historical and courts {17 from the Compact is derived assumption of concurrent state-court tional incorporates Okla It Statutes. is com- federal-law cases Act Tort Claims Governmental homa's respect missing pletely to tribal (GTCA) The district provisions.15 into its courts. subject matter thus have of Oklahoma courts arising under any claim Hicks, v. 533 U.S. Nevada omitted) (citation originates under (empha GTCA, including which one S.Ct. at 2313-2314 Compact. added). sis Hicks, 353, 121 533 U.S. In Nevada v. {19 made the Re- argument was (2001),16 L.Ed.2d 398 S.Ct. and the Government spondent tribal member authority of recognized the Supreme Court in Nevada v. Hicks that as amicus curiae jurisdic "general courts as courts court, juris- "general the tribal as court system acknowledged our further tion" and diction," civil had over his 1988 state courts sovereignty" of "dual against state officials. The Su- rights claim jurisdiction with federal have concurrent explaining that state preme disagreed, courts, Congressional enact specific absent general it can jurisdiction is because Levitt, Citing v. contrary. ment to the parties subjects litigation Tafflin all hear between 107 L.Ed.2d 4 distinguishing jurisdiction. within its stated: the Court courts, the Court stated: state and tribal the contention of re- turn next We clear, courts, it should be cannot be Tribal spondent and the Government sense, general jurisdiction courts of court, jurisdic- general as a court adjudiсative jurisdic- inherent for a tribe's tion, federal authority to entertain only at most over nonmembers is tion certainly true is claims under .... legislative jurisdiction as its broad 'general that state courts of Hicks, 367, 121 S.Ct. 533 U.S. at Nevada invoking federal stat- adjudicate cases can at 2314. utes, congressional §as absent 120 The Court concluded contrary. 'Under specification [our] regulate state officers execut con- system sovereignty, we have of dual law violations ing process related to state sistently courts have inher- held that state Act, 6(A)(1) provides: Tort Claims whichever Compact, Governmental Part 15. The paid, greater. tort claim shall be or the No award, any of the limit of in excess During Compact, the en- of this 1. the term liability. liability public insur- terprise shall maintain covering express purposes of ance for deciding whether a tribal 16. The Court was satisfying insurance shall tort claims. The adjudicate alleged jurisdiction to tortious had liability than Two Hun- limits of not less have executing a search of state wardens in conduct ($250,000.00) Fifty for Thousand Dollars dred land for evidence of an warrant on reservation any person Million Dollars one and Two member, by a tribal crime off-reservation ($2,000,000.00) for for one occurrence jurisdiction over the tribal court had whether personal injury, One Million Dollars for the tribal the state officials ($1,000,000.00) claims any one occurrence brought 42 U.S.C. under member's claims damage, of lia- property hereinafter the "limit 1983. corresponding under the bility", limits 456

outside the reservation is not essential to lations. Indian tribes retain their inherent self-government relations, tribal or internal offenders, power punish to tribal determine ie., "the to make laws and be ruled membership, regulate domestic rela Hicks, 364, them." Nevada v. 533 U.S. at members, among prescribe tions rules of 2313; Lee, 121 S.Ct. at see also Williams v. inheritance for members. Montana v. Unit 217, 220, 269, 271, 358 U.S. 79 S.Ct. 3 States, 544, 564, 1245, ed 450 U.S. 101 S.Ct. Conversely, L.Ed.2d 251. the Court held the (1981). pow 67 L.Ed.2d 493 Such State had considerable interest the execu ers refer to a sovereign Tribe's "inherent process, tion of it "and even when relates to powers," powers enjoys apart tribe 17 impairs Indian-fee lands it no more express provision by treaty from or statute. self-government tribe's than federal enforce Contractors, 438, v. A-1 Strate 520 U.S. 445- impairs ment of federal law govern 446, 1404, 1416, 117 S.Ct. 137 L.Ed.2d 661 ment." legisla Id. Because the tribe lacked (1997). power But this inherent does not authority regulate tive to the state officials' beyond necessary reach what protect to ability investigate off-reservation state law self-government or ‍​‌‌​‌​​‌‌‌‌‌‌​​​​​‌‌​​‌​​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‍to control internal violations, adjudicative it also lacked civil au Contractors, relations. See Strate v. A-1 thority Respondent's to hear claim that 459, 1416;18 Montana, U.S. at at S.Ct. officials in performing violated tribal law 564, 450 U.S. at 101 S.Ct. at 1257-58.19 A Moreover, their duties. thе Tribes could not power tribe's exercise of such is inconsistent identify any authority adjudicate Respon dependent with its status and cannot survive dent's 1988 claim. Tribal court express congressional without delegation does regulatory not exceed tribal power Montana, to the tribes. 450 U.S. at congressional "[albsent direction enlarging 564, 1245, citing Apache S.Ct. Mescalero jurisdiction...." tribal-court Strate v. A-1 Jones, 145, 148, Tribe v. 411 U.S. 93 S.Ct. Contractors, 438, 453, 520 U.S. 117 S.Ct. 1267, 1270, 36 L.Ed.2d 114 Williams 1404, (1997); 137 L.Ed.2d 661 see also Neva Lee, 217, 269, 358 U.S. 79 S.Ct. 3 L.Ed.2d Hicks, 353, 357-358, da v. 533 U.S. 121 S.Ct. (1959); Kagama, United States v. 2304, (2001). Thus, 150 L.Ed.2d 398 (1886); 6 S.Ct. 30 L.Ed. 228 general jurisdic tribal court is not a court of and McClanahan v. State Tax Commission tion. Its could be asserted Arizona, 411 U.S. involving only matters non-Indians when (1973). L.Ed.2d 129 their activities on Indian lands are activities may regulated by the Tribe. Montana, 122 In the United States VIL SOVEREIGN AND INTERESTS Supreme general Court announced a rule SOVEREIGN IMMUNITY addressing sovereign powers of a tribe. Generally, tribes have no over the In order to determine wheth activities or conduct of nonmembers of the er the state court assert general tribe. This rule contained over the two ex brought by tribe a case a non- will, Indian, ceptions which if present we must found to be consider the nature of the facts, give under particular power activities of this a tribe the plain non-Indian regulate tiff question these facts and the manner activities under its these powers activities affect the tribe's "in inherent over non-Indians ie., herent sovereignty," reservations, power its on their even on non-Indian fee self-govern and control its internal tribal re lands: them," Williams, U.S., "Fee lands" are lands which have been citing alien be ruled ated to non-Indians. See Strate v. A-1 Contrac S.Ct., at 271. tors, 438, 456, S.Ct. 137 L.Ed.2d 661 regulation It was held in Montana that the hunting fishing by nonmembers aof tribe on regulatory 18. It adjudi- was held that neither nor longer lands no owned the tribe bears no catory authority highway over the state accident relationship self-government clear to tribal or preserve at issue was needed to "the of internal relations. reservation Indians to make their own laws and

457 interests, the Montana sovereign taxation, the tribe's through regulate may tribe A treaty or statute or a federal means, exceptions, the activities other licensing, or powers. Tribe's enlarging the rela- enter consensual who nonmembers members, its tribe or tionships with Montana, tribes' retained 125 Under contracts, dealing, through commercial self-government involve powers inherent leases, arrangements. or other among of a members only the relations to power inherent may also retain A tribe "dependent It is consistent tribe. conduct over civil exercise tribes; necessarily inconsis it is status" reser- its lands within on the non-Indians their to determine their freedom tent with has threatens or conduct 'when that vation relations. "external integrity, political direct effect some newest Supreme Court's T26 Under оr security, the health the economic Bank v. Commerce Plains pronouncement, the tribe. welfare of Company, and Cattle Family Land Long at Montana, 101 S.Ct. at 450 U.S. — —, Inc., 128 S.Ct. U.S. 1258. (the (2008), tribal members L.Ed.2d fall activities If non-Indians' claim discrimination brought Longs) the tribe exceptions, Montana within (Plains). They against the bank court tribal under its sover activities regulate those may equal give not them Plains did alleged regu power to -Ifthe tribe eign powers. land which the buy fee certain opportunity Plaintiff late, the activities legislate, Longs at Plains. The from Longs leased may have civil non-members, also the tribe law which set a tribal tort enforce tempted to over jurisdiction, authority, or adjudicatory by nonmem fee lands the sale of limits on in tribal court. activities non-members' regulating the bers, extent of to the even regulate power However, without Bank could which the terms on substantive activities, may not the Tribe non-members' Acknowledging this was a for sale. offer it them tribal civil assert it argued that Longs regulation, form of Strate, 117 S.Ct. at 520 U.S. court. See by the first authorized was nevertheless Hicks, at 1413; Nevada v. at exception. Montana 2318; Plains Commerce at 121 S.Ct. Com Family Land and Cattle Long does Bank v. that Montana held 127 The Court — —, Inc., sale of non- regulate permit tribes to pany, not (see discussion, had particular land L.Ed.2d 457 fee land. case, ). many the instant land pertinent the tribe's being part As ceased infra immunity being Instead, from explained have it would also years tribe earlier. recently in reg- noted As we "permit in state court. progeny sued its Montana the res- Bahe, sovereignty that inside conduct of nonmember "It is the ulation Bittle sovereign private suit immunity from the tribe's implicates gives rise ervation sovere dignity of the protect the Plains, (empha- in order to 128S.Ct. interests." ign.2 stated: further original). The Court sis excep- its first expressly limits Montana whether must determine We nonmembers, ... the 'activities tion to within those come Cossey's activities regulated to the ex- be allowing these to as a by the tribe regulated self-gov- protect necessary 'to tent therefore, must, wheth consider entity. We internal rela- to control [and] ernment the definition within activities come er his purely virtually identical government, but was We P.3d 819. ¶ 22, 192 2008 OK States. the United casinos across suit in state commercial from held the tribe's employees agreed bound it to be the casino's waived when that most of was also held negli off including members and lived law a common customers were not state, laws of this shop liability. gence dram action for its reasons, it held For those reservation. question because sovereignty called into was not Bingo Casino v. In San Manuel simply engaged in internal tribe was (D.C.Cir.2007), NLRB, 475 F.3d territory members. governance of its operation Appeals held the Court of D.C. Circuit of self- attribute is not a traditional of a casino 458 (Montana

tions,'.... grant doеs not tribal regulatory authority without com regulatory tribe unlimited adjudicative mensurate consent. Tribal sovereignty, it authority over a Rather, nonmember. remembered, should be is 'a sovereignty Montana limits tribal outside the basic structure of the Constitu the first exception to regulation of the tion.' Lara, United 193, States v. 541 U.S. (internal activities of nonmembers' 212, quota- 1628, 124 S.Ct. 158L.Ed.2d 420 omitted; added)). emphasis tions (KENNEDY, J., concurring judgment). Plains, Rights The Bill of 128 S.Ct. at does apply to Indian tribes. Mayes, See Talton 376, 163 U.S. 28 The Court held that the sale of such 986, 16 S.Ct. 41 L.Ed. 196 land did not affect the sovereign Tribe's in- courts 'differ from traditional terests. The Court logic stated the of Mon- American courts in a number of significant tana : respects" Hicks, U.S., 533 at 121 [CJertain activities on non-Indian fee land (SOUTER, S.Ct. J., concurring). (say, a enterprise business employing trib members) al or certain (say, uses T30 regulation imposed commer on nonmem- bers "must cial development) may intrude on stem from the tribe's inherent the in ternal relations sovereign of the authority tribe or threaten to set conditions on en- tribal do, try, preserve self-rule. To they the extent self-government, tribal or con- such activities or land trol regulat Plains, uses be internal relations." 128 S.Ct. at Hicks, ed. supra, See Montana, at citing 121 S.Ct. at ("Tribal S.Ct. Plains, Without the logic of regulatory assertion of au thority over incorporates nonmembers must be connect general rule of Mon- ed to that right of the tana exceptions, Indians to and its Cossey make and all other their them"). own governed laws and be non-Indians would unknowingly Put way, another certain forms of themselves regulation and, non to tribal thus, behavior, member even on non-Indian fee without their consent land, may sufficiently merely affect entering tribe as to a casino in Indian Coun- try. Moreover, justify oversight. without Plains and Mon- While gen tribes erally tama, have no interest in regulating the non-Indians unwittingly could waive nonmembers, conduct of then, they may rights their to seek relief the state courts regulate nonmember behavior Oklahoma. impli governance cates tribal and internal re Citing Trading Atkinson Co. v. lations. Shirley, Plains, 128 added). S.Ct. at (emphasis L.Ed.2d 889 the Plains Court re 1 29 The Plains Court stated reg that the ferred to general proposition under Mon- ulations it approved had under Montana "all tama that the inherent sovereign powers of directly flow from these limited sovereign an Indian tribe do not extend to the activities interests." 128 However, S.Ct. at 2723.22 of nonmembers of the tribe. "[Elfforts the Court held that "regulation tribe regulate nonmembers, especially on sale of land, non-Indian fee above, unlike the land, non-Indian fee are (presumptively inval justified cannot reference to the tribe's id," Atkinson, supra, at 121 S.Ct. 1825. sovereign interests." 128 S.Ct. at 2728. The The burden rests on the tribe to establish land already had been alienated from the one of exceptions general Montana's trust; it being had ceased tribal land. rule that would allow аn extension of tribal Id. stated, The Court at 128 S.Ct. at 2724: regulate nonmembers on non- Not only is regulation of fee land sale Atkinson, Indian fee U.S., land. beyond the Plains, 121 S.Ct. 1825." tribe's powers, it 128 S.Ct. at 2720.

runs the risk of subjecting nonmembers to present case, In the we find the Tribe has 22. The previous Court enumerated entry cases to tribal licensing requirements, land via which it held the exceptions applied Montana hunting regulations, and taxation. 128 S.Ct. at regulation approved by was the Court. (Citations omitted). These power include the to set conditions on

459 of the membership status It in fee. is it falls establishing that its burden not met the status of real unconsenting party, not exceptions. of Montana's one within juris primary as the that counts property, the status of also discussed The Court I 32 dictional fact. regula to the it related as land at issue In the land. activity on nonmember tion of 375-376, Hicks, 353, 381- 533 U.S. Nevada land, i.e., had land which Plains, was fee this (SOUTER, 121 S.Ct. lands from tribal alienated previously been following the J., In a footnote concurring). approv The Court reservation. within the explained that excerpt Justice Souter above concur Souter's from Justice quoted ingly proper to a irrelevant is not land status Hicks, stating, in Nevada v. opinion ring Montana, not only that it is application as 'insofar relevant the land is "The status of determinative. ... Montana's application it on bears Thus, of the activi regulation T it is Hicks, Nevada v. case."" exceptions [this] (SOUTER, J., land, than rather on 121S.Ct. ties of non-members at 533 U.S. land, the Plains which specif not the resale Although did concurring). Plains key regard point found to be Justice Souter's further from ically quote 128 S.Ct. instrue- interests. it to be tribe's opinion, we find concurring ease, fact, that a non-Indian Court stated in which instant at 2724. tive in the pro injured trust land. on was it defendant cases has found previous its none of regulate the vides, tribe to part: authorized a Montana "Rather, our fee land. of non-Indian presumption sale applied Montana always non conduct have concerned cases to nonmember Montana Plains, reservation; I would the land." conduct on land within member on fee here, Hicks, U.S., where, a nonmember at citing it as apply also S.Ct. omitted). land, (citations I would or trust acts on tribal at 2309-10 with- that land status explicit it thus make jurisdic- primary not a in a reservation ACTIVITIES VIII. COSSEY'S it only as fact, insofar is relevant but tional IN INDIAN COUNTRY of Mon- application of one on bears particular case.... exceptions to a tama's [ case, the land on which present 34 In the lands," but not "fee is located is the casino Strate, a tribe's it is undeniable After As the Tribe.23 in trust" for "land held ad- jurisdiction to civil remaining inherent above, qualifies as "Indian land stated of acts arising out claims judieate civil However, the IGRA. purposes of land" for depends on a reservation committed the land does in the status of difference indi of the the character first instance on rule. out of the Montana this case not take claimed, jurisdiction is over whom vidual premises casino Cossey was on the he the soil on which the title to not on such, the Tribe the Tribe. As an invitee of Montana principle on which acted. care (like duty to exercise reasonable had the Oliphant[ v. decided and Strate were Tribe, condi reasonably safe premises keep the Suquamish Indian Cossey conditions which and to warn tion before ] L.Ed.2d 209 S.Ct. traps, dangers, of hidden in the nature relationships, were them) to human first looks v. Aramark Martin pitfalls. See snares records, make no and it should land Services, Inc., How 92 P.3d 96. 2004 OK acts committed per se whether difference compensate ever, obligation to the Tribe's tribal land or occurred on a reservation proof, upon proper injuries, Cossey for his individual by a nonmember owned on land only whether the proceedings, we consider alleged the casino is located Cossey ques- reservation, competent jurisdiction, a making Com- is a court outside the on land alleged held the land is Tribe pact invalid. The can the trial court remand, of law. tion Upon government devel- the federal are further appropriately "in trust" as the facts rule Tribe, of "In- the definition comes within oped. point At this under the IGRA. dian lands" has not dispute by been in parties.24 ry powers these adjudicate states dispute centers around rights whether the of their citizens within their borders. state court has over his claim. 139 The order of the trial court denying the Tribe's 136 We motion to Cossey's examine whether dismiss is activi- affirmed. ie., ty, This case is visiting the remanded to casino as an the trial invitee on court for lands, Indian activity is an further proceedings in which the accordance Tribe with the regulate expressed can views under opinion. its "inherent this sovereign interests." If such activity is one which €40 The remaining arguments raised comes within the exceptions, Montana parties non-persuasive are and will not regulate Tribe can it and adjudi- assume civil be considered. catory jurisdiction over him in tribal court. PART, AFFIRMED IN REVERSED IN Cossey T37 entered into no consensual PART, AND REMANDED. relationship with the "through Tribe com- contracts, mercial dealing, leases, or other TAYLOR,V.C.J., OPALA,WATT, arrangements" by entering the casino as a WINCHESTER, JJ., concur. customer. represents a con- COLBERT, J., concurring specially. relationship sensual between the Tribe and State, Cossey but party was not a to it. EDMONDSON, C.J., KAUGER, J., concur Moreover, presence his at the casino on res- part, part. dissent in ervation lands was not conduct which HARGRAVE,REIF, JJ., dissent. "threatens or has some direct effect on the political integrity, security, economic TAYLOR,V.C.J., OPALA, J., with whom the health or welfare of the tribe." See joins, concurring: Montana, U.S. 101 S.Ct. at 1258. join 1 1 I majority opinion. I write Neither exception Montana helps the Tribe separately to contribute analysis further of in this case. the federal and state statutes authorizing the state-tribal gaming compact and to address

IX. CONCLUSION positions taken in dissenting opinion. 138 The Oklahoma district court is a Today 1) T2 we decide that the state dis competent "court of jurisdiction" to hear trict court is a court competent jurisdiction of Cossey's tort claim. The Tribe's under the gaming compact between the State interests are not implicated so require as to of 2) Oklahoma Nation, and the Cherokee tribal court exceptions under the Cherokee Nation's sovereign interests are Montana, supra. Cossey's right implicated not suit, 3) in to seek Cossey's redress in the Oklahoma district court right to seek redress in guaran state court is guaranteed by our Moreover, Constitution. teed the state constitution. Relying upon the United Supreme States upheld law, well-established state we construe "court Montana it, and the cases following indicat- jurisdiction" the tribal ing the Court's continued recognition of the gaming compact to include the state district need protect the sovereign interests of court. Relying upon state jurisp and federal tribes, while acknowledging plena- rudence,1 we determine Public Law 280 is 24. We opinion offer no validity as to the causes arising of action country in Indian be Cossey's injuries claim for opinion. Upon tween Indians parties, or to which Indians are remand, adjudication pro- of the claim will 1322). codified at 25 U.S.C. Washington v. ceed in the trial court. Bands and Tribes the Yakima Confederated Indian Nation, 99 S.Ct. 740, 58 1. Lewis v. Sax and Fox L.Ed.2d 740 Tribe, 1994 OK 20, 896 requirements addressed the P.2d 503; Okla. Tax Comm'n Yakima, Public Law 280. Band the U.S. Su Citizen preme Potawatomi Indian Tribe, 498 Court noted U.S. 505, 111 S.Ct. enabling acts for 905, 112 L.Ed.2d 1112 eight states, Arizona, Montana, New Mexico, North Dakota, Washington, South Dakota, Utah, (1953)(wherein 2. 67 Stat. 588 Congress Oklahoma, consent required jurisdic disclaimer of assumption ed to state over civil tion over Indian lands in their state constitutions. into the statu that enter Indian tribes for all to the exercise impediment compact would be consistent tory model determine also jurisdiction. We court Act, 25 U.S.C. Gaming Regulatory the Indian is consis of state exercise statutory principles of and federal law.3 §§ federal tent with struction.4 con {3 of com interprets "court majority the Indian enacted T4 meaning of within jurisdiction" petent ruling in response Act Regulatory Nation. Because the Cherokee compact with Indi Mission Band v. Cabazon statutory only one and offers the California ans, 202, L.Ed.2d 94 107 S.Ct. 480 U.S. Indian compact to all Oklahoma model tribal (1987). that an Indian decided 244 Cabazon that the and hold tribes, go further I would an Indian bingo games on may operate tribe competent court of is a court state district permits in a state that located reservation in the Model used that term is jurisdiction as law 3A O.S. and that state any purpose codified at Gaming Compact gaming for Tribal games played pre bingo to apply does though Indian-law § Even 281. Supp.2004, coming onto the dominantly by non-Indians case-by-case res require often disputes most to the Cabae- The dissent Indian reservation. tribal individualized light of the olution legiti has a urged that a state laws, opinion treaties, construing zon cireumstances, and in Indian interest law enforcement mate jurisdiction" "court of phrase Contractors, tribe); Strate v. A-1 welfare of the portions en quotes decision The Yakima 1404, 438, Montana, Dakotas, 661 S.Ct. 137 L.Ed.2d U.S. 117 and Wash 520 abling act any (1997) (pronouncing tribal court that required to disclaim ington the states that authority legislative public greater lands unappropriated than the tribe's right is no and title to enlarging acknowledge congressional that tribal and to direction lands absent and to Indian Hicks, absolute 533 U.S. jurisdiction); shall remain Nevada v. lands Indian (2001)(de 2304, 353, Congress L.Ed.2d 398 150 until 121 S.Ct. and control States. extinguished the United general has been courts of ciding title courts are not that tribal 480-481, lan S.Ct. at 752. The 99 U.S. at in the 439 tribal courts included jurisdiction nor are is different. constitution guage in Oklahoma's assumption of con constitutional and historical unappropriated title to all and adjudicate disclaims to state-court current acknowledges lands and public States); and Indian lands arising the United under laws of claims public any lands shall "until title to that Family Long Land Bank v. Plains Commerce States, extinguished the United have been — 2709, —, Company, 128 S.Ct. U.S. Cattle jurisdic remain to be and same shall (2008) (teaching laws that tribal 171 L.Ed.2d tion, United States." disposal, and control of the imposed a nonmem regulations on Constitu I of the Oklahoma 3 of Article Section consented, ex has only ber if the nonmember opinion majority in full in the tion is set out actions, regulation and then the pressly his or provision dis 7. This constitutional footnote inherent the tribe's stem from must unappropri title to claims entry authority into to set conditions title to Indian it disclaims public lands and ated self-government, or to country, preserve jurisdiction over not disclaim but it does lands affairs). internal control recog Court failed to The Yakima Indian lands. the Oklahoma's constitu difference in nize this statutory construction federal rules of 4. Basic Notwithstanding, language. tional its does not define provide where a statute that recognized Oklahoma followed Yakima has give ordi terms their court will terms, purposes disclaimer-of-jurisdiction state for as a meaning, U.S., v. Smith and natural nary Authority Housing v. 280. Ahkboah Public Law 2054, 124 L.Ed.2d 2050, 113 S.Ct. 223, 228, U.S. P.2d 20, OK Indians, Kiowa Tribe of (1993); under if a is not commonly phrase into the court will stood, contempora inquire Roadway Express, understanding, Inc. v. neous opinion today's discussed federal cases 3. The 100 S.Ct. 752, 759, Piper, U.S. States, 450 v. United include Montana law the common or L.Ed.2d 488 (1981)(establish L.Ed.2d 493 1245, 67 101 S.Ct. U.S., 370 U.S. meaning Gilbert phrase, have no tribes ing general rule that Indian 1402, 8 L.Ed.2d 655, 82 S.Ct. nonmem authority or conduct of over activities (1962); ambiguous will terms rule that and the authority to except has a tribe bers applies where of Indians in favor be construed a consensual regulate who has a nonmember treaty States is language with the United of a (2) a relationship tribe with the tribe guide mandatory being interpreted, it is not a but a non adjudicatory over conduct Nation v. interpreting Chickasaw statutes. for country conduct threat if the in Indian member 535- political effect on the States, 534 some direct United ens or has 151 L.Ed.2d security, the health or integrity, the economic gaming that caters non-Indians where T6 The compact tribal-state may allocate Congress has not set aside the responsibility state's inter gaming for reg standards and through ests regulation federal ulation between of Indian the Indian tribe and the state, gaming. provide ruling impelled licensing, specify Cabazon appli Con gress cation of legislate tribal or state criminal S.Rep. the area. and civil No. laws, allocate reprinted in 1988 law p. jurisdiction, U.S.C.C.A.N. enforcement authorize state assessments necessary to de fer costs of regulation, and authorize Congress T5 had problems considered the taxation comparable to state taxation. and benefits of in committee Id. States that allow class hearings for at years least three before Ca- III gaming purpose by any person, bazon. enacted Public Law 100- organization entity required are negoti 446, finding was a means of ate the terms of a compact tribal-state economic development for the tribes good faith requested when by an Indian promote would self-sufficiency 2710(d)(B)(A). tribe. Id. An Indian tribe strengthen governments. tribal 102 Stat. entering into a compact tribal-state retains (1988). Public legalized Law 100-446 the regulate "to class III gaming on its gaming in country, Indian 18 U.S.C. Indian lands concurrently with the State" but 1166-1168, §§ within the reg framework for regulation with, cannot be "inconsistent ulating gaming in Indian country in the Indi or stringent than, less the State laws and an Gaming Regulatory (IGRA), Act 25 U.S.C. regulations applicable by made any Tribal- §§ 2701-2722. IGRA attempted compact." 2710(d)(5). State § to balance Id. Indian federal, tribal gaming and state interests in must be Indi conducted consistent with IGRA, an gaming through system or joint govern of state law will regulati the Indian on.5 gaming.6 IGRA § established three U.S.C. 1166. classes of In dian gaming. 2703(6), $Id. As T7 Rather than set aside state interests in (social to class I gaming games prizes with of Indian-country gaming catering activities to minimal value and tribal ceremonial or cele visitors, state's residents and IGRA au brating games), regulation tribal is exclusive. thorizes the extension of state law over class 2710(a). § Id. As to gaming class II (bingo III gaming activities country.7 Indian games played cards, with pull-tabs, lotto, Rather than set aside rights of Okla punch boards and games other similar to homa's residents and visitors to state-law bingo games played cards), with regu tribal protections they patronize while an Indian subject lation is approval, to monitoring, and casino, IGRA allows patrons the casino to approval continued of a federal Indian gam retain their protections state-law provided as ing commission. Id. As to III gaming class in the compact. tribal-state There is no lan (all gambling not included in Class I or Class guage in IGRA prohibits that the extension I1), regulation tribal is defined and confined of state court over a tort claim by a compact tribal-state with limited federal arising out of activity at a tribal casino 2710(d). oversight. § Id. the Indian tribe or its casino. Fur provided 5. statutory IGRA opera- basis for the manner and to the same extent elsewhere in the regulation tion and gaming by Indian tribes state; left with the United States to and for adoption of federal standards for prosecute violations of gambling the state laws gaming on Indian lands, § 25 U.S.C. 2702; cre- unless the Indian jurisdic- tribe consents to state ating the Gaming National Commission tion; excepted gaming compli- conducted in Interior, Department within the § id. to ance with IGRA from imposition the blanket gaming monitor class approve II and to gambling state law. management ordinances and tribal contracts for class II gaming, class § III id. Congress' 7. It was intent in IGRA to make use of establishing a compact system. tribal-state Id. existing regulatory systems state because § 2710. adequate there was no regulatory system federal 6. imposed law, U.S.C. gambling gaming. 100-446, state for S$.Rep. class III No. at 13- including licensing, regulation, prohibition in 1988 reprinted U.S.C.C.A.N. 3071, 3083- gambling, country into Indian in the same 84. immunity governmental political subdivisions' finds, no lan there is ther, majority as 6(A)(8) gaming Part claims. for tort implicitly explicitly that in IGRA guage sov- provides that tribal specifically compact non- extends by casi- not be invoked will ereign patrons. consenting casino liability limits. up to the insurers no 712, Legislative Question No. T8 State no- compact provides for gaming T 10 The Gam- the State-Tribal No. Referendum compliance tort claims tice of O.8.Supp.2004, Act, at 8A ing codified (TCA) enterprise for or the tribal agency by a vote of approved was §§ It also or denial. approval investigation The State- November people on consents the tribe declares specifically operation Gaming Act authorizes Tribal 6(A)(2) states tracks and Part horse race tort claims. machines at to suit on gaming limited to on a consents suit that the "tribe Tribal provides a Model Indian lands. on subject claims respect to tort which basis compact) (gaming in this subsection" set forth the limitations operate the into and may enter tribes "Injo consents to suit and further states Indian lands gaming machines claims, any other or as Finance, respect to tort the with of State oversight by the Office (SCA). shаll be deemed against the tribe claims agency compliance designated except Compact, made under this to have been offered compact is Id. B and C of this in subsections provided Oklahoma, if ace- Indian tribes "(al 6(A)(9) judicial Part declares Part." compact be- cepted, constitutes a tort arising from cause proceeding accepting tribe tween this state in accordance may be maintained action claim any further without of IGRA purposes Id. C limitations of subsection of Oklahoma. to the of the State on behalf circumstances. specified part" this § 280. of far gaming compact is language in the This In- recognizes an compact gaming The T9 deny that it tribe to plain for an Indian too Part liability tort claims. for tribe's dian Indian-country arising on to suit consents 6(A)(1) compact requires the gaming of at its casino. tort claims tribe or as the enterprise, defined Indian for the compact provides gaming T 11 The 3(18), public to maintain in Part ageney tribal gam III to monitor class of State of Oklahoma express purpose for the liability insurance 8(C), in the At Part through the SCA.8 claims satisfying tort covering and ing casinos the TCA "all required report to to is the SCA 250,000 any dollars for minimum amounts information re pertinent, nonconfidential any one dollars for two million person, one federal, state, or any violation of garding mil- injury, and one personal for occurrence or this laws, regulations, the rules and prop- for any occurrence for one lion dollars 8(C) effectively acknowl Part Compact." limits un- corresponding damage or the erty activity relat Act, applies law to edges that state Tort Claims der the Governmental in Indian operations gaming III ed to class greater. The Governmental is whichever 0.$.2001, indicating Act, §§ is language is no country, and there Tort Claims fur law is Application of state otherwise.9 and its that waives the state's law this state's gaming types new would oversee the sion "monitoring" in describ- uses Likewise, IGRA portion require that a Gaming It would machines. ing powers of the National paid gaming money wagered on such regulates the trib- and oversees Commission that money go to would Some of the gaming. the state. 25 U.S.C. regulation class II al money purses horse races. Some for 2706(b). The meas- go to the horse race tracks. would legislative referendum Title in the compact 9. The Ballot provides which Indi- a model ure also Gaming Act of State-Tribal proposing operate enactment may and then enter into an tribes not law would that Oklahoma model did not indicate lands. The gaming machines on Indian gaming. fol- Indian-country It read as apply regulatory compact provides controls compact. The Office gaming lows: authorized authority to would have the Finance of State creatеs the State-Tribal This measure money gaming by The the tribes. gaming this types oversee would allow some Act. go gaming to horse race wagered would in this race tracks at some horse machines races, tracks, the tribes. purses horse Racing Commis- Oklahoma Horse state. The 8(D) acknowledged ther in Part which limits to authorize the regulate state to the tribe's monitoring the SCA's regulate so as not to government, TCA, including the or to inter- government the tribe's or interfere with the any way fere in with the tribe's selection of governmental tribe's selection of its officers. governmental officers, its including members But, of the TCA." it does not remove the T dissenting 12 The opinion, at implic least gaming compact general from the itly, statutory gaming denies that the compact ais law laws of the State of Oklahoma. Oklahoma. compact part legis of a lative referendum that approved by was {14 The dissent characterizes the Indian Legislature, signed by the Gover tribe's consent to suit aas waiver of tribal nor, approved by people, vote of the immunity. According dissent, to this both Indian registered and non-Indian Okla tribe, in the gaming compact, waived homa voters. through Onee enacted the ex immunity, but the tribe did ercise legislative of this power, state's agree allocate civil model class III gaming compact is a state state for tort claims. compact statute-a law this state. The terms of speak does not in terms waiver of tribal compact became fixed immunity.11 The gaming compact provides, statute and negotiable.10 are not precise words, that the Indian tribe "con 113 The dissent statutory refers to the suit," 6(A)(2), sents "judicial Part in a gaming compact agreement as a mutual rath- proceeding arising cause from a tort er than a statute because of the recital claim," 6(A)(9), at Part "in a compe court of 2(8) Part that the "state and the tribe main- jurisdiction," 6(C)(1). tent at Part This con tain a government-to-government relation- sent to suit effectively designates that both ship, and help will foster mutu- the state and federal courts exercise al respect and understanding among Indians their over tort claims and non-Indians." This recital undeniably . Indian tribe. This is so because of the well- expresses legislative respect intent to anoth- established meaning of "court 2(1) er recital in Part the "tribe is a jurisdiction." federally recognized government pos- {15 sessing sovereign powers rights "Competent jurisdiction" and the of usually re- self-government." It also undeniably fers to a sup- subject-matter court's jurisdiction, ports 8(D) the disclaimer in Part that its authority given to hear a type case, of "[nlothing in this Compact shall is, be deemed that power the court-by vested the the portion The money state's gam- of the from the liability of complies if the claim with the limited ing go authorized this act would provisions for treat- consent of subsection C of this Part." disorders, compulsive ment of gambling gaming compact the The does not language contain Revolving Education Reform Fund and recognize for col- that would an Indian tribe is clothed lege scholarships. with sovereignty gives inherent tribal that rise to Okla.Sess.Laws, 2004 immunity ch. 316. tribal suit engages from when it gambling-related activities. negotiated 10. Oklahoma the terms of the 2000, Congress In expressed opinion its on compact with the negotia- Indian tribes but those immunity Reacting contracts. to the preserved tions have not been history as the of decision in Kiowa Tribe Oklahoma v. of Manufac statutory gaming compact. Oklahoma has Inc., turing 751, Technologies, 523 U.S. 118 S.Ct. system no preserving legislative history like ‍​‌‌​‌​​‌‌‌‌‌‌​​​​​‌‌​​‌​​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‍1700, (1998), 140 L.Ed.2d Congress 981 amend congressional system federal receiving of in- ed 25 require U.S.C. 81 to Secretary formation and recommendations submitted in approve Interior to refuse to an Indian land- congressional hearings reporting on bills related contract that does not disclose the tribe's legislative history such as the of Public Law 100- sovereign claim to tribal immunity. Pub.L. 106- Rep 446 in S. reprinted No. in 1988 ~ 179 Report 114 Stat. 46. Senate 106- U.S.C.C.A.N. 150 indicates that did not at tempt to divergent reconcile views of tribal compact mentions immunity tribal sover- expressed majority opinion in the eign 6(A)(3), immunity in requiring Part dissenting that the opinion. reported, The Senate at public Tribe's liability 9, policy insurance p. to "in- that "Indian tribes contracting and their clude an providing endorsement partners the insurer generally are questions best served if of not invoke immunity are addressed, resolved, or at least any connection with disclosedwhen a contract is executed." claim made within the limit wrong as a "tort." An action classifying a pass upon the of its ereation-to law of a damages is an essential characteristic Neff, U.S. Pennoyer v. of the suit. matter A.N.O.,, (1878); Burke, 229, 733, In re 714, 24 L.Ed. 565 v. "tort." United States 235, 1867, 1871, 646, 119 L.Ed.2d 34 112 S.Ct. 33, ¶ 19, 649. Both 91 P.3d 2004 OK (1992). jurisprudence, a tort is "a phrase federal utilize the laws and state federal contract, jurisdiction. competent than a of wrong, other of breach "court civil remedy in provide the court will jurisdiction" as for which competent phrase "court Id, damages." form of an action for long been con in federal statutes used Similar 112 S.Ct. at 1870-1871. courts. U.S. and state to mean federal strued Co., Tort Governmental Claims Mining ly, the Oklahoma v. Portland Gold Blackburn legal wrong, indepen "tort" as "a 571, 579, 44 L.Ed. 276 Act defines 20 S.Ct. U.S. Rutter, contract, duty involving violation of a Mining dent (1900); Co. Shoshone otherwise, L.Ed. by general result imposed law authorities, person, in a association phrase ing loss these Under of an act proximate as the result gam corporation in the jurisdiction" "court of political of a subdivision or the or omission designation ing compact state acting seope employee or an within Accordingly, the effect of the courts. federal 152(11). O.S.2001, § employment." 51 competentjurisdiction" is to of phrase "court 6(D) withhold the Nothing in Part would adjudication tort claims allocate damages from law "tort" action for common operation tribes related against Indian injured at an Indian casino. Notwith to the concurrent those gaming activities of tribal advocate that standing, seems to and federal courts dissent jurisdiction of the state U.S.C.2001, system of tort agreed Indian tribe accordance (vii). liability a common law that does not include damages. tort suit for {16 position takes the also The dissent expressly gaming compact does relies on Part 9-"This €18 The dissent tort law into the extend tribal, federal or state land compact not alter shall 6(D) reflects and that Part Nation Cherokee jurisdiction." adjudicatory civil or eriminal applicable tort law is intent proposition that the tribal court is the points in foot- the dissent out tort law. As only jurisdiction over the Indian court with 6(D) collecting dam- Part deals with note tribal land. When the activity tribe's its claim when the Indian tribe ages on a tort to send Legislature passed the referendum required minimum maintain the has failed to GamingAct to a vote the State-Tribal 6(D) requires Part liability insurance. public overarching principles three people the claimant tribe to inform both the Indian a the civil tribal determined hearing a any notice and the state of injury alleged to a non- tortious court might be any award that claim "to cover 1) ju country: in Indian tribal-member paragraph in the limits set forth made within tribal court does not extend risdiction 6(D) Part is part." A this 1 subsection onto tribal land to non-members who come provision. not a choice-of-substantive-tort-law necessary preserve to except as remedy collecting for post-judgment It is a right self-governance or its Indian tribe's an against a tort claim money judgment on relations, to control its internal Mon right Indian tribe. uninsured U.S., v. 450 U.S. at 101 S.Ct. tana 2) 1258-1259; tribal courts are not courts of compensate damages 17 The Hicks, jurisdiction, general Nevada injuries by a violation plaintiff for caused 3) (2001), at 2304 for U.S. at S.Ct. legal rights is the basis of his or her another); Const., VIII, brings against 15 U.S.C. 1(requiring party a suit § that art. 12. See Okla. (providing § over civil ac- automatically for be sus- shall elected state officers racing involving horse in the fed- being guilty tion interstate upon of a pended their declared or the off- in the host state competent jurisdiction); eral district felony by a court of 0.$.2001, 152(1) (the that of state governmental track state concurrent with tort competent jurisdiction located in the defining proceeding in a court of "action" as a law claims state). jurisdiction by host state or off-track competent which one court of attempt an Indian tribe's to exercise civil through cised compact system. tribal-statе authority over activities of 2710(d). nonmembers 25 U.S.C. In Oklahoma's statuto presumptively ry model invalid. Trading Atkinson tribal compact, the Indian Co., Shirley, Inc. v. 532 U.S. 659 121 tribes consent to be sued damages result 1825, 1835, (2001). S.Ct. 149 L.Ed.2d 889 ing from a tribe's activity tortious related to language The in safeguards Part 9 these operation gambling of its casino and principles, Indian law but it does not dimin nothing in compact alters the common unequivocal ish the consent to suit on a tort rights law and remedies available to casino against claim the Indian tribe or its casino patrons under Oklahoma law. competent court of in Part 6. 1 20 The issue today decided upon touches {19 Finally, argues dissent rights and remedies of patrons casino gaming compact solely deals liability with the and the accountability operators. of casino of the Indian tribe and that it does not alter Indian casinos vigorously are marketed to rights or private remedies parties. between patrons non-Indian in this surrounding This implies contention patrons that casino states. In August publication, of 2007 retain their common law rights tort and rem reported Cherokee Nation 1992 it had edies and that Oklahoma's tort law follows gaming facility one employees; persons into country governs Indian skyrocketed those number to nine gambling-related activity persons of all gaming facilities with more than two thou- country entities except the Indian employees sand and at least ten gaming- tribe. This essentially argues contention facility-related clubs, golf hotels and conven- damages from caused ience stores with more than one thousand tortious gambling-related activities. employees. These are the numbers for only Application of the doctrine of tribal immunity one of the thirty more than federally recog- requires pre-emption analysis against a nized Indian tribes Oklahoma. impor- backdrop of a tradition of tribal sovereignty tance of this issue cannot be underestimated. gives rise to immunity. Rice v. majority opinion properly construes Rehner, 103 S.Ct. competent jurisdiction" "court of as used in L.Ed.2d 961 There was no class III our statute under state law and consistent gambling in Indian country until ruling with the federal law. Oklahoma courts are v. Cabazon Band Mission Indi California competent adjudicate tort claims ans, 94 L.Ed.2d Indian tribes under the state Model Tribal and the enactment of IGRA. Gaming Compact and the federal Just as Rice v. Rehner concluded that there Gaming Regulatory Act did not pre-empt is no tradition of tribal sovereignty gov state law. erning activity related to beverages, alcoholic there is no tradition of tribal sovereignty in COLBERT, J., concurring specially. governing activity related to gam class III bling. Both are vice activities traditionally 1 1 I concur in today's pronouncement that controlled through the police states' power the District Court of the State of Oklahoma protection public health and is "a court of jurisdiction," as that welfare. See Greater New Orleans Broad term is used in gaming compact between casting States, Ass'n v. 173, United 527 U.S. the Cherokee Nation and the State of Okla- 182, 1923, 1929, 119 S.Ct. 144 L.Ed.2d 161 homa, adjudication patron's of a claim (1999); Artichoke Joe's Grand California against enterprise personal in- Norton, (9th Casino v. 353 F.3d 712 Cir. jury suffered on premises of the tribe's

2003); ¶ Bahe, 10, Bittle v. 35, 15, 2008 OK n. operated casino on tribal land. I sepa- write 810, 823, 192 P.3d n. 15. Similar to the rately to articulate the rationale underlying authority delegated to the states and the my agreement with that result. Indian tribes over beverages alcoholic in 18 1161, § U.S.C. delegated IGRA authority 21 As a matter law, of black-letter "Indian over III gaming class in Indian country to tribes are immune from lawsuit or court the states and the tribes Indian to be exer process in both state and federal court unless

467 the tribe and compact between tribal-state the tribe the suit or authorized 'Congress has Cohen, Act." pursuant Cohen the state immunity.'" Felix S. its has waived Law, (citing 25 U.S.C. at Federal Indian Handbook Handbook Cohen's of eds., added). Lexis (Nell 2710(d)(7)(ii)) et al. Jessup Newton (emphasis Although § ed.2005)[herein sovereign abrogated rev. has not Congress Matthew Bender Nexis (quoting Kiowa 2005 Handbook after patron injuries Cohen immunity Indian tribes for of Inc., 523 U.S. Technologies, Mfg. in Indian occurring Tribe v. tribe-owned casinos at 1700, L.Ed.2d 981 754, 751, 118 S.Ct. authorized the states and country, it has Tribes (1998)); Three See also compacts. gaming into IGRA tribes to enter Affiliated Eng'g, v. Wold Reservation Fort Berthold variety compacts and lists authorizes such 890-891, 106 S.Ct. 476 U.S. subjects negotiated, includ Dep't (1986); Puyallup Tribe v. L.Ed.2d directly re "any subjects that are ing other Game, 97 S.Ct. 433 U.S. gaming activities." operation of lated to the (1977). A tribe's sover 53 L.Ed.2d 2710(d)(B8)(C)(vii). As New 25 U.S.C. as commercial immunity to its eign extends in Doe v. Supreme Court determined Mexico Kiowa activities governmental well as Pueblo, 269, 154 P.3d 141 N.M. Santa Clara "Trib Tribe, at 118S.Ct. 523 U.S. (2007), grant of was IGRA's immunity a tribal cor protects al permit partial a tribe's waiver of sufficient to created under by a tribe and poration owned parties sovereign immunity permit and to immu laws, express waiver own absent its jurisdiction by pro to establish concurrent abroga Congressional nity by the tribe or "pro personal injury claims could viding that Corp., Tribal Ent. Wright v. Colville tion." ... in a binding arbitration ceed either 147 P.3d 159 Wash.2d by competent jurisdiction" and defin court of Tribe, 523 U.S. (2006)(citing Kiowa jurisdiction" ing a "court of 1700). judicial State courts. Id. at 647. the New include state members tribes and tribal Indian "expressly agreed compact, the Mexico tribe in the precluded country generally Indian apply personal tort law would that state treaty express authorization absence arising on injury [tribal] casinos suits at 521. 2005Handbook by Congress. Cohen Id. at 648 n. 8. lands." aside country 'all lands set includes "Indian of tribal envisioned, authorized, means for the residence whatever "Congress T4 together protection, federal Indians under shifting, if to contract for tribes " allotments.' Indian trust and restricted wished, larger, global much they part of a v. Sac Tax Comm'n (quoting at 520 Okla. Id. complex neces issues settlement was Nation, 114, 125, 113 S.Ct. Fox & Gaming work." Id. at sary to make tribal (1993)). 1985,124L.Ed.2d 30 however, merely Congress, authorized compacting parties re provisions, Indian Congress enacted the T3 making such refrain from mained free to (IGRA), §§ 2701- Act 25 U.S.C. Regulatory "Nothing in gaming compact. choices in a provide 2721; "to 1166-1168 18 U.S.C. negotiate required the tribes IGRA operation of statutory basis for the prevent subject, anything IGRA nor does promoting a means of tribes as Therefore, doing Id. at 657. from so." them self-sufficiency, development, tribal economic of Okla any authority for the District Court 25 U.S.C. strong governments." 2702(1). against a tribal abro a suit "partially homa to entertain injury patron's must be enterprise for a in the Indian tribes gated the au congressionally in the terms of a Act, only found Gaming Regulatory but pursu into gaming compact entered thorized enjoin a III Class brought states suits ant to IGRA.1 in violation of activity conducted pursuant to 25 U.S.C. regulatory jurisdiction jurisdiction state court is no basis for 1. There provisions of the 1322. outside the over this matter cited cases patron matter has The in this 280 Compact. not a Public Law Oklahoma is from the tribal courts civil asserts, not consented to which, he and the tribe has state prohibit exercising jurisdiction over a nonmember pa- 468 "A compact negotiated 15 is a agreement state civil adjudicatory jurisdic- or criminal governments."

between two Coker tion." parties Had the provision made no for Handbook at 589 n. Although this Com patron claims, tort over such pact's provisions are those of gam the model claims enterprise the tribal would ing compact, codified in the have exclusively Oklahoma Stat remained juris- within the utes, Compact the is not derived diction of the from state tribal court and the claim law. would Gaming Compact, See Model Tribal to sovereign the tribe's 3A, Okla. Stat. tit. (Supp.2004). immunity However, is defense. parties the contract, subject "a to appli construction and specific made provisions extensive for cation in claims in Part Compact accordance with 6 of the its terms." and in Texas doing jurisdiction, so allocated only Mexico, but 124, as to v. New 2279, 107 S.Ct. (1987). the third-party tort patrons. 96 L.Ed.2d claims of inAs issue of construction, contract "[a] contract must be By Compact, this the tribe waived its interpreted give so as to effect to the mutual liability patron from tort parties, intention of the as it existed at the claims, only specified but liability limits of time of contracting, far so as the same is coverage insurance or the "corresponding ascertainable and lawful." Okla. Stat. tit. limits under [Oklahoma's] Governmental Tort § 152 "A precept fundamental [GTCA, Claims Act Okla. Stat. tit. contract law in Oklahoma is that the law will (2001 §§ 151-200 Supp.2007) & ] whichever is not make a better contract than parties the greater." By simply mirroring liability themselves Roye Realty entered." & Devel limits and certain provisions other oping, Watson, 93, ¶ Inc. v. 1996 OK 2 GTCA, parties agree did not that Okla- P.3d 329. "The whole of a contract is to homa applies law patron tort claims. together, be taken give so as to effect to Rather, parties out specific proce- set every part, reasonably if practicable, each dures provisions "just and rea- helping clause interpret the others." compensation sonable for a tort claim." 15, § Okla. Stat. tit. more, Without the limits of tribal liability stated in Compact would Proper merely T6 have construction Compact of this sovereign limited immunity in requires acknowledgment that the two court, but Compact's provisions pa- governments acutely were aware tron tort claims went further to allocate "[t]ribal courts' adjudicate forum in which such claims adju- were to be arising matters in Indian country broad, is dicated. encompassing all civil and eriminal matters absent imposed limitations by lawful federal parties The did not specify, they authority." Cohen 2005 Handbook at 217. certainly could, only the tribal court or parties expressed The their intent only the state adjudicate court would tribal, federal, governments and state retain Instead, claims. granted the tribe its con- their respective spheres of civil adjudicatory sent to in "a court and criminal over gaming in Indi- for the limited purpose of the Jurisdiction" an country by providing in Part 9: adjudication of such claims. "This Compact The tribal, shall not alter federal or did not specify parties whether consid- addressing tron. Patron wrong question. (1997)(tribe 1404, 137 L.Ed.2d 661 not exer may question The is not whether the tribal court adjudicatory jurisdiction cise civil over civil case legislative exercise adjudicatory jurisdic or civil between arising two non-Indians from on-reser patron, tion over a passive casino whose role in accident); vation automobile Montana v. United alleged States, matter is to be that of a tort victim. 450 U.S. 67 L.Ed.2d inapplicable cited cases are they (1981){concerned because authority of tribe to concern a tribe's authority or a tribal regulate court's hunting fishing by nonmembers of Hicks, over non-Indians. See Nevada v. 533 U.S. tribe on non-Indian owned lands within a reser vation). S.Ct 150 L.Ed.2d question in this matter is whether (2001)(tribes regulatory lack adjudicatory or civil the state acquired district adjudi court has civil

jurisdiction over searching catory officials over the conduct of the tribal member's property on-reservation enterprise by for evidence of provisions virtue of the con- alleged law); off-reservation violation of state gressionally gaming Cоmpact authorized parties negotiated. Strate v. A-1 Contractors, 438, 117 S.Ct. L's ... be jurisdiction over C & suit of bald] to be a "court court state district ered per- expressly has not waived its tribe] intent cause jurisdiction." [the The competent any judicial forum" Id. immunity in state in patron tort claims adjudication of mit provi- parties the however, the 1589. Because court, is demonstrated at S.Ct. Compact. law, the sions of Uniform Oklahoma's chose Oklahoma designated en applied Act which Arbitration existing law and selecting By not T9 juris competent "court[s] in the forcement forum, parties the selecting particular not Id. [Oklahoma]." diction tribal and jurisdiction to concurrent granted adjudication patron courts state enterprise. against the tort claims {12 matter, parties to the this in "a to suit" "limited consent The tribe's applicable law. Compact did not choose the jurisdiction" would not competent court of Instead, of a they out the dollar limits set jurisdic- necessary if concurrent been have liability patron's for a tort claim tribe's because, absent not intended tion were jurisdiction. in brought a court activity of a on the Compact, claims based Therefore, im- tribe's limited waiver of belong exclu- country would tribe in Indian L, suit, munity from unlike the waiver C & jurisdiction of the tribal sively within completely allocate did not no would have been system. There court Rather, by choosing be- state court. to a to consent need for the tribe law, parties law and tribal tween state Conversely, if already possessed. it juris- brought patron claims under the tort patron tort claims parties had intended jurisdic- of state courts and under the diction court, adjudicated exclusively tion of tribal courts. provided. parties could have so [ Compact provides The for concurrent [ unequivo expressly and 10 The tribe has jurisdiction in or state court for the pa immunity from suit for cally waived its adjudication patron tort claims forum, judicial in a whether tron tort claims Therefore, patron in enterprise. The failure of the it be state or tribal. claim matter was entitled to have his compe court of the term "a parties to define provisions in adjudicated under the Compact does not jurisdiction" in the tent trial the forum he chose. The court did not immunity equivocal the waiver of suit make by determining that it had err specify expressly failure to or unclear. The this claim. hear term are included that state courts waiver. The United does not invalidate the clear in its Supreme made that KAUGER, J., EDMONDSON,

States with whom Enterprises L decision C & C.J., unanimous joins, concurring part/dissenting Tribe, Potawatomi Citizen Band part: 411, 121 149 L.Ed.2d 623 S.Ct. majority's agree T1 I with some of the law, I in re- concur statements ¶11 L, what In & the Court considered C cause, manding not for the reasons but of a tribe's immuni constitutes a valid waiver majority. dispositive expressed contract at ty from suit. The construction claim question is whether tort issue, to obtain a which the tribe had entered exclusively concurrently in state belongs building it owned outside new roof on a member or tribal court when a non-tribal clause country, included an arbitration falls off a chair at a Cherokee casino. 415, 121 provision. Id. at and a choice-of-law depends on several factors. answer ‍​‌‌​‌​​‌‌‌‌‌‌​​​​​‌‌​​‌​​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‍found a valid waiver 1589. The Court S.Ct. 2 Indian law does not afford a "one-size- in the tribe's consent from suit 1) depends on: of an fits-all" solution. Jurisdiction binding and enforcement arbitration court, juris any, negotiated if "any having the choice of award in arbitration 2) quo in gaming compact; the status thereof." Id. at S.Ct. diction 3) court; designated and wheth- of a rejected the tribes assertion absence The Court state, accepted jurisdiction under court-federal, or even tribal- er the state "Inlo P.L. as well as the profi- ing existence and compacts gam with States for III Class ciency system. of a Here, ing. Compact is based on the Gaming Model Tribal Compact found at 3A are, T3 There present based the facts § Supp.2004 O.S. part of the State- ed, jurisdictional options: least three fed Gaming Tribal Act.4 These statutes were eral, state or dispositive tribal court. The enacted to allow the state to enter into a question in this merely cause is not whether compact with sovereign entities-the other Rogers the District Court of County was Oklahoma Tribes. compact, Prior to the intended to competent jurisdic be a court of they equal stood on footing-at least in rela tion as that term is used in gaming. tion to Class III between the Cherokee Nation and the State Beyond of Oklahoma. that is the more basic T5 The United States recog Constitution question-whether by tort claim asserted nizes that Indian Tribes are to be treated on non-tribal arising member from events occur equal an governments level with the of for ring gaming at a tribal enterprise on tribal eign nations as well as the states. Art. "belongs" land exclusively concurrently or of the United provides States Constitution court, court, or federal court.2 "[the power shall have the regulate ... foreign Nations, Commerce with

L. among States, the several and with the Indian Tribes." The Oklahoma Constitution COURT, ANY, THE CHOICE OF IF recognizes that all lying NEGOTIATED UNDER THE lands within subject boundaries shall be to the GAMING COMPACT. jurisdiction of the United States.5 14 Congress, through the enactment of the Indian Gaming Regulatory (IGRA),3 Act 16 It has consistently been recognized provisions made negotiate gam Tribes to possess Tribes the same com "belong" (I) 1. Use of the jurisdiction, word refers to compact a Tribal-State has not been en- (federal, state, tribal) as in which prop- (3), paragraph tered into under erly subject (II) maiter to decide the respond the State did request not to the tort claim. negotiate compact Indian tribе to such a respond or did request good to such faith, proof upon burden of 2710(d)(7) shall be 2. Title 25 U.S.C. ju- creates federal prove State to negotiated the State has risdiction provides in some circumstances. good the Indian pertinent tribe in part: faith to conclude compact a Tribal-State governing the conduct (7) (A) The United States district courts shall gaming activities.... have over- However, Florida, in Seminole Tribe v. (i) any cause by of action initiated an Indian 1114, 1131, 134 L.Ed.2d 252 arising tribe from the failure of a State to enter the United States Court held Supreme negotiations into with the Indian tribe for the may that a state not be sued in federal court for purpose entering into a Tribal-State com- negotiate failure good faith. pact (3) paragraph under or to conduct such faith, negotiations good Act, The Indian Regulatory 25 U.S.C. (i) any cause of action initiated a State seq., §§ governs 2701 et within enjoin or Indian tribe to class III the states. activity located on Indian lands and conducted any compact violation of Tribal-State en- Supp.2004 §§ Title 3A O.S. 261-282. effect, tered paragraph into under that is in 1, § 5. Art. pro- of the Oklahoma Constitution (ifi) any cause of action initiated the Sec- pertinent part: vides in retary procedures to enforce prescribed (B)(vii). subparagraph under people inhabiting .The agree the State do (B) (i) An Indian tribe initiate a they cause declare that forever disclaim all (A)) of action subparagraph only described in any title in unappropriated public or to lands 180-day after the period close of the beginning lying thereof, within the boundaries and to all on the date on which request- the Indian lying tribe lands within said limits owned or held ed negotiations the State to enter into Indian, tribe, nation; any that until (3)(A). paragraph any public title to land shall have been (ii) action subparagraph States, described in extinguished by the United the same (A)), upon introduction of evidence shall jurisdiction, be and remain Indian tribe that- and control of the disposal, United States.... recognized treaties have traditionally T7 Various en immunity from suit mon-law governments and their inher status of tribal that a waiv by sovereign powers,6 and joyed occurring jurisdiction matters within over implied ent sovereign cannot be er of the controversial boundaries.9 Even their unequivocally expressed.7 With must be but by Treaty signed New Echota the officials of month, American Distrib Native in the last Co., and mem the United States Government 546 of Seneca-Cayuga Tobacco uting v. Cir.2008) Nation on December (10th bers of the Cherokee that held F.3d 1288 29, 1835, Nation the to the Cherokee enterprise secured corporate a immunity extended to The Oklahoma right govern themselves.10 reiterated that The 10th Circuit of the tribe. recognized the Legislature explicitly has also Tribes are barred absеnt against Indian suits Tribes,11and created unique status of Indian by writing express, clear waiver joint on Rela committee State-Tribal congressional.8 byor tribe that no or state shall ever have west, so Inc. v. Band also, Territory 6. See C & L Citizen Enterprises, Oklahoma, pass government laws for the of the 532 Indian Tribe Potawatomi of of 1589, 1594, 411, 418, People Nation of Red and their descen- S.Ct. 149 L.Ed.2d Choctaw 121 U.S. (1904). (2001); Kappler, v. Charles "Indian Af- Tax Commission dants." 623 Oklahoma Citizen Oklahoma, II, Tribe Laws and Treaties Vol. Treaties." Potawatomi Indian fairs: Band of of 509, 905, 909, 112 S.Ct. (HTML). 498 U.S. Printing Office. Re- Government (1991); v. Mar Santa Clara Pueblo L.Ed.2d 1112 trieved on 10/23/2008. tinez, 49, 58, 56 L.Ed.2d U.S. 98 S.Ct. (1978). Immunity of fed is matter Tribal Nation ceded their In the the Cherokee treaty, by subject to diminution eral law and is not Mississippi exchange $5 lands east of Oklahoma, Hoover v. Kiowa Tribe States. of Territory. million dollars and lands in Indian ¶ 5, Congress must 986 P.2d 516. 1999 OK Treaty provides: New Echota Article 5 of the of abrogation express 'unequivocally' of agree hereby States covenant and The United immunity, must be 'clear.' and a tribe's waiver the lands ceded to the Cherokee nation in that Enterprises, Inc. v. Band Potawa C & L Citizen of Okla., forgoing supra. Common-law shall, article in no future time Indian Tribe tomi of within the sovereign immunity possessed an Indian tribe consent, without their be included any State or territorial limits or of corollary sovereignty necessary Indian and Territory. they But shall secure to the Chero- self-governance. Tribes Fort Three of Affiliated right by their national councils kee nation the Engineering, 476 Berthold Reservation v. Wold 2305, 2313, carry 877, 891, all such laws as to make and into effect S.Ct. 90 L.Ed.2d they may necessary government (1986). deem waiver or con Absent an effective persons property protection and of the that a state sent, it is settled may belonging country their own to their recognized within Indian exercise Tribe, people persons as have connected Department or such Puyallup Inc. v. tribe. of Wash., 165, 172, provided always them: that themselves with Game State of 2616, 2621, (1977). they with the constitu- not be inconsistent shall 53 L.Ed.2d 667 and such acts of tion of the United States Enterprises, Band Pota & L Inc. v. may regu- 7. C Congress passed Citizen have been or as of Oklahoma, Indians; see note 6 watomi Indian Tribe lating trade and intercourse with of Commission v. Oklahoma Tax Citizen supra; also, stall not be considered they Oklahoma, Indian Tribe Band Potawatomi army extending to such citizens of of reside Clara Pueblo v. Mar States as travel or see Santa United note supra; according country permission tinez, see note supra. regulations established the Gov- laws and Enterprises, Band Pota 8. C & L Inc. v. Citizen of of the same. ernment Oklahoma, Tribe see note watomi Kappler, "Indian Affairs: Laws Charles of Tax Commission Oklahoma II, (HTML). Gov- Citizen supra; Vol. Treaties." and Treaties Oklahoma, Tribe Band Potawatomi Indian of Printing Office. Retrieved ernment Pueblo v. Mar note Santa Clara see supra; 10/28/2008. note tinez, see supra. 0.S$.2001 provides perti- Title Treaty Dancing example, Rabbit 9. For nent part: signed 27, 1830 between Creek, on September acknowledges fed- The State of Oklahoma States Govern- A. tribe and the United the Choctaw recognition recognized Mississippi Indian Tribes eral ceded land in ment in which the tribe Interior, Department Bureau of Indian Territory provided exchange for land in Indian people Affairs. "[the Government in Article IV recognizes obligated hereby B. The State of are to se- of the United States unique the feder- People of Indian Tribes within Red status Choctaw Nation of cure to the said spirit government per- and shall work in government of all the al federally recognized cooperation Indi- with all property my their limits be within sons and agreements tions to oversee between the Limited Consent to Suit for Tort Claims Tribes and the State.12 Prize Claims. The tribe consents to suit enterprise in a court of allowed States and Tribes respect to a agreements jurisdic include of allocation of prize tort claim or claim if requirements all compacts.13 tion in gaming paragraph 9 of subsection A or all re- competent jurisdiction" refers to "court of quirements paragraph 11 of subsection part heading CLAIMS; 6 under the "TORT met; B of this Part provided have been CLAIMS; PRIZE LIMITED CONSENT that such consent shall be to the provision compact TO SUIT." This of the following additional conditions and limita- relates to tort claims and it sets forth limita ... tions:. liability, requirements asserting tions of for Exactly like the Oklahoma Governmental claims, procedures, very tort ete. in a manner Act, Tort Claims were it not for compact, this similar to the Oklahoma's Governmental Tort no tort action could be asserted the allowing Claims Act 14-an act tort claims to Tribe or a Tribal enterprise. Where it is to brought against be the State. be asserted question altogether. is another part 9 Subsection of Compact C 6 of the reason, 1110 For whatever Compact, this as agreement contains an of the Tribe to con- majority opinion notes, the correctly did not being sent sued for tort claims associat- provisions include for shifting. ed/arising gaming operations. out of its compacts Some other state tribal have clear ly provisions.15 However, provides part: included such in (ii) policy an Tribes in furtherance of federal juris- the allocation of criminal and civil the benefit of both the State of Oklahoma and diction between the State and the Indian tribe Tribal Governments. necessary for the enforcement of such laws Governor, C. designee, regulations; 1. The or named negotiate (if) coopera- authorized to and enter into by the assessment the State of such ac- agreements tive on behalf of this statе with tivities in necessary such amounts as are federally recognized defray regulating Tribal Govern- activity; costs of such (iv) ments within this state to by address issues of taxation the Indian tribe of such ac- Except provided tivity mutual interest. comparable as otherwise in amounts to amounts as- subsection, agreements activities; this comparable shall be- sessed the State for upon (v) approval by contract; come effective the Joint remedies for breach of (vi) Commitiee on operation State-Tribal Relations.... standards for the of such ac- tivity and gaming facility, maintenance of the 0.$.2001 provides § 12. Title 74 perti- in including licensing; and (vii) any nent part: subjects directly other that are re- operation lated to gaming activities. hereby A. There is created the "Joint Com- mittee on State-Tribal Relations". The Com- 0.$.2001 seq. §§ 14. Title 51 151 et responsible overseeing mittee shall be approving agreements govern- between tribal example, 15. For v. Morse Diesel Interna Kizis ments and the State of Oklahoma. The Com- tional, 260 Conn. 794 A.2d members, mittee shall consist of ten to be Connecticut, Supreme Court discussing appointed as follows: compact Mohegan between the State and the 1. Five appoint- members of the Senate to be Nation, quotes compact. recog The Court Senate; ed Tempore the President Pro of the compact explicitly places nizes that the tort ac tions which occur on tribal land in the tribal Representa- 2. Five members of the House of opinion provides pertinent part: court. The appointed by Speaker tives to be of the Representatives.... House of 3(g) ... gaming compact Section pro- vides: "The Tribe shall establish, prior 2710(d)(3)(C) 13. Section Regulato- of the Indian gaming, commencement of class III reasonable ry Gaming provides: Act procedures disposition of tort claims (C) Any compact Tribal-State arising alleged injuries un- patrons from negotiated of its (A) subparagraph may der provisions gaming include facilities The Tribe shall not be relating i0o- deemed to have waived its (i) application respect the criminal and civil from suit with to such claims virtue regulations laws and any provision of the Indian Compact, tribe or may of this but to, directly State necessary that are related adopt system analogous a remedial to that for, licensing regulation of such activi- arising against available for similar claims ty; system State or such other remedial Although question this is a novel provide part "[this 9 that: Compact does Oklahoma, jurisdictions all of the other tribal, alter federal or state compact shall not have considered the issue have held that the jurisdiction." adjudicatory or criminal civil (some negotiated un Tribes have inherent).16 compact, Gаming der the some Mohegan "Gaming following on the appropriate consultation with the ees occur En- only Gaming agency." terprise Site shall be heard in the State obligation Pursuant to its Court." ... Ordinance No. Disputes Mohegan compact, Council estab- Tribal , 6... supra, Arizona, lished, Mohegan Compact provides: in Section 8 in the Constitution of the Nothing change, is intended to Connecticut, Indians Tribe modify jurisdic- Disputes Gaming Disputes Court and a revise or civil criminal Nothing the State. tion of the Tribe or of Mohegan Const., XI, art. of Appeals. disputes modify have contained herein shall be deemed to These courts "arising existing in ... connection with" out of or limit federal over Indians gaming operations Gaming Operations or the actions of the and the authorized under Compact. Mohegan § Const., XIII, art. 2. authority. provides Mohegan that "[tlhe The constitution Section 13¢ addressed Tort Remedies for Patrons provides: and it ordinance, the Tribal Council shall establish by Court, Gaming Disputes shall be com- which procedures The Tribe shall establish written posed Appellate a Branch and an of Trial disposition arising of tort claims from jurisdiction for the Tribe Branch. Exclusive injury damage personal property alleged or disputes arising out of or in connection over by patrons have been of suffered invitees Gaming, of the Tribal Gaming with the the actions its Facilities and shall enact such Trib- Authority, by Gaming entered or contracts into necessary implement pro- al law as is these Gaming Mohegan Tribe or the Tribal Au- procedures cedures. The shall include all time Gaming, including thority in connection with applicable disposition limits of the tort limitation, disputes arising without between that, provision upon request, claim a the any person entity Gaming or and the Tribal invitee, patron patron's or or the or invitee's customers, Authority, including employees, or designated representative, provided shall be manager any gaming operating gam- under a copy procedures with a the as well as the ing management agreement with the Tribal name, address number the telephone Gaming Authority, entity person or or Gaming Facility Operator mailing and the ad- may privity persons be in with such or telephone dress and number of the clerk of the entities matters shall be vested in as court. The tribe not be Tribal shall deemed to Gaming Disputes Mohegan the Court...." sovereign immunity have waived its from suit XIII, Const., addition, § art. In the tribe respect by establishing to such claims establishing Gaming Disputes ordinance the procedures by any provision such or of this original Court confers "exclusive agrees Compact, but not to assert such immu- respect over all cases with to which the Tribe (d) in subsection of this Sec- nity provided jurisdiction pur- has conferred matter tion. Mohegan to Article the suant XIII of Constitu- Dakota, Gаming Compact In North between Mohegan tion." Ordinance No. 95-4 of the Cheyenne River Sioux Tribe and the State of Conn., V, Tribe of Indians of art. provides Dakota 6: North subsection The tribe enacted an ordinance ... establish- Any case a member in which Code, ing Mohegan Torts which contains a is a defendant Indian non-member shall limited waiver of the tribe's immuni- Any a heard in tribal court. case in which ty Gaming Disputes so Court a non-Indian is defendant shall be heard in "(1) adjudicate liability [injuries proxi- another court. mately by negligent caused acts or omis- parties provi- It is understood that the Mohegan Gaming Authority; sions of the Tribal paragraph sions of this are limited to civil (2) Injuries caused the condi- proximately arising cases from related transactions to or any property Mohegan tion of of the Tribal arising Dewey from conducted in Gaming Authority provided*57 the claimant Cheyenne Ziebach counties on the River Reser- property danger- establishes that the in a was pursuant compact. provi- vation to this This (3) [injuries condition; {and] ous caused by sion shall not be construed to be a waiver of negligent acts or omissions of tribal securi- sovereign immunity Cheyenne of the River ty arising performance officers out of the Sioux Tribe. during their duties the course and within the scope employment." No. of their Ordinance 16. Hatcher v. Harrah's NC Casino Company, (2005); Amending LLC., An Ordinance Ordinance 96-2 169 610 S.E.2d 210 N.C.App. Code, Establishing* Mohegan Gallegos Tesuque, *505 The Torts v. Pueblo 132 N.M. 46 3(c). Mohegan pro- (2002); Torts Code further Clara Pueblo, P.3d Doe v. Santa (2007); vides that the ordinance does not immunize N.M. 154 P.3d 646-647 Diep employees from individual lia- Merkel, enbrock Kan.App.2d bility, disputes regarding employ- but that all P.3d 1063 Dorsey parol parties' Corporation America v. & Whit evidence to determine the true intent.18 (8th Cir.1996), ney, involved a 88 F.3d management a casino lawsuit between HL. representing a firm company and law held, Ho-Chunk Nation. The 8th Circuit QUO IN THE STATUS THE ABSENCE history, examining legislative after IGRA's AOF DESIGNATED COURT. completely preempted law. that IGRA state jurisdiction-shift In the absence of a though was not a tort claim Even the lawsuit ing agreement, question becomes wheth brought by patron, dis casino the Court's juris er more than one court could assert illuminating here. The cussion IGRA disputes Although diction over such brought lawsuit was federal court but dis them, majority ignores opinion other courts missed the court and remanded to state of which have addressed the issue discussing court. the issue of jurisdiction. Perhaps should assert lawsuits, Dorsey gaming-related striking most decision comes from Unit legislative history that "[The Court noted Supreme ed States Iowa Mutual indicates that did not intend to LaPlante, Ins. Co. v. S.Ct. any jurisdictional pow regulatory transfer involving 94 L.Ed.2d 10 a case er to the states means of IGRA unless sought non-Indian insurer who a declaration in a tribe consented transfer tribal- duty in federal court it had no to de compact." recognized The Court also indemnify respect fend or an insured with that: subject to an incident which was the of suit regulato- left thus states with no the insurer tribal court. The ry gaming except expressly role over court, allowing Court deferred to the tribal IGRA, it, by only authorized and under the opportunity juris it the first to determine by apply method which a state can its so, doing diction. the noted that Court general through civil laws to is a sovereign "Indian tribes retain attributes of compact. tribal-state Tribal-state com- ty over both their members and their terri pacts are at the core of the scheme Con- tory sovereignty to the extent that has not gress developed to balance the interests of been withdrawn federal statute or trea states, government, the federal and the ty'” law, They tribes. are a creation of federal recognized signifi- The Court also prescribes permissible IGRA 'the canee of It said: tribal courts. scope of a compact. Tribal-State repeatedly recognized . We have 1 12 parameters It was within the longstanding policy of IGRA Federal Government's parties provide for encouraging self-government.... whether the state jurisdiction policy or tribal courts had over tort This reflects the fact However, they claims.17 In sovereignty did not do so. tribes retain 'attributes territory stead, both their members and their appears it Tribe State and agreed things guo. leave status If this is ... sovereignty the extent that has not provision stating not what is meant been withdrawn federal statute or trea- tribal, "compact that the ty. policy shall not alter fed favoring The federal tribal self- government operates even in areas where adjudicatory eral or state civil or criminal jurisdiction," phrase then the "court com affirmatively state control has not been petent jurisdiction" pre-empted by as used federal statute. '[Albsent least, very ambiguous at the and the Court governing Congress, question Acts of should remand the matter for a consideration always been whether the state action 2710(d)(3)(C), 17. Title 25 U.S.C. see note District, ¶ 16, School 2003 OK 73 77 P.3d 1034; supra. Energy, Pitco Production Co. v. Inc., Chaparral 5, ¶ 12, 541; 2003 OK 63 P.3d v. Lewis Sac and ambiguous requires Whether contract is Housing Authority, Fox Tribe Oklahoma extrinsic evidence for clarification is a matter for ¶ 25, OK 20 896 P.2d 503. Campbell Independent the court to decide. v. County [Jackson Commission. of reservation Indi- infringed on the ans to make their them.' ... Tribal courts own laws and play ruled vital v. S.E.2d ]Swayney, ^[413] at 419 N.C. [ (1987) ^[52] ] (quoting at Fish self-government, ... and the Court, role in tribal 382, 387-88, er v. District 943, 946-47, consistently 47 L.Ed.2d Federal Government has en- (1976)). couraged development.... their Al- subject dispute arising would though criminal .of the trib- on the reservation between the casino and subject al courts is to substantial federal patron its forum other than the one limitation, ... their civil is not the Indians have established them ju- similarly restricted.... If state-court selves. Id. In- risdiction over Indians or activities on Whereas the Eastern Band of Cherokee dian lands would interfere tribal sov- greater Indians has a in resolving interest ereignty self-government, the state patron disputes related to activities within generally jurisdic- courts are divested of casino, policies procedures and has tion as a matter of federal law.... Iowa resolving disputes, the interests of LaPlante, supra pp. Mutual Ins. Co. outweigh the Indians interests (Citations omitted.). 975-76, 107 S.Ct. 971. Therefore, state. the exercise of state [ recognized courts have that the Other present case would belongs matter foremost Tribal Courts. unduly infringe self-governance on the example, For in Hatcher v. Harrah's NC the Eastern Band of Cherokee Indians. LLC., Company, N.C.App. Casino reasons, For these we hold that our state (2005), the North 610 S.E.2d 210 Carolina yield subject jurisdic- courts must matter Appeals addressed whether tion to the Eastern Band of Cherokee Indi- matter state courts had judice ans in the case sub and affirm the dispute patron to resolve a between a casino decision of the trial court. alleged jackpot who won a he and the case, A Gallegos 1 16 New Mexico v. Pueb management company. casino's The com pact 207, grant Tesuque, between ‍​‌‌​‌​​‌‌‌‌‌‌​​​​​‌‌​​‌​​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‍the Tribe and the State lo 132 N.M. 46 P.3d 668 regulatory, jurisdiction (2002), subject ed eriminal to the with jurisdic dealt the matter State, tion of state brought courts over a tort claim expressly grant it did not civil but jurisdiction a non-Indian an Indian respect to the with to the tribe for State injuries suffered at parties' dispute. gaming The court concluded that the tribe's facili ty. tort, jurisdiction alleged in At the time of the the exercise of state court there was unduly infringe gaming no compact action would on the self- valid in force. The governance pp. of the tribe.19 It held at 213- Court held that trial courts of Mexico New that: jurisdiction in lacked the matter absent a agreement valid between the tribe and the

It is clear that the Eastern Band of Chero permitting the state court to hear the policies procedures kee Indians has and Pueblo, matter. Doe v. Santa Clara place disputes to resolve such as the one 269, 644, (2007), N.M. 154 P.3d 646-647 was plaintiff presents judice. in the case sub Thus, gaming compact decided after a valid jurisdiction for had our courts exercise been executed between the plainly in this case would interfere with the tribe and the powers self-government compact specific state. The contained lan upon conferred guage concerning jurisdict tort the Eastern Band of Cherokee Indians and claims and compact ion.20 The Court held both that the through the exercised Cherokee Tribal taining provision a which stated that the State alsо, Indians, Bonnette v. Tunica-Biloxi See Cir.2003), jurisdiction fully (La.Ct.App.3 and the Tribe had concurrent 873 So.2d 1 which rec Tribe, protection public," "ensure the ognized jurisdiction the Tribe retained and the State. brought by patrons tort claims of casinos in a compact provided that the "full territorial Compact provides: 8 of the Section subject jurisdiction" of the and matter Tribe was preserved adopt proce and would safety protec- that the Tribe Protection of Visitors. The disposition priori- Facility dures for of tort claims. This conclu tion of visitors to a is a Tribe, despite ty purpose compact sion was reached also con of the and it is the of this jurisdiction jurisdiction lacking in matter was created a concurrent state-tribal proper state court and forum was claims, injury by agreement personal tort for permitted such parties, Mohegan Gaming Disputes and that IGRA This Court. result was reached after the Court consid negotiation and outcome. express language compact,21 of the ered Merkel, case, Diepenbrock An earlier provided the fact constitution 97 P.3d 1063 Kan.App.2d 33 pa to redress forum mechanism (2004), subject matter considered injuries, permitted and that tron's IGRA action. The deceased wrongful for a death such result. a heart attack suffered on tribal land died of gaming the tribe. The tribal owned fee recognizes concept 19 IGRA of con compact gave civil the tribe gami current state and tribal involvement relating to Class III on tort matters ng.22 When one considers the courts how spoke their reservation. The Court Carolina, Mexico, Kansas, North New linchpin p. of the matter at as follows: issue, Connecticut have addressed the it be Perhaps the critical fact this case is that jurisdic comes clear that the absence of a surrounding Diepenbrock's all events tion-shifting agreement important. When proper cause of action occurred complies a tribe estab IGRA ty.... preference recognizes The law required system appropri lished the sovereignty for tribal dispute system, jurisdiction, ate resolution deference to the court over matters comity potential infringe a matter of concerning their members and their terri self-governance, belongs ment of in tribal tories. Oklahoma Tax Comm'n v. Potawatomi court. Tribe, 498 U.S. 111 S.Ct. ... 112L.Ed.2d 1112. Supreme 20 The United States Court has It would undermine the of the juris not decided whether a tribal court has tribal courts over reservation affairs and resulting diction over claims from the con infringe hence would on the coming duct of non-Indians onto tribal land govern Prairie Nation to Band Potawatomi voluntarily participate in a enter if themselves did not reside in Nevertheless, prise. it has hinted that a ... the tribal courts this case. jurisdic tribal court could have inherent civil instance, Kizis v. Morse Diesel Internation tion over nonmembers. For in Ne Hicks, al, (2002), vada v. 260 Conn. 794 A.2d 498 L.Ed.2d Court answered Supreme Connecticut addressed question may the of whether a jurisdiction involving issue in a a tribal court case jurisdiction patron (including assert over civil brought negli of a tribal casino who claims claim) against § gence against employees action the state tribe's officials who seeking damages personal injuries for tribal land sus entered to execute a search war tained at the suspected casino. The Court held that rant a tribal member any persons permit shifting to section assure that such who court that IGRA does not the bodily injury property damage proxi- suffer or jurisdiction injury personal over visitors' suits mately by Gaming caused the conduct of the to state court. Enterprise remedy have an effective for obtain- end, ing just compensation. fair and To that See note 15, discussion supra. Section, terms, to its the agrees carry Tribe to insurance that covers 2710(d)(5) provides: 22. Title 25 U.S.C. loss, injury agrees such or to a limited waiver suit, agrees pro- of its from Nothing impair in this subsection shall the binding proceedings ceed either in arbitration regulate of an Indian tribe to class III competent jurisdiction, or in a court at gaming concurrently on its Indian lands with election, visitor's to claims for respect State, except regula- to the extent that such bodily injury property damage proximately or stringent with, than, tion is inconsistent or less by caused conduct of Enter- regulations applicable the State laws and made Section, prise. purposes any For of this by any by compact Tribal-State entered into court, may brought claim be in state district paragraph tribe under is in land, including arising claims on tribal unless effect. finally by it is determined or federal state civil over non-Indians on their having law outside of the reser violated state reservations, vation. even on non-Indian fee lands. taxation, may regulate, through A tribe {21 expressly The Nevada Court noted means, licensing, or other the activities of Contractors, A-1 previously, Strate v. nonmembers who enter consensual rela- L.Ed.2d 661 117 S.Ct. U.S. members, tionships with the or tribe its (1997), the Court "assumed that where tribes contracts, through dealing, commercial authority possess regulate the activities of leases, arrangements.... or other A nonmembers, disputes civil may power tribe also retain inherent presumably lies 'arising out of such activities exercise civil over the conduct of specifically It with the tribal courts." also non-Indians on fee lands within its reser- holding question limited its of tribal vation when that jurisdiction over state officers conduct threatens or has court enfore law, ing open question politicalintegrity, but left some direct effect on the tribal court over nonmember de security, the economic or the health or in genеral.23 disposi fendants Nevada is not welfare of the tribe. Answering question tive. of whether a gaming Montana did not discuss or may general juris tribal court be a court of enterprises, nor did it discuss what would diction which to resolve 1988 claims does satisfy test-except either concluding question not also answer the of whether a that non-Indian hunters and fishermen on may brought tribal court resolve tort claims non-Indian fee land did not enter into arising nonmembers author IGRA out agreements or dealings commercial with the operations ized on tribal lands. tribe, hunting fishing nor were a threat Likewise, Montana v. United States political to the Tribe's security or economic 101S.Ct. 67 L.Ed.2d 493 justify regulation. so as to (1981), pow involved the narrow issue of the Finally, regulate fishing

er of a Tribe to non-Indian Plains Commerce Bank v. — —, hunting Long, reservation land ownedin fee again nonmembers of the Tribe. The L.Ed.2d 457 Court Court dis agreed holding with a involving lower cussed the Montana test in a case may prohibit Tribe from hunt non-Indian bank and its sale of non-Indian nonmembers ing fishing belonging or on land to the Tribe it land owned within a tribal reservation. held the United States trust for the The Court determined that the Montana ex agreed per Tribe. that if also the Tribe ception asserting did not mits to fish or hunt on such apply because the land at issue had been nonmembers land, it party entry by owned a non-Indian condition their least 50 charg ing bag a fee or and creel limits. establishing years and its resale to another non-Indian case, deciding developed imperil could not substance possibly Montana test which that: welfare the tribe. Plains held that states Mon sure, permit To Indian tribes regulate retain inherent tana did not tribes to

sovereign power land, to exercise some sale of non-Indian but that a could forms tribe Hicks, 2304, (1997), 23. Nevada v. 533 U.S. 121 S.Ct. 117 S.Ct. 137 L.Ed.2d 661 how (2001). opin 150 L.Ed.2d 398 Footnote 2 of the ever, we assumed that "where tribes possess provides: ion regulate the activities of nonmem bers, In Farmers Union National Ins. Cos. v. Crow jurisdiction disputes arising civil over out Tribe, 845, 855-856, 471 U.S. 105 S.Ct. presumably of such activities lies in the tribal (1985), ques 85 L.Ed.2d 818 we avoided the courts," distinguishing without between non may generally adjudicate tion whether tribes plaintiffs member and nonmember defendants. against arising nonmembers claims from on- See also Iowa Mut. LaPlante, Ins. Co. v. transactions, reservation and we have never 9, 18, 107 S.Ct. 94 L.Ed.2d 10 jurisdiction held that tribal court had over a (1987). holding Our in this case is limited to Typically, nonmember defendant. our cases question of tribal-court brought against have involved claims enforcing state officers We state law. leave See, Lee, eg., defendants. 217, Williams v. 358 U.S. open question of tribal-court 79 S.Ct. 3 L.Ed.2d 251 In general. over nonmember defendants Contractors, Strate v. A-1 520 U.S. 438, 453, 47g IIL. non-members inside

regulate the conduct of tribe's implicates that the reservation THE ACCEPT- WHETHER STATE HAS Clearly, Plains was writ interest. P.L. ED JURISDICTION UNDER of a non-Indian land dis ten in the context AND THE AND PROFI- EXISTENCE not mention IGRA or tribal pute, and it doеs A TRIBAL CIENCY OF COURT SYS- gaming enterprises. TEM. Supreme has never ad 124 The Court undisputed 126 It that Oklahoma was gaming enterprises dressed whether was allowed to assert civil not state which resulting in a might satisfy the Montana test jurisdiction over Indian Tribes in Oklahoma authority to having tribal court "inherent" majority under Public Law 280. The finds here. disputes hear such as the one involved impediment an to the that this is not asser however, has, gaming en recognized dispute tion of over this core, terprises can serve as a essential com majority District of Oklahoma. The Courts security of a tribe. ponent of the economic refers to Lewis v. Sac and Fox Tribe of In Band Mission Cabazon 20, ¶ Housing Authority, 1994 OK California Indians, 12,896 P.2d 503. sparked L.Ed.2d case 127 Lewis involved two tribal members Gaming Regu enactment of the 1988 entered into a contract which title to who Act, latory recognized the Court pass their home and land would to them on bingo games and card conducted on the res September they 1990. When received a predominately played by ervation and non- warranty rights conveying deed the surface major employment source of Indians were they only, specific performance sued for Tribe, profits and the were the accounting gas for all oil and revenues the Cabazon, Tribe's sole source of income. Housing Authority had received since the held that "the State's interest conveyance. Authority of the date ob- preventing bingo the infiltration of the tribal jected to the of the district court. enterprises by organized justi erime did 128 One of the issues was whether Con- fy regulation bingo of the tribal enter gress ju- "ousted" state courts of concurrent prises light compelling federal and risdiction to consider contract actions involv- supporting reg them. interests State ing buyers land transactions between Indian impermissibly infringe ulation would on trib statutorily housing created Indian au- government, al applies and this conclusion thorities of the state. I was a dissenter county's equally attempted regulation and, thoroughly explained Lewis card club." the Cabazon joined, dissent in which I the issue Lewis was not whether Oklahoma had been "oust- approach" 125 Under the "Montana jurisdiction, ed" from "concurrent" but rath- might evidentiary showing Tribe make an er whether the transaction occurred within regulation gaming, including that the not, Country. If it did the state it, disposition tort claims asserted clearly jurisdiction. However, if it did satisfies Montana. Tribe needs show Country, any jurisdiction occur in Indian core, gaming enterprises its serve as a by the held state must be as a direct result of component security. essential economic of its congressional federal action or federal case Here, because the matter was decided on a Ultimately the dissent concluded that law. dismiss, motion to there is no evidence in the the transaction did not occur Indian Coun- support record to such a result. The Court try. that should remand the matter so the Tribe may, can, appropriate if it make an Nevertheless, evidentia- remains the law Lewis ry showing concluding majority before Congress in It held that because Oklahoma. case, present that affirmatively "[iIn has we find the had not ousted the state courts establishing Tribe has not met is burden of of their concurrent to entertain excep- it involving falls within one of Montana's contract actions land transactions buyers tions." between Indian and state-created In- functioning Cherokee Nation has had a authorities, housing Oklahoma state dian Supreme Court since 1823 and a written jurisdiction. had inherent concurrent courts 1880s, By determined that because constitution since The Lewis Court 1889. it had Oklahoma,26 built nine courthouses in one steps appropriate did not take the Oklahoma PL-280, proper being to take holds distinction of the old governmental building be focused on the est inquiry to be made must the State of (In 1998, Publishing Oklahoma.27 West policy fostering auton- congressional tribal Company published the Cherokee Nation omy light pertinent United States Su- jurisprudence. preme Court Annotated.) Code undisputed Congress 132 It is Lewis,

130 In the Court looked at two factors to determine whether the State of vacillated its treatment of Native Ameri 1) jurisdiction: They Oklahoma had concurrent cans. were not made citizens of the litigation explicitly was with whether United States America until June 2) Apache and as late as the Fort Sill by Congress; it in drawn whether (Chiricahua), fringed upon self-government. prisoners tribal Even were still of war. though specifically pre Lewis involved (Ironically, baby the last captivity, born in Cleghorn, grew up Mildred to be Chair Housing and state created Indian scribed ° Tribe.) Authority, Congress this case involves tribal man of the terminated gaming enterprise, system the same factors could tribal court through the Curtis Act of applied way statehood, here to determine whether to the State clear the and it jurisdiction. legal has concurrent shifted most issues to the Federal However, Courts.28 the mid-1950's Con Congress explicitly did not withdraw such instance, litigation gress began from state courts. In this a movement of restoration it up recognized government left it to the States and Tribes eannot negotiate litigation truly to where the would occur. function without tribal courts. litigation infringes upon claim

Whether tort it established the Tribal Court Assistance self-government depend establish, upon Program designed could to improve, and appro expand functionality whether tribe has established an of the tribal court system.24 priate court The tribe should be system. is estimated that tribal courts $8,630,00 that will receive the end of the 2008 given opportunity showing to make a year.29 fiscal the State's assertion of would infringe upon gоvernance.

fact self Legislature recog- 133 The Oklahoma also Here, 1 31 the tradition of Cherokee competency courts nizes the of tribal courts. Title 0.9$.2001 deeply history $ rooted of this State. provides: policies Nation, Regula- Supreme 24. One of the behind the Indian Court of the Cherokee tory Gaming promote self-sufficiency Act is to Court heard 21 cases in 1823. self-governance. pro- Title 25 U.S.C. pertinent part: vides in O'Dell, George, Anthropology, 26. Professor of policy Declaration of "Saline Courthouse," www.personal.utulsa.edu. purpose 10/30/08; chapter of this is- Retrieved "Cherokees Fund Restora- provide statutory Courthouses," opera- Project basis for the tion for Historic Native gaming by Times, tion of Indian tribes as a means of American Retrieved 10/30/08. promoting development, tribal economic self- sufficiency, strong governments; ... 27. Davis, Lee, "These Walls: The Chero- Kirby aWhen tribe has created the to facili- Supreme Building kee Nation Court in Okla- governmental entity responsi- tate and act as the homa," Record, 8, 2008; August Journal McMa- managing aspects ble for all of the tribe's han, Liz, Supreme "Cherokee Nation enterprise, including sys- creation of Building Muskogee Lift," Get Face Phoenix, tem, refusing recognize then this mechanism August 2008. appropriate resolving as an means of tort dis- putes ig- which arise out of would also Law, ICohen's Handbook of Federal express policy nore the declared in IGRA. §, 1.07, pp. 2005 ed. 98-99. Strickland, Rennard, Spirits, "Fire and the Assistance, pp. Catalog Cherokee Law from 29. The Clan Court." 73-75 Federal Domestic University Program." of Oklahoma Press The au- "16.608 Tribal Court Assistance according thor notes that http://www.cfda.gov. to the Record Book of Retrieved 11/14/2008. power of the Su- just

A. This act affirms the it The same is true of tribal courts as is to with sister states. preme of the State of Oklahoma person going Court A onto trib land, in entering participating al into and extending full faith and issue standards expect bring enterprise, tribal should to judicial proceed- credit to the records and sovereign-the in of federally recog- suit the location any any court of ings of Tribe, nation, than in a state district court. tribe, political rather band or nized Indian thereof, In- including courts of Sovereignty subdivision It has been said Tribal have, beginning, from the Tribal dian offenses. been treated the United States Govern issuing any B. such standard the Su- solid, as a ment and the State of Oklahoma preme of the State of Oklahoma intact mass-like a rock. This rock remains part in recognition in whole or extend such intact unless and until decides to types judgments of type to such (which away chip pieces through of it it has appropriate it where tribal courts as deems enactments) grant to to various agree grant reciprocity to of tribal courts mаjority, or state courts. The the federal judgments of the courts of the State of hand, the other treats Tribal in such tribal courts. begun nothing, having to Con by adopting a dis- This Court followed suit gress something must add in order to create recognition judicial trict court rule for of | This, view, jurisdiction. my wrong, in is proceedings tribal court. I would remand the matter to allow Tribe recognizes judgments 134 The rule concerning showing to make a whether from tribal are entitled to full faith courts jurisdiction would in State's assertion of a similar or and credit the same manner as fringe self-governance. on it's comparable judgment of a sister state.30 at a race track in Hot Had this tort occurred CONCLUSION Colorado, no Springs slope or a ski one expect would that the lawsuit would be heard 35 The State's self-interest served entering compact with the into Tribe.31 Rogers County. by the District Court of 281(11A) Supp.2004 provides 31. Title 3A O.S. Oklahoma, 30. Rules the District Court of 2, App. provides Rule 12 0.S.2001 Ch. part: pertinent part: parties acknowledge recognize A. Standards Compact provides tribes with substantial (1) any Court'" means court or "Tribal consti- and, exclusivity goals with the consistent tutionally any federally established tribunal IGRA, special opportunities for tribal econom- nation, tribe, band, recognized pueblo, through gaming opportunity ic within the ex- village, duly un- or Alaska Native established respect ternal boundaries of Oklahoma in to including law, der law or tribal Courts federal thereof, organized pursuant games. to Title the covered In consideration of Indian Offenses long change Regulations. as the state does not its laws so Code 25, Part 11 of the of Federal (2) judge, justice, any "Judicial Officer" means per- after the effective date of this to magistrate duly seated and or other officer any operation additional mit the form of law authorized under federal or to re- licensee, gaming by any organization disputes judgments solve in a enter tribal change permit any its laws to additional elec- tribal court. Oklahoma, tronic or machine within Judgment" any "Tribal means final written agrees pay following the tribe fees: judgment, decree or order of tribal court agrees pay tribe covenants duly signed by judicial officer and filed in a game a fee from covered derived Tribal Court. paragraph calculated revenues as set forth Recognition Judgments-Full B. of Tribal paid of this subsection. Such fee shall be no Faith and Credit day later than the twentieth of the month for The district courts of the State of Oklahoma preceding revenues received the tribe in the grant shall full faith and credit and cause to be month; and judgment enforced where 2. The fee shall be: grants reciproc- judgment court that issued the (4%) percent Million a. four first Ten ity judgments the courts of the State of ($10,000,000.00) adjusted gross Dollars rev- judgment Oklahoma, a tribal providеd, year enues received a tribe in a calendar greater full shall receive no effect or faith play games, amusement from electronic credit this rule than would a similar or (Em- bonanza-style bingo games and comparable electronic elec- judgment of a sister state. added.) phasis games, bingo tronic instant general goal provision IGRA embodies the of federal have included in IGRA which policy: self-government to Indian allow tribal allowed negotiate Tribes and States to gam with federal control.32 Before III Class allocation of Fur- states? lands, ing legal can be on Indian the tribe thermore, the State of Oklahoma as well as negotiated and the state must have a com recognized this Court has tribal courts as pact approved by which has been the Secre equivalent state; to yet those of a sister words, tary of the In Interior.33 other IGRA implication majority of the opinion is that requires negotiate States and Tribes to re tribal courts are not courts of garding scope gaming of authorized and jurisdiction. gaming. part State's role Indian As ¶37 process, ¶¶ Bahe, IGRA allows States and Tribes Bittle v. 2008 OK 52- negotiate jurisdiction-shift to and to include 192 P.3d the Court held that ing provisions in compact.34 sovereign tribe had waived its merely because it filed for and received a Congress If had not considered tribal liquor license, request license. The of a courts to have it matter said, express over lawsuits which relate to or was constituted an knowing arise out of and gaming gaming enterprises, why and would it waiver of immunity. here, Yet (5%) percent gaming activity b. five specifically prohibited the next Ten Million is not ($10,000,000.00) adjusted gross Dollars rev- Federal law and is conducted within a State year enues received a tribe in a calendar not, does as a matter of criminal law play games, from the of electronic public policy, amusement prohibit and gaming such activi- ty. bonanza-style bingo games electronic and elec- bingo games, tronic instant § provides: Title 25 U.S.C. (6%) percent subsequent adjusted c. six of all purpose chapter of this is- gross revenues received a tribe in a calen- (1) to basis provide statutory opera- year play dar from the of electronic amuse- gaming by tion of Indian tribes as a means of games, bonanza-style bingo ment electronic promoting development, tribal economic self- games bingo games, and electronic instant and sufficiency, strong governments; and tribal (10%) percent monthly d. ten of the net win (2) regula- to basis for the provide statutory pool(s) pot(s) of the common from which gaming by adequate tion of an Indian tribe to prizes paid are for nonhouse-banked card organized it shield from crime and other cor- games. keep The tribe is entitled to an amount influences, ruрting to ensure that the Indian equal payments to state from the common primary beneficiary tribe is the gaming pool(s) pot(s) part operating of its cost of gaming and to assure is con- operation, games. fairly honestly by ducted operator and both the Payments of such fees shall be made players; and and Nothing Treasurer of the State of Oklahoma. (3) to declare that the establishment of inde- require herein shall the allocation of such fees pendent regulatory authority gam- Federal particular purposes, including, but not lands, ing on Indian the establishment of Fed- to, performing limited the actual costs of lands, gaming eral standards for on Indian regulatory responsibilities state's hereunder. establishment of a National Indian necessary congres- Commission are to meet § provides: 32. Title 25 U.S.C. regarding gaming pro- sional concerns and to finds that- gaming generating tect such as a means of (1) numerous Indian tribes have become en- tribal revenue. gaged in or have licensed activities on generating Indian lands as a means of 33. Title 25 U.S.C. revenue; governmental (2) Federal courts have held that section 81 of 2710(d)(3)(C) provides: 34. Title 25 U.S.C. requires this title Secretarial review man- agement dealing (C) gaming, Any contracts with Indian compact negotiated Tribal-State un- provide approval (A) but does not subparagraph provisions standards for der include ' « relating to- contracts; (3) existing (i) provide application Federal law does not clear of the criminal and civil regulations regulations standards or for the conduct of laws and of the Indian tribe or the lands; State that are to, related directly necessary (4) for, principal goal policy licensing regulation Federal Indian of such activi- promote development, tribal economic self-sufficiency, strong ii) government; juris- the allocation of criminal and civil diction between the State and the Indian tribe necessary for the enforcement of such laws tribes have the exclusive regulate gaming activity on Indian if the lands regulations; for a tort claim ity of the Cherokee Nation that if non-tribal majority expresses concern land and voluntarily arising gaming from the Cherokee Nation's enter members enter gaming in a tribal partake to choose essence, the ma- activity on tribal land. unknowingly waive they may somehow prise, jority that the Tribal Com- reasons bring a tort suit into district to Nation and State their pact between the Cherokee district court Assuming that the state court. part is a of the law of the State of Oklahoma in disputes the jurisdiction to hear such had and, therefore, tort claims of Oklahoma any certainly is not place, the waiver first that arise under against the Cherokee Nation that which was express knowing than less in State District Compact the arе enforceable to a waiver Bittle. held Courts. give proper majority does not 38 The ‍​‌‌​‌​​‌‌‌‌‌‌​​​​​‌‌​​‌​​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‍sure, Compact does delineate 3 To be the fact that tribal courts to the consideration legal relationship between the State jurisdiction and fails competent are courts Nation with re and the Cherokee Oklahoma they may inher- recognize that have both to activity lands. spect to tribal on tribal authority under IGRA authority and the ent Compact represent In that does sense, arise out of to decide tort claims which However, law of the State of Oklahoma. occurring at a tribal casino. events legal relationship between the State of plaintiff is a tribal immaterial whether Nation under Oklahoma and Cherokee tribe, member, of another or a non- member Compact regulator is not one of and licensee Indian, voluntary he or she enters onto when Bahe, Bittle v. 2008 OK as the case of Tribe. I land to do business with the relationship in the case 192 P.3d 810.1 The opinion. I would re- cannot concur government government "a to at hand is 1) trial court to: mand the matter to the relationship"2 involving sovereign to sover a leaving parties' true intent in consider the Compact represents eign agreement. The referring jurisdiction quo and status mutually agreed under which conditions 2) jurisdiction;" allow "court of may conduct Class III the Cherokee Nation appropriate attempt to make an Tribe to gaming on lands located within the Cherokee evidentiary showing that enter- its of Oklahoma. territorial limits of State core, component a prise serves essential 3) Tribe; security of the the economic Compact, T4 Under the the Cherokee Na showing attempt to make a allow the Tribe its tion waived jurisdiction the State's assertion of system liability compara agreed to a of tort self-gover- infringe on the would Tribe's to that found Oklahoma's Governmen ble nance. However, Compact tal Tort Claims Act. expressly does not extend Oklahoma's Gov REIF, J., dissenting: Tort Act or other ernmental Claims respectfully 1 1 I dissent. tort law to the lands of the Cherokee Oklahoma majority importantly, holds that a State District nat ion.3 More expressly allocate civil to determine the Habil- does Court has Bahe, delegation power to the State of this Court held involves no In the case of Bittle v. activity. regulate gaming Oklahoma to had State District Court shop" liability determine the "dram of an Indian land under tribe for alcohol served on tribal 2. Part Subsection Compact. However, case, in the Bittle license the State. delegated power majority plaintiff Cossey the State of exercised as characterizes by Congress regulate the sale and distribution an "invitee" and declares "the Tribe had the keep duty of alсohol Indian tribes. I concurred Biffle to exercise reasonable care to opinion premises reasonably that Indian tribes safe condition and to because I am the relationship Cossey dependent to the of conditions which were in the stand in the same warn delegated power they such as dangers, State's exercise of of hidden snares nature pit- traps, power by statement of the Con falls." While this is correct do to the direct exercise of such liability, impose premises gress. common law rules of Because could "dram courts, part shop" liability, are of the tort law of the State of in state rules enforceable measure, Nothing regulatory Oklahoma. in the record reflects the State of Oklahoma could adopted common law liability its dele the Cherokee Nation has also extend such in exercise of Biffle, premises liability gated as the law of the Cher- power. Unlike the case at hand rules of disputes involving to the State of Oklahoma for tort claims non-Indians is no barrier exercise of against the Courts the Cherokee Nation that arise from gaming activity the Cherokee Nation's of the Cherokee Nation over a non-Indian's Cherokee lands.4 tort claim the Cherokee Nation for activity by the Cherokee Nation on Cherokee 1 5 The State Oklahoma and the Chero lands. Compact While the a secures tort agreed expressly kee Nation "Th[e] remedy against the Cherokee Nation for In tribal, Compact shall not alter federal or alike, dians and non-Indians it does not se adjudicatory jurisdic state civil or criminal cure the enforcement of that remedy in the words, tion." In other a court or courts of Oklahoma, courts the State of or competent jurisdiction to determine the lia federal in courts absence an independent bility of the Cherokee Nation under question, federal such as a denial of due Compact would be the same court or courts process.6 adjudicate liability could of the activity Nation Cherokee for tribal on tribal KAUGER, J., dissenting to the denial of Compact. land in absence of the In non- rehearing: cases, Compact the Courts of the Cherokee grant 1 1 I would rehearing to only ju Nation are the courts of re-examine adjudicate plurality opinion. risdiction to liability activity by Cherokee Nation for the Chero

kee Nation on Cherokee lands.5

I 6 The fact that tribal courts are courts jurisdiction respect private

limited with importanily, Compact okee Nation. More tion can exercise over a non-Indian's require adopt does not the Cherokee Nation to compact-based or against tort claim the Cherokee law, apply any particular only rules of tort but activity only Nation on Cherokee Lands. The patrons facility "ensure that aof are afforded Compact condition in the for the exercise of process seeking receiving just due in and tribal court is that the Cherokee Na- compensation reasonable for a tort claim for patrons facility tion "ensure that aof are afford- personal injury property damage." or The Com- process seeking ed due receiving just in pact only regarding application is not silent compensation reasonable for a tort claim." law, D, of Oklahoma tort but Part Subsection my opinion, it is the claimant that has the burden applica- reflects intent that tribal tort law is the demonstrating process the denial of due a provides ble tort law. Subsection D in remedies process court. Such denial of due could cases where the Tribe has no insurance or inade- conceivably give question rise to a federal quate pay insurance to a tort claim. In such support juris- would the exercise of federal court cases the Tribe must establish an escrow Compact-based diction over a against tort claim awards, (2) pay give account to the claimant and the Cherokee generally Nation. the state certain information about the escrow exercising mandated that no Indian Tribe in account, (3) provide hearing "notice and powers government deprive any per- of self shall opportunities with the tribe's tort accordance liberty property process son of without due law, added.) any." (Emphasis if § law. Title 25 U.S.C. 1302. This includes exer- judicial power. cise of its Title 25 U.S.C. 2710(d)(3)(C)(i) (ii). 4. Title 25 U.S.C. 130102). concurring part; dissenting part exceptions" Even if one of the "Montana was opinion juris- asserts that there are at three least required jurisdiction by for the exercise of dictional state or tribal court- options-federal, Courts of the Cherokee Nation, I believe a non- presented. My disagreement based on the facts patron at a Cherokee Nation casino has concurring part; dissenting part with the voluntarily entered tribal land to conduct com- opinion concerning federal court tribe, activity way mercial with the in the same that a tort claim the Cherokee Nation might non-Indian enter tribal land to conduct arising under the does not in and of nursery business with the Cherokee Nation's question support itself involve a federal instance, landscaping enterprise. In this latter jurisdiction by exercise of the federal courts. clearly the Courts of the Cherokee Nation have disagree excep- I also under the "second the conclusions in the Montana majority opinion concurring part; liability tion" to and the determine the Cherokee dissenting part opinion injury property that the Cherokee Nation have for Na- loss sus- tion must demonstrate one of the tained "Montana ex- non-Indian in the course of ceptions" before the Courts of the Cherokee Na- transaction.

Case Details

Case Name: Cossey v. Cherokee Nation Enterprises, LLC

Court Name: Supreme Court of Oklahoma

Date Published: Jan 20, 2009

Citation: 212 P.3d 447

Docket Number: 105,300

Court Abbreviation: Okla.