Dorothy GRIFFITH, Plaintiff/Appellant, v. CHOCTAW CASINO OF POCOLA, Oklahoma, and the Choctaw Nation of Oklahoma, Defendants/Appellees.
No. 104,887.
Supreme Court of Oklahoma.
June 30, 2009.
Rehearing Denied April 12, 2010.
2009 OK 51 | 230 P.3d 488
Eric D. Janzen and Brett D. Cable, McAlester, OK, for defendants/appellees.
PER CURIAM.
¶1 One question is presented in this appeal: Is the state district court a court of competent jurisdiction as used in the gaming compact between the Choctaw Nation of Oklahoma and the State of Oklahoma such that the district court may exercise jurisdiction over this Indian-country arising negligence action filed by a casino patron against the Choctaw tribe and its casino? We answer in the affirmative.
I. Facts and Proceedings
¶2 The Choctaw Nation of Oklahoma, a federally recognized Indian tribe1 (Tribe), owns a casino which it operates through its tribal enterprise, the Choctaw Casino of Po-
¶3 Dorothy Griffith4 (Griffith) went to the casino on February 11, 2005. According to Griffith, as she and other patrons approached an entrance to the casino, she heard a casino guard directing patrons to the north entrance. As Griffith followed the others toward the north entrance, she stepped into a flowerbed and fell on her face and head. Griffith was treated in a hospital emergency room in Fort Smith, Arkansas. Griffith claimed her injuries were caused by the negligence of the casino employees and agents. Griffith submitted notice of tort claim to the casino and the Tribe pursuant to the compact.5 When the Tribe and the casino failed to act upon the tort claim, it was deemed denied.
¶4 Griffith filed a tort action in the state district court in LeFlore County against the casino and the Tribe. The Tribe moved to dismiss the tort action on the basis of tribal sovereign immunity from suit in state court, arguing that Oklahoma state courts may not exercise jurisdiction over a sovereign Indian tribe unless Congress or the Indian tribe has clearly consented to suit in state court or otherwise clearly waived tribal immunity. Griffith responded that the Tribe consented to suit in the compact which states the “tribe consents to suit on a limited basis with respect to tort claims” and the “tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to tort claims.” The Tribe argued that exclusive jurisdiction over tort claims arising in Indian country against the Tribe was vested in the tribal courts at the time the compact was executed; the compact preserved the tribal court‘s exclusive jurisdiction by declaring that the compact does not alter tribal, federal or state adjudicatory jurisdiction; and therefore, the consent to suit in a court of competent jurisdiction in the compact is consent to suit in tribal court only. The Honorable Ted A. Knight, Judge of the District Court, concluded that tribal courts and federal courts have jurisdiction over Indian tribes but state courts do not and dismissed the action.
¶5 Griffith appealed the dismissal. The Tribe moved to make this appeal a companion to the appeal from the same district court in Dye v. Choctaw Casino of Pocola, Oklahoma, No. 104,737, 2009 OK 52, 230 P.3d 507. The meaning of the phrase “court of competent jurisdiction” as used in the compact is also a pivotal issue in the Dye case. This Court denied the motion, noting the related Dye case, and assigned the appeal to the Court of Civil Appeals. Thereafter, this Court received a certified question as to whether the district court in Rogers County, Oklahoma, is a “court of competent jurisdiction” as that phrase is used in the tribal gaming compact between the Cherokee Nation and the State of Oklahoma in Cossey v. Cherokee Nation Enterprises, LLC, No. 105,300. We withdrew this case from assignment to the Court of Civil Appeals.
¶6 We recently handed down our opinion in Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, 212 P.3d 447, (mandate issued June 11, 2009), holding that the state district court is a court of competent jurisdiction as that phrase is used in the Cherokee Nation‘s tribal gaming compact. Today, in separate opinions in this case and in the related case of Dye v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 52, 230 P.3d 507 we determine that Oklahoma district courts are courts of competent jurisdiction as that phrase is used in Oklahoma‘s statutory model tribal gaming compact and therefore the state courts may exercise jurisdiction over the tort claims against the Choctaw Nation and its casino in Pocola, Oklahoma.
II. Standard of Review
¶7 A compact is defined as “an interstate [intergovernmental] agreement entered into to handle a particular problem or task.” Webster‘s New International Dictionary 461 (3rd ed.1961). The Tribe urges that the compact is a purely private contractual matter. However, the Model Tribal Gaming Compact may not be viewed as an ordinary private contract because it is a voter-approved statute codified in the Oklahoma Statutes. The compact is public law and must be interpreted by use of canons of statutory construction. Statutory construction is a question of law which we review de novo, without deference to the lower court. Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶ 5, 123 P.3d 5, 6.
III. The Indian Gaming Regulatory Act (IGRA)
¶8 In 1987, the United States Supreme Court decided that an Indian tribe may oper-
¶9 Congress had considered the problems and benefits of Indian gaming in committee hearings for at least three years before Cabazon. Congress enacted Public Law 100-446, finding that gaming was a means of economic development for the tribes that would promote tribal self-sufficiency and strengthened tribal governments. 102 Stat. 2467 (1988). In Public Law 100-446, Congress legalized gaming in Indian country6 and provided a statutory framework for regulating gaming in Indian country in IGRA.7
¶10 Congress attempted to balance the federal, tribal and state interests in Indian gaming through a system of joint regulation in IGRA.8 IGRA established three classes of Indian gaming.
gaming (all gambling not included in class I or class II gaming), tribal regulation is subject to the terms of an agreement between the tribe and the state, a tribal-state compact.
¶11 In creating the tribal-state compact system and authorizing state regulation of gambling in Indian country, IGRA does not specifically address the subjects of damages to members of the public that may be caused by wrongful activity of Indian tribes and the judicial relief against the tribes. Instead, IGRA specifically authorizes the tribes and states to compact as to “any other subjects that are directly or indirectly related to the operation of gaming activities.”
IV. The State-Tribal Gaming Act and The Model Tribal Gaming Compact
¶12 In 1988, the Oklahoma Legislature authorized the Governor to negotiate and enter into cooperative agreements with federally recognized Indian tribes in furtherance of federal policy and state-tribal relations, subject to approval by a legislative Joint Committee on State-Tribal Relations.9 At that time, Oklahoma permitted pari-mutuel wagering on horse races. Our governors negotiated and entered into off-track wagering compacts with numerous Indian tribes.10 The compacts are filed with the Oklahoma Secretary of the State as required by law.11
¶13 In 2004, Oklahoma voters approved casino-style gambling at horse race tracks and in Indian country. The Oklahoma Legislature passed the State-Tribal Gaming Act and sent it to a vote of the people.13 State Question No. 712, Legislative Referendum No. 335 (codified at
¶14 The model compact is offered, all or none, to the Indian tribes of Oklahoma, which if accepted, constitutes the gaming compact between this state and the accepting tribe for purposes of IGRA without any further action on behalf of the State of Oklahoma.
¶15 The model compact recites the tribe‘s limited consent to suit for patron tort claims, mandates liability insurance coverage for the benefit of the public, prohibits the liability insurer from asserting tribal immunity, prescribes the procedure for casino patrons to claim damages, and expresses the tribe‘s consent to suit.18 As to tort claims in Part 6(A), the compact requires the tribal enterprise19 to maintain public liability insurance to cover tort claims in the minimum amounts set out in the compact or specified in the Governmental Tort Claims Act.20 Part 6(A) prescribes a procedure for seeking damages for tort claims against the enterprise. That procedure begins with notice of the tort claim to the TCA or the tribal enterprise for investigation and approval or denial; and if the tribe or tribal agency denies the claim, the claimant is authorized to file a judicial proceeding to recover damages not to exceed the limits of the mandated public liability insurance coverage. Part 6(A) requires the enterprise to make pamphlets available to the casino patrons explaining the tort claim procedure and also explaining that the procedure is exclusive and that if it is not followed, the claim shall be forever barred.21
¶16 As to suits on tort claims, the tort claimant22 is permitted to maintain a judicial proceeding for any cause arising from a tort claim subject to the limitations in Part 6(C), and the tribe23 consents to suit subject to the monetary limits and procedural conditions in Part 6(A) and Part 6(C). The tribe also consents to suit against the enterprise in a court of competent jurisdiction,24 the language at issue here.25 In other words, the
tribe consents to suit two times. The first time the tribe consents to suit without any mention of a court in Part 6(A)(2), and the second time it consents to suit against its enterprise with mention of a court of competent jurisdiction in Part 6(C). Even if we were to find that our state courts are not competent to entertain a suit against the tribe‘s enterprise in Part 6(C), the tribe has also consented to be sued in Part 6(A)(2). We find no part in the compact where the tribe consents to suit “in tribal court only.”
¶17 The model compact unmistakably gives the casino patron the right to recover damages on tort claims against the Indian tribe and against the tribe‘s enterprise. The compact imposes specific conditions and limits on the right: 1) it limits the amount of damages for which the tribe and/or the enterprise will be liable up to the monetary limits of Oklahoma‘s governmental tort claims law, 2) it restricts enforcement of a damages award to the liability insurance and prohibits the insurer from asserting tribal immunity, 3) it prescribes special notice-of-claim procedures for recovery of damages parallel to the state governmental tort claims statutory procedure, 4) it authorizes a judicial remedy to recover tort damages, and 5) it provides the tribe‘s clear and express consent to suit for damages. The compact does not, however, restrict the casino patron to tort damages under tribal law nor does it limit the casino patron to suit against the tribe or its enterprise in tribal court.
¶18 Although there is no language in the model compact making tribal law or tribal courts the exclusive protection for a wrongfully injured casino patron, the Tribe takes the position that Part 9 limits its consent to suit to the tribal courts only. Part 9 reads: “This compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.” Part 9 expresses intent not to “alter” whatever court has adjudicatory jurisdiction, but it does nothing to define a court of competent jurisdiction.26
¶19 The model compact governs Indian-country gaming activities by consent of the Indian tribe. It acknowledges that the “tribe is a federally recognized tribal government possessing sovereign powers and the rights of self-government,”27 that the “state and the tribe maintain a government-to-government relationship, and that this Compact will help foster mutual respect and understanding among Indians and non-Indians.”28 Nothing in the compact provides that patron tort claims are to be adjudicated only in tribal court. Had that been the intent of the tribes and the state, the simple words “in tribal court only” could have been included in the compact.
¶20 We have carefully perused the model compact and studied the provisions in Part 6 pertaining to a casino patron‘s tort claim against the tribe. We conclude that the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron, whether suit be brought in state court, federal court, or tribal court.
V. “Court of Competent Jurisdiction”
¶21 Griffith took a position that the state district court is the “court of competent jurisdiction” by default because this is not a federal-question claim, the Tribe is not a citizen for purposes of diversity of citizenship, and the Tribe had no tribal courts when the statutory compact was negotiated, passed by the Oklahoma Legislature, approved by a vote of the people, signed by the Tribe, and/or published by the United States Secretary of the Interior. The Tribe, on the other
¶22 The Tribe argued that this Court has already recognized that a controversy such as the instant one lies exclusively in tribal court. The Tribe relies on an unpublished order of this Court in Muskogee (Creek) Nation Gaming Commission v. The Honorable Mary Fitzgerald, District Judge, No. 104,726. In that original action, the Creek Nation asked this Court to prohibit the state district court judge from proceeding further in Manwarring v. Muskogee (Creek) Nation Gaming Commission, No. CJ-207-745, Tulsa County District Court. This Court assumed original jurisdiction and issued the writ in an unpublished order. An unpublished order has no precedential value. Okla.Sup.Ct. R.1.200(b)(1) and (7),
¶23 The Tribe also made a very tenuous argument that the meaning of the words “court of competent jurisdiction” “are not for this Court to decide” because Part 12 of the compact expressly provides that interpretation issues shall be decided in arbitration with review in the federal courts. Part 12 of the compact deals with resolution of disputes between the parties-the tribe and the state. Part 12(2) is the “parties consent to the jurisdiction of such arbitration [American Arbitration Association] forum and court [federal district court] for such limited purposes and no other, and each waives immunity with respect thereto.” Without ruling, we express doubt that this is a dispute contemplated by Part 12 of the compact.
¶24 The phrase “court of competent jurisdiction” as used in federal statutes has long been construed to mean federal and state courts, Blackburn v. Portland Gold Mining Co., 175 U.S. 571, 20 S.Ct. 222, 44 L.Ed. 276 (1900), where the statute did not “in express language prescribe either a Federal court or a state court, and did not provide for exclusive or concurrent jurisdiction.” Shoshone Mining Co. v. Rutter, 177 U.S. 505, 506, 20 S.Ct. 726, 44 L.Ed. 864 (1900). State jurisprudence is in accord. Lewis v. Sac and Fox Tribe of Okla. Housing Authority, 1994 OK 20, ¶ 15, 896 P.2d 503, 509-510.
¶25 Federal, state, and even tribal laws utilize the phrase “court of competent jurisdiction.”29 Under basic rules of federal statutory construction, where the statute does not define its terms, they must be given their ordinary and natural meaning, Smith v. U.S., 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993); and if the phrase is not commonly understood, the court will inquire into the contemporaneous understanding, Roadway Express, Inc. v. Piper, 447 U.S. 752, 759, 100 S.Ct. 2455, 2460, 65 L.Ed.2d 488 (1980), or the common law meaning of the phrase. Gilbert v. U.S., 370 U.S. 650, 655, 82 S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962).
¶26 We recognize that as a matter of federal law, tribal immunity from suit in state court is not subject to diminution by the states and that an Indian tribe is subject to suit where Congress has authorized the suit or the tribe has waived immunity. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 756, 118 S.Ct. 1700, 1703, 140 L.Ed.2d 981 (1998).
VI. Summary
¶27 In summary, the Tribe claims that “in a court of competent jurisdiction” means “in tribal court only.” But the model compact does not say “in tribal court only.” The compact says the “tribe consents to suit ... with respect to tort claims” and the “tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim.” The language in the compact could have been easily restricted casino patrons’ tort remedy to tribal courts, if the tribal government representatives and the state government representatives who proposed the state-tribal gaming legislation directed that those words be used in the measure. “In tribal court only” could have been typed on the keyboard by whoever typed the proposed compact. It is that simple. The language in other tribal compacts have specified that tort actions against the tribe may be filed in tribal court only. We reject the Tribe‘s claim that the proponents of the state-tribal gaming legislation really intended to waive tribal immunity “in tribal court only” when the compact does not disclose that intent.
¶28 We hold that Oklahoma district courts are “courts of competent jurisdiction” as that phrase is used in the Model Tribal Gaming Compact codified at
DISMISSAL ORDER OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.
TAYLOR, V.C.J. (by separate writing), and OPALA (by separate writing), WATT, WINCHESTER, and COLBERT, JJ., concur.
KAUGER, J., (by separate writing) concurs in part and dissents in part.
EDMONDSON, C.J., and HARGRAVE and REIF (by separate writing), JJ., dissent.
TAYLOR, V.C.J., concurring:
¶1 Today‘s per curiam opinion holds that our district courts are courts of competent jurisdiction in the state Model Tribal Gaming Compact (model compact),
¶2 The model compact, at Part 8, provides that the operation of a class III gaming casino in Indian country must comply with state law. Part 8 delineates the oversight and monitoring duties of the Office of State Finance as the state compliance agent (SCA), requiring the SCA to give written notice of any suspected “violation of this Compact or
¶3 Also, our opinion in Cossey v. Cherokee Nation Enterprises, LLC compels today‘s holding. Notwithstanding the many factors that distinguish Cossey from the instant case, the primary issue in Cossey was the same as the issue here-whether the state district court is a court of competent jurisdiction to entertain an Indian casino patron‘s tort claim against an Indian tribe under the model compact. Cossey analyzed federal and state jurisprudence in assigning meaning to “court of competent jurisprudence” in the model compact1 and reached the same conclusion that today‘s per curiam opinion reached through its statutory construction analysis.
OPALA, J., concurring
¶1 I write in concurrence to support the court‘s construction of the key phrase “the court of competent jurisdiction.”
¶2 The claim we deal with in this cause-a common law tort-was created by the cooperative effort of three separate levels of governmental power: (1) the federal sovereign‘s authorization of the compact1 that created the claim before us and by (2) the State of Oklahoma entering into a federally-authorized compact2 with (3) the Choctaw Nation. It is in light of the tripartite joinder of sovereign powers that we must interpret the key phrase “a court of competent jurisdiction.”3 We do so here by not excluding any one of the three birth-giving participants. Instead, we acknowledge that each of them, in its own court, may assume original jurisdiction over the casino patron‘s tort claim. The Nation has agreed to share jurisdiction with the other two sovereigns, the State and the federal government. The casino patron‘s tort claim is not, and cannot be, denominated as Indian law.4 Our interpretation opens the door and keeps it widely open until one or more of the participating sovereigns should decline the opportunity to extend its adjudicative power over a casino patron‘s cause of action. Inasmuch as the casino patron‘s tort claim is a product created by a legal cooperation among the three sovereigns, the construction to be placed on the key phrase “the court of competent juris-
¶3 A casino patron‘s tort claim for injury sustained on tribal casino‘s premises is governed neither by tribal law nor by Oklahoma state law. Rather, it is the product of compact-agreed terms of liability that may be imposed. A compact is defined as “an interstate [intergovernmental] agreement entered into to handle a particular problem or task.”6 A claim crafted pursuant to compact law-the law agreed upon by the parties to the compact-authorized negotiations-should be enforceable by the signatory parties, the state and the tribe as well as by the federal courts. In the absence of a definition different from that which stands crafted by the text for the key term “the court of competent jurisdiction“, the phrase used by the compact should include a proper court of all three powers which participated in creating the compact.
KAUGER, J., concurring in part/dissenting in part:
¶1 My analysis of the core issues remains unchanged from what I expressed in Cossey v. Cherokee Nation Enterprises, LLC., 2009 OK 6, 212 P.3d 447 (rehearing denied June 11, 2009). I was troubled by two implications in Cossey. The writing implied that: 1) tribal courts are not courts of competent jurisdiction; and 2) jurisdiction might depend on whether the casino patron was an Indian or a non-Indian. Today‘s opinion clearly dispels these concerns, holding that: 1) the casino patron may select tribal courts as a forum for bringing such a tort claim because a tribal court is “court of competent jurisdiction;” and 2) recognizing that the plaintiff is a non-Indian, non-tribal member who voluntarily entered onto tribal land to do business, thus subjecting herself to potential tribal court jurisdiction.
¶2 Nevertheless, the majority‘s analysis of the issues continues to bother me. The majority opinion states: “[w]e conclude that the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron whether suit be brought in state court, federal court or tribal court.” I agree that the first portion of this statement is true, the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron. It is the remainder of the statement which is unsupported. The crux of this dispute, and the reason for five separate writings in this cause as well as five separate writings in Cossey, is that the compact is obviously ambiguous because it does not clearly and unequivocally state which court has jurisdiction.
¶3 The majority makes the finding of clarity without supporting evidence. Nevertheless, the Court might have had the opportunity to shed light on this ambiguity. In the companion case of Dye v. Choctaw Casino of Pocola, No. 104,737, 2009 OK 52, 230 P.3d 507 also decided today, the State Treasurer, in his capacity as lead State negotiator for the 2004 Model Gaming Compact, filed leave of the Court on May 15, 2008, to file a statement regarding the compact. However, the Court is precluded from considering this statement [whatever it says] because the application was denied and the statement was stricken from the record on May 27, 2008.1 We are once again faced with the same problem as in Cossey-the need to remand the matter to consider extrinsic evidence of the parties’ intent.2
¶4 I agree that there is no express, specific language in the model compact making tribal law or tribal courts the exclusive forum for a wrongfully injured casino patron. This leads to the compact‘s ambiguity. The compact does, however, specifically provide, in Part 9, that “[t]his compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.” Alteration may occur by expansion or contraction. Because Oklahoma is not a
¶5 The majority opinion acknowledges that the question of whether exclusive jurisdiction over torts arising on tribal land was vested in tribal courts at the time the compact was executed has not been well-settled. Yet, settling this question is critical to the analysis because of the Part 9 language. Neither the majority in today‘s opinion nor Cossey discusses or analyzes any of the cases which have addressed this issue and unanimously held that the tribal courts have jurisdiction (some negotiated under the compact, some inherent).4 In addition to side stepping
¶6 Part 6(A)(2), in which the tribe consents to suit, is limited by subsection “C of this part.” Subsection C contains the language regarding court of competent jurisdiction. Obviously, the compact could have referred to “tribal court only,” “state court only,” or “both” courts to reflect the parties’ intent, but it does not. Consequently, the portion of the compact in which existing jurisdiction is not altered becomes imperative when determining intent-yet the question remains ignored and the Court merely pontificates about the meaning. I do believe that because one size doesn‘t fit all insofar as tribal courts are concerned, the compact language was deliberately left nonspecific so that the compact could be adapted to fit various jurisdictional scenarios.
Although the lawsuit was not a tort claim from a casino patron, the Court‘s discussion of IGRA is illuminating in that it noted that “[T]he legislative history indicates that Congress did not intend to transfer any jurisdictional or regulatory power to the states by means of IGRA unless a tribe consented to such a transfer in a tribal-state compact.” The Court also recognized that “Tribal-State compacts are at the core of the scheme Congress developed to balance the interests of the federal government, the states, and the tribes. They are a creation of federal law, and IGRA prescribes ‘the permissible scope of a Tribal-State compact.‘”
¶7 All statutory ambiguities are generally construed in favor of Indian sovereignty.5 Evidence of what the compacting parties truly intended can also be found by considering the compact as a whole.6 The Court neglects to consider that in addition to tort claims, the same provisions apply for prize claim disputes. Immunity is waived for prize claim disputes and procedures are set forth much like tort claims. Did the federal government (through IGRA) and the State of Oklahoma and Oklahoma Indian Tribes (through compacting) intend that if a patron enters onto tribal land, voluntarily engages in tribal gaming activities, disputes a prize claim (or lack thereof), that the plaintiff could readily choose between three forums as the concurring opinion suggests?
¶8 While this may one day be the law-depending on what the United States Supreme Court ultimately decides-it is not now, nor has the concurring opinion provided any support in its assertions to show that it is. The majority‘s analysis is bottomed on the traditional right of a plaintiff in a civil lawsuit to choose the venue of the lawsuit.
¶9 I am also puzzled by the majority‘s use of the “voter-approved” compact by citing the ballot title in its attempt to bolster the argument that the compact is no ordinary contract and that the voters somehow approved one court‘s jurisdiction over another. The verbatim recitation of the ballot title clearly shows the voters neither implicitly nor expressly knowingly voted concerning the jurisdiction of tort claims. At 2004 Okla. Sess. Laws, ch. 316, it provides:
This measure creates the State-Tribal Gaming Act. It would allow some types of gaming machines at some horse race tracks in this state. The Oklahoma Horse Racing Commission would oversee the new types of gaming machines. It would require that a portion of the money wagered on such gaming be paid to the state. Some of the money would go to purses for horse races. Some of the money would go to the horse race tracks. The measure also provides a model compact which Indian tribes may enter into and then operate such gaming machines on Indian lands. The model compact provides regulatory controls for the gaming authorized by the compact. The Office of State Finance would have the authority to oversee this gaming by the tribes. The state‘s portion of the money from the gaming authorized by this act would go for treatment of compulsive gambling disorders, to the Education Reform Revolving Fund and for college scholarships.
Clearly, the voters were asked to decide whether to allow gaming at race tracks and gaming on Indian land. There is nothing in this measure notifying the voter of anything at all regarding tort claims, much less which court would have jurisdiction of such claims. Consequently, the premise of both the majority opinion and the concurring opinion that “court of competent jurisdiction” is voter-sanctioned to be the state courts over the tribal court is inexplicable.
¶10 The majority opinion surmises that the state, by virtue of IGRA and the language of the compact, acquires concurrent jurisdiction with tribal courts over gaming-related tort claims against Indian Tribes which have a Gaming Compact with the state. To reach this conclusion, the majority must assume, without deciding, that courts of the State of Oklahoma are generally courts of competent jurisdiction to adjudicate tort claims against Indian tribes for tribal activity on tribal land. It intimates that this jurisdiction is established by the authority of the Oklahoma constitution and that no federal law or state statute may alter it.
¶11 The fallacy of this reasoning is exemplified by the Federal Indian Child Welfare Act (FICWA).7 Under certain circumstances Oklahoma lacks any authority over an Indian child. For instance, if the child lives on trust or restricted land, or in a dependent Indian community, the state may not have the authority to proceed and the case must be heard in tribal court. In other cases, jurisdiction with the state is concurrent, but the state, in the absence of good cause, must transfer the proceeding to the tribal court.8
The FICWA, as does IGRA, illustrates that Congress can and does decide whether the State of Oklahoma may assert civil jurisdiction over Indian tribes, notwithstanding the assertion that “adjudicatory jurisdiction is constitutionally vested in our state courts.”
CONCLUSION
¶12 The United States Constitution recognizes that Indian Tribes are to be treated on an equal level with the governments of foreign nations as well as the states.9 The Oklahoma Constitution recognizes that all tribal lands lying within Oklahoma boundaries shall be subject to the jurisdiction of the United States.10 IGRA embodies the general goal of federal Indian policy: to allow tribal self-government with federal control.11 It requires states and tribes to negotiate regarding the scope of authorized gaming and the State‘s role in Indian gaming. As part of this process, IGRA allows states and tribes to negotiate and to include jurisdiction-shifting provisions in the compact.12 Had Congress not considered tribal courts to have subject matter jurisdiction over lawsuits
¶13 This whole discussion may become moot. The compact became effective February 9, 2005, and it does not expire until 2020. At that time it automatically renews for successive 15 year periods. However, the compact also provides that it may be terminated by mutual consent. If the Tribe and the State are truly in accord with what was their mutual intent at the time of compacting, they may terminate and renegotiate the compact insofar as “a court of competent jurisdiction” is concerned.13
Done by order of the Supreme Court this 27th day of May, 2008.
/s/ James R. Winchester
CHIEF JUSTICE
REIF, J., with whom EDMONDSON, C.J., joins, dissenting.
¶1 I respectfully dissent.
¶2 The case at hand involves the same jurisdictional issue as the case of Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, 212 P.3d 447; that is, whether the courts of the State of Oklahoma have jurisdiction of tort claims against an Indian tribe that arise from tribal gaming operations on tribal lands. This controversy stems from the fact that the Gaming Compacts between the State and Indian tribes do not specifically state that State courts have jurisdiction over such claims. The majority opinion in Cossey and the majority opinion herein interpret the tribe‘s “consent to suit in a court of competent jurisdiction” set forth in the Compacts as conferring jurisdiction on State courts. In Cossey, I dissented from the majority holding that this language gives State courts jurisdiction over gaming-related tort claims against the Cherokee Nation. The same analysis and authority set forth in my dissent in Cossey lead me to likewise dissent from the majority holding herein that this language gives State courts jurisdiction over such tort claims against the Choctaw Nation.
¶3 Under the majority interpretations, Oklahoma courts acquire concurrent jurisdiction with tribal courts over gaming-related tort claims against Indian tribes that have a Gaming Compact with the State. The majority herein reasons that if tribal courts were intended to be the only courts of competent
¶4 My disagreement with the majority on this point stems from the fact that the courts of the State of Oklahoma are not generally courts of competent jurisdiction to adjudicate tort claims against Indian tribes for tribal activity on tribal lands. The majority opinions in both Cossey and the case at hand acknowledge that the State of Oklahoma did not assume jurisdiction over tribal lands pursuant to
¶5 In my opinion, the key to this controversy lies in the sovereign to sovereign status quo that exists between the State of Oklahoma and Indian tribe at the time they enter into any type of compact. This status quo is best described in the Motor Fuel Compact Act: “Both the State of Oklahoma and the accepting Indian tribe recognize, respect and accept the fact that under applicable laws each is a sovereign with dominion over their respective territories and governments.”
¶6 In the Federal Indian Gaming Act, Congress expressly authorized the State and Indian tribes to change their sovereignty status quo with respect to (1) the application of the criminal and civil laws and regulations of the Indian tribe or the State and (2) the allocation of criminal and civil jurisdiction between the State and Indian tribe.
¶7 In other words, the Compact does not alter the sovereignty status quo as to courts that possess competent jurisdiction to adjudicate a claim against the tribe for tribal activity on tribal land. In view of this fact, use of the modifying term “competent jurisdiction” to describe the court in which the tribe consents to suit, clearly refers to courts which have jurisdiction to adjudicate claims against the tribe in the absence of the compact. In this context, the modifying term “competent jurisdiction” is just as effective to limit jurisdiction to tribal courts as saying “in tribal court only.”
¶8 Even though I dissent from the holdings of the majority opinions, I readily agree with the views expressed in the opinions that one of the key purposes of the Gaming Compacts is to hold tribes liable for personal injury and property loss sustained by patrons and attributable to tribal gaming operations. To achieve this end, the State sought and received (1) the tribe‘s waiver of sovereign immunity and a claims process to pursue tribal liability comparable to that found in Oklahoma‘s Governmental Tort Claims Act, (2) the tribe‘s consent to suit on disputed claims in a court competent to determine tribal liability, and (3) the tribe‘s assurance that patrons would be afforded due process in seeking and receiving just and reasonable compensation for a tort claim for personal injury or property damage. Nowhere in the Compacts at issue, however, did the State and tribes expressly agree that Oklahoma law would apply in this process or that State courts were empowered to determine tribal liability. Perhaps my chief disagreement with the majority opinions in Cossey and the case at hand lies in the fact that they extend state law and state civil adjudicatory jurisdiction to tribal lands and tribal governments by implication when the parties did not expressly agree to do so in the face of express
¶9 In my opinion, the only provision in the Compact that implicates the exercise of jurisdiction over a tort claim by a court other than a tribal court is the “due process” provision. In this provision, tribes agree to “ensure that patrons of a facility are afforded due process in seeking and receiving just and reasonable compensation for a tort claim for personal injury and property damage.” Congress has generally mandated that no Indian tribe in exercising powers of self-government shall deprive any person of liberty or property without due process of law.
¶10 For the foregoing reasons I would affirm the district court‘s dismissal of the plaintiff‘s district court suit against the Choctaw Casino of Pocola and the Choctaw Nation.
Notes
(a) Exclusive jurisdiction. An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court. In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child‘s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child‘s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
(c) State court proceedings; intervention. In any State court proceeding for the foster
care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child‘s tribe shall have a right to intervene at any point in the proceeding. (d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes. The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.
The Congress finds that-
(1) numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue;
(2) Federal courts have held that section 81 of this title requires Secretarial review of management contracts dealing with Indian gaming, but does not provide standards for approval of such contracts;
(3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands;
(4) a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government; and
(5) Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.
The purpose of this chapter is-
(1) to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments;
(2) to provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players; and
(3) to declare that the establishment of independent Federal regulatory authority for gaming on Indian lands, the establishment of Federal standards for gaming on Indian lands, and the establishment of a National Indian Gaming Commission are necessary to meet congressional concerns regarding gaming and to protect such gaming as a means of generating tribal revenue.
(C) Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to-
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;
B. This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others are authorized to conduct electronic gaming in any form other than pari-mutual wagering on live horse racing pursuant to any governmental action of the state or court order following the effective date of this Compact, the Compact shall automatically renew for successive additional fifteen-year terms; provided that, within one hundred eighty (180) days of the expiration of this Compact or any renewal thereof, either the tribe or the state, acting through its Governor, may request to renegotiate the terms of subsections A and E of Part 11 of this Compact.
C. This Compact shall remain in full force and effect until the sooner of expiration of the term or until the Compact is terminated by mutual consent of the parties....
The state hereby agrees that this subsection is severable from this Compact and shall automatically be severed from this Compact in the event that the United Stated Department of the Interior determines that these provisions exceed the state‘s authority under IGRA.
A. Tort Claims. The enterprise shall ensure that patrons of a facility are afforded due process in seeking and receiving just and reasonable compensation for a tort claim for personal injury or property damage against the enterprise arising out of incidents occurring at a facility, hereinafter “tort claim“, as follows:
1. During the term of this Compact, the enterprise shall maintain public liability insurance for the express purpose of covering and satisfying tort claims. The insurance shall have liability limits of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) for any one person and Two Million Dollars ($2,000,000.00) for any one occurrence for personal injury, and One Million Dollars ($1,000,000.00) for any one occurrence for property damage, hereinafter the “limit of liability“, or the corresponding limits under the Governmental Tort Claims Act, whichever is greater. No tort claim shall be paid, or be the subject of any award, in excess of the limit of liability;
2. The tribe consents to suit on a limited basis with respect to tort claims subject to the limitations set forth in this subsection and subsection C of this Part. No consents to suit with respect to tort claims, or as to any other claims against the tribe shall be deemed to have been made under this Compact, except as provided in subsections B and C of this Part;
3. The enterprise‘s insurance policy shall include an endorsement providing that the insurer may not invoke tribal sovereign immunity in connection with any claim made within the limit of liability if the claim complies with the limited consent provisions of subsection C of this Part. Copies of all such insurance policies shall be forwarded to the SCA;
4. Any patron having a tort claim shall file a written tort claim notice by delivery to the enterprise or the TCA. The date the tort claim notice is filed with the enterprise or the TCA shall be deemed the official date of filing the tort claim notice. The tort claim notice shall be filed within one (1) year of the date of the event which allegedly caused the claimed loss. Failure to file the tort claim notice during such period of time shall forever bar such tort claim; provided that a tort claim notice filed with the enterprise or the TCA more than ninety (90) days, but within one (1) year, after the event shall be deemed to be timely filed, but any judgment thereon shall be reduced by ten percent (10%).
5. If the tort claim notice is filed with the TCA, the TCA shall forward a copy of the tort claim to the enterprise and the SCA within forty-eight (48) hours of filing, and if the tort claim notice is filed with the enterprise, the enterprise shall forward a copy of the tort claim to the TCA and the SCA within forty-eight (48) hours of filing;
6. The tort claim notice shall state the date, time, place and circumstances of the incident upon which the tort claim is based, the identity of any persons known to have information regarding the incident, including employees or others involved in or who witnessed the incident, the amount of compensation and the basis for said relief; the name, address and telephone number of the claimant, and the name, address and telephone number of any representative authorized to act or settle the claim on behalf of the claimant;
7. All tort claim notices shall be signed by the claimant. The rules and regulations may
additionally require that the tort claim notices be signed under oath. The rules and regulations [TCA, rules and regulations as defined in Part 3(22)] may also require that as a condition of prosecuting tort claims, the claimant shall appear to be interviewed or deposed at least once under reasonable circumstances, which shall include the attendance of the claimant‘s legal counsel if requested; provided that the enterprise shall afford claimant at least thirty (30) days’ written notice of the interview or deposition; and provided further that the claimant‘s failure to appear without cause for any interview or deposition properly noticed pursuant to this paragraph shall be deemed a voluntary withdrawal of the tort claim; 8. The enterprise shall promptly review, investigate, and make a determination regarding the tort claim. Any portion of a tort claim which is unresolved shall be deemed denied if the enterprise fails to notify the claimant in writing of its approval within ninety (90) days of the filing date, unless the parties by written agreement extend the date by which a denial shall be deemed issued if no other action is taken. Each extension shall be for no more than ninety (90) days, but there shall be no limit on the number of written agreements for extensions, provided that no written agreement for extension shall be valid unless signed by the claimant and an authorized representative of the enterprise. The claimant and the enterprise may continue attempts to settle a claim beyond an extended date; provided, settlement negotiations shall not extend the date of denial in the absence of a written agreement for extension as required by this paragraph;
9. A judicial proceeding for any cause arising from a tort claim may be maintained in accordance with and subject to the limitations of subsection C of this Part only if the following requirements have been met:
a. the claimant has followed all procedures required by this Part, including, without limitation, the delivery of a valid and timely written tort claim notice to the enterprise,
b. the enterprise has denied the tort claim, and
c. the claimant has filed the judicial proceeding no later than the one-hundred-eightieth day after denial of the claim by the enterprise; provided, that neither the claimant nor the enterprise may agree to extend the time to commence a judicial proceeding; and
10. Notices explaining the procedure and time limitations with respect to making a tort claim shall be prominently posted in the facility. Such notices shall explain the method and places for making a tort claim, that this procedure is the exclusive method of making a tort claim, and that claims that do not follow these procedures shall be forever barred. The enterprise shall make pamphlets available to all patrons of the facility and shall provide such pamphlets to a claimant within five (5) days of the filing of a claim. (Bold Added.)
C. Limited Consent to Suit for Tort Claims and Prize Claims. The tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim or prize claim if all requirements of paragraph 9 of subsection A or all requirements of paragraph 11 of subsection B of this Part have been met; provided that such consent shall be subject to the following additional conditions and limitations:
1. For tort claims, consent to suit is granted only to the extent such claim or any award or judgment rendered thereon does not exceed the limit of liability. Under no circumstances shall any consent to suit be effective as to any award which exceeds such applicable amounts. This consent shall only extend to the patron actually claiming to have been injured. A tort claim shall not be assignable. In the event any assignment of the tort claim is made in violation of this Compact, or any person other than the patron claiming the injury becomes a party to any action hereunder, this consent shall be deemed revoked for all purposes. Notwithstanding the foregoing, consent to suit shall not be revoked if an action on a tort claim is filed by (i) a court appointed representative of a claimant‘s estate, (ii) an indispensable party, or (iii) a health provider or other party subrogated to the claimant‘s rights by virtue of any insurance policy; provided, that nothing herein is intended to, or shall constitute a consent to suit against the enterprise as to such party except to the extent such party‘s claim is:
a. in lieu of and identical to the claim that would have been made by the claimant directly but for the appointment of said representative or indispensable party, and partic-
ipation of such other party is in lieu of and not in addition to pursuit of the claim by the patron, and b. the claim of such other party would have been subject to a consent to suit hereunder if it had been made by the claimant directly; and (Bold added.)