Lewis v. Sac & Fox Tribe of Oklahoma Housing Authority

Lewis, F. James Joann LEWIS Wife, Plaintiffs-

Husband Appellees, Wolf, Plaintiff, Marjorie L. TRIBE AND FOX OF OKLA- The SAC AUTHORITY, HOUSING HOMA a/k/a Housing Sac Oklahoma, Indians of Fox Tribe of a/k/a Fox of the Sac & Nation, and Fox Indian Hous- Sac a/k/a Oklahoma, ing Authority Defendant-

Appellant.

No. 78825. Supreme Court of Oklahoma. 9, 1994.

Feb. 15, 1995. Rehearing Denied June

505 Work, Seminole,

L. for defendant- Susan appellant. Combs, Shawnee, plaintiffs- for

Douglas L. appellees.

OPALA, Justice. appeal presented The two issues are: ^[1] Has Congress affirmatively ousted of their concurrent state courts involving land contract actions to entertain buyers and Indian transactions between housing Indian authorities? state-created if not ^[2] Do the terms Mutual Agreement Help Occupancy between Indian plaintiffs and the state-created convey authority express an housing intent estates to the the surface and mineral both question in answer the plaintiffs? We first negative and the second affirma- tive.

I

THE OF LITIGATION ANATOMY is a feder- [Tribe] and Fox Nation The Sac In sovereign Indian tribe. ally recognized treaty into its first Tribe entered 1789 the n withthe United States much of its and ceded treaty-imposed migration followed land.1 A of which years, as a result over a number eventually in 1867 at its settled the Tribe Fox Reserva- on the Sac and final destination Territory.2 response in Indian tion land, Congress for settlers’ demands white designed implement treaty a entered into trea- Dawes Act.3 This provisions of the retain 800 acres. ty the Tribe to allowed land, of that each boundaries Within the Act, Harmar, 28; the General Allot- also called Treaty 3.The Dawes 7 Stat. Oklahoma at Fort U.S. -, Nation, Act, allotting provided Fox Tax Com’n v. Sac and 24 Stat. ment 124 L.Ed.2d tribal members land to individual reservation surplus purchasing for white settlers. Wright, to the Indian Tribes 2. M. A Guide Oklahoma, 225-6 right ing tribal member had the choose continued its existence as —the Congress one-quarter agency section. under the allotment Oklahoma Act. It treaty acquired simple property ratified the in 1891.4 title to the here fee by warranty in contest in deed 197k Housing Act of 1937 The United States imposes non-Indian owners. The deed no Low ushered Rent Public [1937 Act] ownership. property, restriction on Housing Program remedy- to assist states in city which is located in the limits Shaw- ing unsanitary housing unsafe and conditions nee, Oklahoma, originally had been a Kicka- Act, plaguing low-income strata.5 The 1937 allotment,14 poo desig- The site was provided statutory which also basis for housing Project nated as 90-05. Indians,6 furnishing housing to low-cost implemented appellees, the United States De- Joann and James F. Lewis Lewis], partment Housing [collectively Develop- of and Urban called who are tribal members, 22,1974 until It [HUD] ment 1962. was then that entered on December into program specifically Help HUD made the Occupancy Agreement available Mutual Country7 promulgated regu- Agreement] for Indian Authority. [MHO with the Pur- directly affecting lations the creation and suant to this contract Lewis’ was con- home housing project administration of Indian They authorities structed on the site. were ad- regulations give These the Indian paid Septerm [IHA].8 vised this home would be off on 1,1990 opportunity the IHA pass tribes establish an ber and title would then to them. through By warranty the either Authority convey tribal or deed the did framework of Legislature rights only, reserving law.9 Our enacted the to Lewis unto surface Housing gas Oklahoma Authorities Act10 which the oil and and other mineral itself rights the creation underlying property. authorizes local IHAs and of agencies.11 makes them state In sought specific perfor- this suit Lewis conformity with the Oklahoma Act the mance of the MHO contract and an account- Housing Authority ing gas of the Sac and Fox Tribe Authority for all oil and revenues the [Authority] of Oklahoma was created in conveyance. received since the date of the provides 1966.12 It housing Authority objected low-income for The both to the district tribal members and for other personam jurisdiction. Indians with court’s in rem and in challenge use HUD funds. In 198S the Authori- Its to state-court rest- ty reorganized (a) was under tribal law.13 two-prong Be- ed on a attack: sovereign- IHA immunity cause the Tribe’s had not housing authority15 received HUD status of the (b) approval operating for under the tribal law project’s claim “dependent as a step 1983—a needed to community” receive federal fund- Indian within the definition of ers, 4. rights, 26 Stat. 750-751. specified city and functions herein for county pursuant authorities created to this * * (1988). § 5. 42 U.S.C. added.) (Emphasis act :i.” Comm, 6. Staff of Senate on Interior and Insular (SF-66-4) By 12. tribal resolution of November Affairs, sess., Cong., Report 94th 1st on the Indi- 20, 1965, the Sac and Fox Tribe of Oklahoma Housing Effort in the United States with authorized the to transact business and (Comm.Print 1975). Appendices Selected powers pursuant exercise to the Oklahoma Hous- Act, ing supra Authorities note Id.; Ulmer, Legal Origin see also Mark K. The Housing and Nature Authorities and the Housing Programs, HUD Indian Housing Authority 13. Sac and Fox Act of Am.Indian Resolution SF-83-25. Section 302 of this act L.Rev. sovereign allows the to waive its immu- §§ 8. 24 C.F.R. 905.101-905.950 nity designates the tribal court as the forum housing authority in which the is to be sued. At §§ C.F.R. 905.125-26 given agency the time trial HUD had not final approval the 1983 Act. §§ seq. 63 O.S.1981 1051 et pertinent property 11. The terms 14. The of 63 O.S.1981 was later sold to a non-Indian provide Authority acquired simple that IHAs established under the Okla owner. The title fee owner, agen homa Act Authorities "shall be an the land's non-Indian held it who Oklahoma, cy pow possessing any ownership. State all without restrictions on Indian provide a method for the states to assume Country”.16 The trial court denied “Indian the action’s dismiss- Authority’s quest for “Indian criminal civil over and/or (for jurisdiction), subject matter al want of Country”.18 originally proposed, As PL-280 that, parties’ time of the con- ruling at the cognizance allowed states to assume without tract, question land in within part the consent of an affected tribe.19 As Country”. a bench trial After “Indian 1968,20 Rights Act of the Indian Civil Con- Lewis, gave judgment prius court nisi gress require amended PL-280 to convey directing Authority to to them its opt- state take some affirmative action when to the mineral interest contest.17 title ing to extend its to Indian Coun- Authority brings appeal. try.21 cognizance A state assert Country only if the enrolled Indians II given their consent tribal referen- PUB- THE FRAMEWORK OF OUTSIDE dum.22 THERE A LIC 83-280 IS “WIN- LAW OF OPPORTUNITY” FOR DOW Court has contin MIXED TO ADJUDICATE STATES emphasize congressional policy ued QUESTIONS OF STATE/FEDER- autonomy light fostering guiding tribal as a LAW, THE EX- WHEN AL/TRIBAL allocating to courts in states THEIR ERCISE OF JURISDICTION TRIB- complied NOT INFRINGE UPON PL-280.23 In DOES that have not with AL Court,24 SELF-GOVERNMENT Kennerly v. District the Court with jurisdic held from Montana concurrent state 1953, Congress promulgated

In There, Country. tion over Indian two mem- [hereinafter PL-280] Public Law 83-280 202, 207, 1083, 5, appeal sover- 480 U.S. 1087 n. 94 15.On abandoned its (1987)). immunity challenge, eign see note 59. L.Ed.2d 244 infra "dependent Country” Tribe, Okl., 16. "Indian includes May Seneca-Cayuga v. 19. State ex rel. § 77, communities" defined in 18 U.S.C. 1151 as 711 P.2d 86 follows: seq. §§ 1321 et (b) 25 U.S.C. dependent Indian communities "... all within the borders of the United States wheth- original subsequently acquired er within the appropri- 21. Because Oklahoma did not take the thereof, territory and whether within or with- PL-280, steps ate to take under a out the limits of state....” proper inquiry to be made in this case must focus congressional policy fostering upon tribal scheduling 17. The order below indicates Supreme autonomy light pertinent in the U.S. by jury.” cause was to be reached for "trial jurisprudence. Author- Court Ahboah v. According pre-trial to the conference order the Tribe, Okl., 625, ity 660 P.2d 629 n. 19 Kiowa agreed juiy.” parties "waive the Since had specific performance both claims—that for as accounting equitable cog- well as that for nizance, —are 1968”, April Rights Civil Act of Act of 22. “Indian appear the "waiver” does not 11, 1968, 90-284, (codified 77 as PL 82 Stat. Richardson., Okl., necessary. McCraw v. been 1301, 1302, §§ at 25 U.S.C. and 1303 amended (1982)). 620, (1969) (specific performance); 459 P.2d 623 Ltd., Okl., 892, Sanguine, Fleet v. 854 P.2d 896 n. (1993) (equitable accounting). U.S. -, Bourland, Dakota v. South 124 L.Ed.2d 606 Ra S.Ct. Country” to a broad definition 18. "Indian refers Board, Navajo v. Bureau mah School Inc. 1151, supra which found in 18 U.S.C. note Mexico, New Revenue of reservations, de- includes "formal and informal 3394, 3398, (1982); Mon S.Ct. communities, pendent and Indian allot- States, tana v. United ments, by the whether restricted or held in trust (1981); White S.Ct. Nation, supra Fox note United States.” Sac and Bracker, Apache Mountain Tribe Country Although § defines Indian 2578, 2583-2584, 142-145, 65 L.Ed.2d application exercise of federal criminal to the jurisdiction, its terms extend to civil Country, A. v. Oklahoma Tax as well. Indian U.S Kennerly Court, Com’n, (10th Cir.1987) (citing v. District 829 F.2d curiam). Indians, 480, 27 (per L.Ed.2d 507 Band Mission Cabazon California cognizance sued in divest state over all the Blackfeet Tribe were courts bers of bought Where, here, from a on a debt for food disputes among state court Indians. as private land within grocery store located on implicated, governs state law is the transac- the reservation. the exterior boundaries invoked, infringe- and is and there is no tion concluded Montana had not The Court upon self-government, ment tribal there can PL-280, complied the terms of because cognizance. barrier be no to state legislative took affirmative the state never jurisprudence Court’s civil over the action to assume clearly every supports the notion that not Reservation,25 Blackfeet controversy affecting Indians and their lands Kennerly, upon teachings which relies jurisdiction.32 In lies outside state-court governing Lee26 that “absent of Williams v. Oklahoma Tax Commission v. Graham33 the question always Congress, Acts of has recently sovereign Court held a tribal infringed upon been whether the state action counterclaim, immunity pressed in a state- right Indians to make of the reservation against tax court suit enforce a assessment them,”27 their own laws and be ruled does cigarette an Indian tribe for its sales and authority defeating concurrent not stand as receipts, bingo is not removable to in all civil cases. Its federal solely proce- forum; cognizable thrust “is with the it in a concerned remains state court. mechanisms which tribal consent dural Corp. In Cotton Petroleum v. New Mexico34 registered.”28 must be similarly pre the Court held that unless law, empted New Mexico can tax Montana, Another case from Fisher v. Dis- Court,29 overriding production gas by on-reservation trict stressed the con- of oil and gressional fostering self-gov- policy of tribal non-Indian lessees.35 There, ernment.30 while concurrent state sum, whenever Indian interests cognizance inappropriate, was found controversy, are in a tendered state court paramount Court reiterated test preliminary inquiry must make a into the preliminary inquiry calls for a into whether rights sought of nature to be settled.36 assumption jurisdiction infringe would Only litigation explicitly which is with upon self-government. tribal The Court rea- by Congress infringes drawn or that which provide appropri- soned tribal courts upon self-government tribal stands outside disputes ate forum for settlement of those permissible boundaries state-court personal property over interests of Indi- mind, cognizance. With this test in we revis relationships,31 ans which arise out tribal teachings Kennerly today and Fisher do not it jurisprudence extant Oklahoma on 24, 425, Kennerly, supra 25. note 400 U.S. at and held Montana divested of her concurrent jurisdiction. S.Ct. at 482. Lee, 217, 269, 26. Williams v. 358 U.S. 79 S.Ct. Id., 388, 30. 424 U.S. at 96 S.Ct. at 947. L.Ed.2d 251 Fisher, 29; Williams, supra supra 31. note note 220, Williams, 26, supra 27. note 358 U.S. at 26. S.Ct. at 271. See, e.g., Corp. 32. Cotton Petroleum v. New Mexi 24, 430, Kennerly, supra 28. note 400 U.S. at co, 109 S.Ct. only S.Ct. at 483. If states can assume civil L.Ed.2d 209 Tax Oklahoma Commission jurisdiction by complying with the terms of PL- Graham, 1519, 838, 1521, v. Indian tribes must choose between exclusive curiam). (per court and exclusive tribal court Id., jurisdiction. 400 U.S. at 91 S.Ct. at 485 Supra note 32. (Stewart, J., dissenting). Court, Fisher District Supra note 32. curiam). (per In Fisher the custodians of an Indian child com- 35. See discussion of the distinction between fed- adoption proceeding menced an pre-emption concept congressional in state court. eral and the statute, 372a, Relying 111(A), a ouster-of-jurisdiction on 25 U.S.C. doctrine in Part in- recognized the Montana Court concur- fra. adoption rent state and tribal over pronounced Indians. The Court that state-court 36. For a case where a court failed to take into cognizance infringed upon self-government relationship tribal consideration the character of which allocation of asserts that the constitutional state courts state/federal judicature.37 have no over contract actions involving Country, regardless lands Housing Authority Na- the Seminole Harjo,38 a property’s of the which status when the sale took tion v. case followed path pursued by Ahboah v. Author- place. principle For this relies Tribe,39 ity court Kiowa concluded jurisprudence, on Oklahoma Ahboah40 proceeded assumption that all on Harjo.41 reject We now the notion of an all- litigation among Indians lies dehors state- congressional inclusive ouster as an incorrect jurisdiction. plainly court Its overbroad exposition pertinent of the constitutional self-abnega- statement resulted in excessive principles. power tion of and a wholesale retreat from judicature con- that does accord with the specific today Our task for an calls principles analyze explain stitutional we inquiry into whether Oklahoma courts stand III, today in Part infra. ousted of their concurrent

Ill plaintiffs this contract action against sys IHA. our state-created Under OF STATE-COURT OUSTER federalism, sovereignty tem of a state’s JURISDICTION govern concurrent with that of the federal A. ment, subject only imposed by to limitations Supremacy Freight Clause.42 Yellow Sovereignty This Nation’s Dual Under System, Donnelly43 System, Inc. v. teaches Dual Scheme And Court State Their Courts Lose Concurrent Juris- authority, “state courts inherent Only By diction When Ousted An Ex- adjudi presumptively competent, are thus plicit Congressional Directive arising claims cate under the laws cognizance, Supra would confer state-court see State ex 41. note 37. (S.D.1988), Joseph Redwing, rel. 429 N.W.2d 49 denied, Art. cl. U.S. Const. Justice Scalia dis- cert. underpinnings cusses the constitutional for the (1989). There, L.Ed.2d court held it had sovereignty concept concurring opin- dual in his subject matter to establish the amount Levitt, 455, 469, ion in U.S. 110 v. 493 Tafflin support obligation, of and to enforce a child even 792, 800-801, (1990), S.Ct. though a had tribal court dissolved the Indian says: he where marriage pay sup and ordered the father to child federal "State courts have port (apparently setting quantum without causes of action not because it is 'conferred' obligation). upon Congress; by them the nor even because powers permit their inherent them to entertain Ahboah, 21; supra Housing Authority 37. note transitory arising action under the causes of Okl., Harjo, the Seminole Nation v. 790 P.2d 1098 see, foreign sovereigns, e.g., laws of McKenna (1990). Fisk, 241, 247-249, 11 L.Ed. 117 v. 1 How. (1843); laws of the United '[t]he but because States, Supra Relying just upon a 38. note 37. mechanical States are laws in the several binding analysis Country,” Harjo as much on the citizens and courts of “Indian holds that an The two thereof as the State laws are.... authority adjudicate Oklahoma court has no system jurisprudence, together form one entry arising forcible and detainer action from of the land for the which constitutes law tenancy Country. in Indian State; jurisdictions and the courts of the two foreign to each other....’ v. are Claflin Supra 39. note 21. Ahboah holds that a state 136-137, Houseman, 130, 23 L.Ed. 833 93 U.S. court cannot entertain over a forcible (1876); Minneapolis see also & St. Louis R. Co. entry proceeding against and detainer the benefi- 211, 221-223, Bombolis, U.S. 36 S.Ct. v. 241 cial owner of a trust allotment in lands located 595, 598-599, (1916). 961 60 L.Ed. Country. within Indian Supra note 21. 510 (2) legisla- implication unmistakable from give “To federal courts United States.”44 (3) history, incompatibility a clear tive jurisdiction over a federal cause exclusive jurisdiction and federal between state-court must,

action, in an exercise of its Congress interests.48 Clause, Supremacy affir powers under pre courts of their matively divest ouster-of-juris The constitutional jurisdiction.”45 In sumptively concurrent doctrine is not to be confused with diction identi v. Mobil Oil Court preemption. Preemption occurs federal Gulf Offshore by which a con different methods body fied three displaces federal law of state when may be gressional subject. state-court ouster effect state-court law on the same Unlike directive,47 ouster, (1) requires explicit statutory which that we examine the by an ed 46— 458-460, power U.S. at 110 S.Ct. at 795. The Court It takes an affirmative act of therefore suggested Supremacy to oust the States that the factors identified in under the Clause has Gulf 44, Offshore, supra one of our exercise what are the means of note sole —an power resolving juris cases to as ‘the of con- earliest gress referred to exclusive a claim federal-court Lovorn, 255, from state- to withdraw’ federal claims 457 U.S. diction. See Hathorn v. 266, Moore, 2421, 2428, jurisdiction. Houston v. 5 Wheat. court 102 S.Ct. 1, 26, added). (emphasis 5 L.Ed. 19 ("Only will rebut [the factors] ... Gulf Offshore Bombolis, U.S., 221, supra, at 36 See also S.Ct., 241 jurisdiction]"). presumption [of concurrent (concurrent jurisdiction exists at 598 express 42, excepted by constitutional limi- Tafflin, ‘unless supra note Justice Scalia ob- legislation'); valid Missouri ex rel. tation or "[i]n serves that the standard fields of exclusive Louis, Taylor, B. & M.R. Co. v. 266 U.S. St. jurisdiction, governing specif- federal statutes 47, 48, 45 S.Ct. 69 L.Ed. 247 brought ‘only’ ically recite that suit be ('As provision concerning [Congress] court, 1940, made no Company Investment Act of remedy, the federal and the state courts amended, 1429, § 84 80a- as 35(b)(5); Stat. 15 U.S.C. jurisdiction').” have concurrent of the federal 'exclusive,' Exchange courts shall be Securities 820, 1566, 110 S.Ct. 108 L.Ed.2d 1934, amended, 902, Act of as 48 Stat. 15 U.S.C. 834 78aa; 1938, 833, § Act Natural Gas 52 Stat. 717u; 43, 823, Employee § supra 15 U.S.C. Retirement Income Freight, note 44. Yellow 494 U.S. at 1974, 892, Security (quoting Tafflin, supra Act of 88 Stat. 29 U.S.C. 110 S.Ct. at 1568 from 458-460, 1132(e)(1); 42, 795, § or indeed even 110 S.Ct. at note Houseman, 130, citing be 'exclusive of v. federal courts shall Claflin 136-137, (1876), States,’ (criminal 23 L.Ed. 833 courts of the cases); 18 U.S.C. 3231 Gulf Offshore 477-478, 473, Corp., (admiralty, §§ 453 Co. v. Mobil Oil U.S. 28 U.S.C. 1333 maritime 2870, 2874-2875, cases), cases), prize (bankruptcy 69 L.Ed.2d Moore, 1, (patent, plant variety protection, copyright Wheat. See also Houston 25-26, (1820); cases), (actions Plaquemines Tropical against 5 L.Ed. 19 consuls or vice con- Henderson, states), (actions foreign Fruit Co. v. recovery suls of fine, 42 L.Ed. 1126 S.Ct. Charles penalty, or enforcement of or forfeiture in- Courtney, (seizures Dowd Box Co. 507- Congress), curred Act of on under 522-523, 7 L.Ed.2d 483 admiralty land or water not within and maritime Id., jurisdiction).” 493 U.S. at 110 S.Ct. at J., (Scalia, concurring). 801-802 Freight, supra note 494 U.S. at Yellow (quoting Tafflin, supra at 1568 Tafflin, supra 48. Justice Scalia observes note 42, 458-460, 795). note U.S. at 493 110 S.Ct. at 42, that: deeply presumption "This rooted in favor con- of implied perhaps preclusion "It is also true that jurisdiction current court is ... state rebutted if by can be established the fact that a statute affirmatively Congress ousts the state courts of courts, only plus expressly mentions federal jurisdiction particular over a federal claim.” jurisdiction the fact that state-court would 42, 458-460, Tafflin, supra note 493 U.S. at 110 plainly disrupt statutory scheme. That is 44, Offshore, supra at S.Ct. 792 795. note Gulf conceivably by part what was third meant considering propriety that "[i]n teaches of dictum, incompati- of the 'clear Gulf Offshore jurisdiction any particular state-court over feder- bility between state-court and fed- claim, begins presumption al the Court with the phrase interpreted ... If the is eral interests.' enjoy jurisdiction. that state courts concurrent that, broadly more than however—if it is taken however, Congress, may jurisdiction to confine power part on the of this Court to assert some explicitly implicitly.” the federal courts either or sys- to exclude state-court when Id., 478, (emphasis 453 U.S. at 101 2875 S.Ct. at temic federal interests make it undesirable—it added). absolutely prece- has no foundation in our 44, 478, Id., 469, Offshore,supra 46. dent.” (Scalia, J., 493 U.S. at 110 S.Ct. at 801 note Gulf 2875; 42, Tafflin, supra concurring). 101 S.Ct. at note 493

511 “explicit statutory suggest in that which would presence of an enactment that law for the has, conferring by statutory federal-court Congress explicit directive” exclusive some di- congressional jurisdiction, preemption rective, is matter cognizance ousted the state courts of ,49 which be effected disputes over contract between state-created intent by regulations agency of a act even federal project participants. IHAs and their Indian scope congressionally dele ing within the clearly The 1937 Act authorizes the establish- gated authority.50 Preemption alone cannot conformity ment of IHAs in to state law for jurisdiction to divest state courts of entertain purpose providing housing low-income federal-law claims. projects for Indians.54 Nor are we aware of any legislative history Harjo52 Congress by Because Ahboah51 and both failed “un- implication” assign to take into account the constitutional under- mistakable intended to juris- pinnings for the concurrent state-court IHA-spawned disputes purchas- with Indian analysis, may today diction we reassess only inquire ers to federal courts.55 We next prius cognizance present of the cause nisi into whether “state-court over binding precedential free from the force of Indians or activities on Indian lands would fitting It to revisit here restraint. is us sovereignty with tribal interfere self- congressional ouster notions infuse instances, government.”56 In those Freight’s teaching our law with Yellow that a advises, generally Court “the state courts are constitutionally state court has invested au- divested as a matter offederal thority any claim or issue or affected Although petition law.”57 in its in error the law, regulated by which ex- federal Authority sovereign relied for reversal on pressly withheld its Tribe, immunity argued of the it has not Congress. act of fact, appeal.58 Authority’s issue on Authority reply challenge brief informs us that its on has directed our at Act,53 nothing point tention to the 1937 but we find has been abandoned.59 LaPlante, 9, 15, Preemption may 49. occur distinct in- 56. in four Iowa Mut. Ins. Co. v. 971, 976, (2) (1987) by express statutoiy language; (citing stances: 107 S.Ct. Fisher, 29, Williams, pervasive regulatory supra supra scheme which infers the note note 26). presence congressional intent that the regulation supplemental did not need state-law provisions; an actual between when conflict LaPlante, 56, 15, supra note 480 U.S. at impossible state and federal makes it laws S.Ct. at 976. both; comply objectives where the purposes Congress are thwarted support 58. Claims to error for which there is no Service,Inc., Okl., Tong law. Toddv. Frank's argument authority are deemed abandoned. (1989); P.2d Missouri-Kansas-Texas R. Shaw, Okl., Hadnot v. (1992); 826 P.2d State, Okl., Co. v. 712 P.2d Echeverría, Okl., 744 P.2d Holbert v. (1987); Co., Okl., 962 n. 4 Peters v. Golden Oil F.C.C., 57, 64, City New York v. Jobe, (1979); Harley 600 P.2d 1637, 1642, Okl. 249 P.2d Cuesta, Fidelity de Federal Sav. & Loan Ass'n v. la relating 59. The states that all issues L.Ed.2d sovereign immunity the Tribe were aban- doned because of the “confusion in the record” Ahboah, supra note 21. concerning agency. its status as a tribal Authority explains recognize it that HUD failed Harjo, supra note 37. agency operating as an under tribal rather than state law. Act, supra 53. For a discussion of the 1937 see By mid-appeal its brief the informs this accompanying note 5 and text. approved court that had its 1993 HUD amend- and Fox ment 1983 Sac of (1990) § 54. The terms of 24 C.F.R. are: 905.125 Authority According Authority, the Act. to the provides Authority 1993 version that the "shall may pursuant "An be IHA established to a agency an the Sac and Fox Nation of Okla- be provides State law that for the establishment of of powers having purposes, homa the and duties necessary legal powers carry IHAs with all to added.) by (Emphasis law.” ... as established housing projects out low-income Indians.” for change, Authority urges, supports This its Offshore, supra argument property note 453 U.S. at that the contested lies in Indi- Gulf Country of the miner- and that its reservation A. Authority failed to over- has Because presumption Constitution’s the U.S. come Conveyancing, Law of The Oklahoma jurisdiction, concur- courts that state Law, courts, to hear claims aris- federal Than Tribal Governs rent with Bather Act, trial we affirm the ing under the Dispute Of This The Settlement subject upholds its matter ruling that court’s purchasers’ these Indian Authority requested cognizance The is not Today’s pronouncement claim to title. judicial of four tribal trial court take notice60 declaration as a broad understood be pre-trial filed with its laws which had been rights lies within litigation of Indian all is a 1987 amendment brief.61 Pertinent here cognizance of Okla- constitutional inherent Authority Housing and Fox to the 1988 Sac that, only when hold state courts. We homa Authority to requires the Act. The 1987 law analysis, by the measured Gulf Offshore any acquired mineral interest retain title controversy settlement state-court simple deposit and to all revenues it in fee policy, ei- any contravene does not from that interest into statutory. proceeds derived or and constitutional ther purposes.62 tribe-related special account for IV Authority construction of asserts that its Agreement63 calling for a con the MHO IN CONTEST —THE THE DOCUMENT —as MHO AGREEMENT —IS PARTIES’ veyance to Lewis and for of a surface estate THE CONVEY A TO CONTRACT reservation the Au the mineral interest’s PER- FULL ENTIRE FEE UPON thority compliance in with the 1987tribal —is OF ITS TERMS FORMANCE law. 61. Those laws are: which sans force in the United States.” may ty Act. in contest. this claim at tion § common require invoked in the the Sac lished 66-4, and federal court. statutory § 459 Okl., disputes involving Sac and Fox Sac and Fox development, "Judicial notice al interest 2201(A) 306 to the 1983 The 1987 Taking judicial Sac and Fox Resolution 86-51, proof. dispense with regulations. 509 P.2d which creates the designates January Amarex, us to take every law, law—of which the are: accords with which Jones Fox State-court tribal resolution adds law— constitutions it the time it first state, Housing Authority Act of adversary process. The terms of shall be taken has no Inc. terms of 12 O.S.1991 Tribe; (3) relates to Drilling Company v. Sac and Fox "judicial As proof of some norm of state common, constitutional, or notice 1983. Lewis (1) Sac and Fox Resolution territory and we view the Housing Authority; Sell, Okl., legal jurisdiction attached to Housing Authority; applicable means notice" of law that is court Sac and Fox Resolu- judicial 87-75, effect on the by the as “an Housing public came may did not 566 P.2d Act only resolution of which adds federal law court mid-appeal agency” before be advised statutes in § Woodson, as estab- Authori- 2201(A) to the object of the rights (2) we 63.For Agreement, brief. The which the below jects. make such its said mineral severance and special such form as fee ty by purchase, gift, or otherwise is pairs, than as authorized in Subsection section the Sac and Fox TY thority, or (c) declared (d) (a) Housing Authority Indians of “MINERAL INTERESTS IN (1) All simple, Title to A following purposes: to nisi gas a discussion of the improvements operational construction or conveyance ^[*] account maintained revenues and Authority interest, to be and is severed and vested in the existing projects, pertinent see Part due to its Oklahoma, prius any be made n may interest shall be conveyances vesting mineral Business Committee. notice of the 1987 acquired by expenses be had attached to its of the Sac I, ^[*] terms acquisition necessary supra. only acquisition mineral interests other proceeds and the additions, interests, Lewis/Authorily MHO ^[*] title of real § and Fox REAL PROPER- 306 are: Authority shall deposited the consent of ^[*] of real derived from including Authority, Housing including oil the record.” authority of new clarify property (b) of this resolution, ^[*] pre-trial Tribe proper- * * * hereby such pro- Au- re- ” construing phrase dependent who asserts that a law dif When the In One community, Appeals dian the U.S. Court of governs that of the ferent from Oklahoma for the Tenth Circuit must take into account identifying dispute the burden of and bears question, “the of nature the area the rela foreign invoking that other law. Unless law tionship of the inhabitant of the area to Indi invoked, law will be is Oklahoma’s domestic tribes, government, an and to the federal and agree govern.64 deemed to We with the trial practice government agen the established of that the contract court and hold Oklahoma cies toward the area.”68 A more elaborate conveyancing, law and that rather than Eighth set of factors was identified the law, applicable to this claim the tribal is Circuit United States v. South Dakota69— purchasers. Indian The trial court ruled (1) i.e., whether the United States has re (1) into the 1974 when Lewis entered permits tained “title to the lands which it the project Agreement MHO the land was not occupy” authority Indians to and to enact dependent situated within a Indian commu regulations protective respecting and laws nity and not otherwise constituted as was (2) territory; the nature of the area in Country, Agreement Indian the MHO question, relationship the of the inhabitants reorganized executed the Tribe was before of the area to Indian tribes and to the federal Authority agency.65 in 1983 as a tribal government, practice and the established property’s Both at the time tribal area; government agencies toward the acquisition as well as the Lewis contract’s whether there is element of cohesiveness execution, Authority operating was as a pursuits manifested either economic in the area, interests, common in agency or needs of the under the Oklahoma supplied by locality; habitants as law, Authorities Act66 The Sac and Fox apart whether such lands have been set for initially which had created the Tribe’s Hous use, occupancy protection depen act, ing Authority under the state had nei peoples.70 dent Indian The ultimate test is repealed ther been nor revoked. It stood in apart whether the land is set the use property when the was full force effect superintendence Indians under acquired by housing agency the Indian government.71 when it was sold to Lewis. property The trial court concluded that the short, parties when the entered into the independent in contest was not an Indian Agreement, project MHO area involved community when the contract was executed not, ruled, correctly as the trial court in 1974. This is so because at that time the “dependent community”.67 Indian Neither health, provisions police, tribal social and project Country was the site Indian when the agree were not services We food effect. Authority conveyed premises to Lewis. analysis the trial court’s and its reason- that, We hence hold for the reasons farther ing. passed When title explained opinion, later in this state contract Lewis, property was not Coun- conveyancing, law and that of rather than (via try. oversight point At this HUD’s its law, applicable Agree- tribal to the MHO regulations pro- extensive federal of MHO and to claim of ment contest the title these grams) per- came to an end. Lewis had purchasers. obligations imposed by formed all the Keller, Okl., Marline, 64. Benham v. 673 P.2d 68. United States v. 442 F.2d (10th Cir.1971). Director, According ap- to the HUD denied, (8th Cir.1981), 69. 665 F.2d 837 cert. validity proval required is not to infuse into tribal L.Ed.2d laws; housing only necessary it is to receive funding. Dakota, supra at 841-843. 70. South note 69 Supra note 11. Pelican, 71. United States v. "dependent

67. For the definition of Indian com- 1151(b), munity”, supra 58 L.Ed. 676 see 18 U.S.C. note 16. A must be considered as Authority contract execut- when Agreement MHO provi give to all its a whole so as to effect can find warranty Because we deed. its ed narrowly concentrating upon without sions tribal law to this dis- applying no basis for language taken out of cont some clause or to construe these proceed pute, we language given is The in a contract ext.76 rights in accordance with Okla- purchasers’ ordinary meaning unless some plain its law. homa term is used in a manner intended technical concept.77 The convey specific a technical B. fraud rule teaches that unless parol evidence involved, negotia pre-contract is or mistake Construing A Contract Rules for into, merged oral discussions are tions and Property Convey Real To superseded by, the terms of an executed of an writing.78 practical construction ambiguous so a contract is Whether (to derived from the acts and agreement be clarify evidence to require extrinsic as to parties) an available tool conduct of the is for the courts.72 If question of law doubt is ambiguity appears present. only in case be a contract is clear and free language of Where, here, complete is as a contract interpret it as a ambiguity, court is to and, totality, when viewed as a itself matter of law.73 only legiti unambiguous, language is the its parties intended. mate evidence what trial, of the the nisi At the conclusion That intention cannot be determined parties prius informed from court circumstances, surrounding must be but defi controlling legal issue was whether the gathered examination (inserted four-comers’ “grounds” word from of the critical nition parties pro the instrument. Because the of ceeded on the Agreement) a mineral MHO includes into the premise the before the issue parties directed the The court interest.74 law, interposed one of and nowhere court was Neither Lewis nor post-trial submit briefs. notion, objection to that we hold them objected briefing this issue prius positional their nisi commit bound law, post- at trial or in their one of either as ment. By par their conduct the trial submissions. clearly manifested a desire to have the ties C. interpreted as a matter of contract terms The Term “Grounds” The MHO law, light than in the of some intent to rather Agreement Both The Includes extraneous evidence and gathered be Surface and Mineral Estate meaning The contract’s ten circumstances. court that from a to the trial was to be divined asserts dered the MHO four corners of the instrument.75 four-corners’ examination from the 157; Okl., Affairs, Mercury, supra § O.S.1991 note 72 at 72. v. Oklahoma Bd. Public 76. 15 Cook (1987); Mercury Co. v. 736 P.2d Inv. Co., Okl., F.W. Woolworth 706 P.2d (1985); Rainbolt, Okl., 669 P.2d Ollie v. 160; Mercury, supra § note 72 at 77. 15 O.S.1991 Co., (1983); Ferrell Const Inc. v. Russell Creek Co., Old., 645 P.2d Coal 137, 155; Mercury,supra §§ O.S.1991 note 78. 15 Mercury, supra note 72 at 529. §of referred to 72 at 529. Under the terms rule, generally parol as the evidence testimonial judge lawyers 74. The trial asked the to tell him vary evidence be admissible to or contradict "grounds” legal synonym whether the word is "a fraud, terms of a written contract when acci property’,” for the term 'real estate' or 'real upon for relief from the dent or mistake is relied meaning”. whether it "has a restricted Winn, Okl., binding of a Snow v. effect contract. (1980); statutory Dewberry For our rules for the construction v. Yellow 607 P.2d contracts, Okl., §§ see O.S.1991 151-157. The Manufacturing Acceptance Corp., 396 P.2d terms of 153 are: Company Lone Star Gas v. Oak Here, man, Okl., P.2d 813-814 ascertaining purpose "For the the intention fraud, contract, parties upon have not relied accident parties of the to a if otherwise doubt- ful, vary terms of the docu given chapter or mistake to the written in this are to be rules applied." ment. grounds” Agreement apparent it is there was be a house and that Author- the —means ity was to retain no ‘property. interest in the of the surface and mineral estates severance They rely early Pennsylvania on an case in upon completion the of the contract’s terms. terms, ground which the court held the word on Authori- The critical relied synonymous with lands.81 ty, provide purchasers that when the have Authority-borrowed money, all paid back Grounds is not a common-law term convey Authority Participant will to the

“the property. of art in the law of real Unlike the grounds.” house and all its interest in his “surface”,82 noun “ground” the word has no “grounds”, considered in The term when meaning body defined in the of Oklahoma’s Agreement, of the entire MHO context common law. Within the context of the Authority conveying argues, calls for to Lew- Agreement, MHO we treat the latter term as is but a estate while reserving surface sense, synonymous with In general land. its grantor. support in the In mineral interest land includes not earth, only the face of the “grounds” of its contention that the word is everything permanent but of a nature under limitation, Authority one of directs us to sense, or it. In it embraces both dictionary several definitions of the term.79 minerals, the surface of the earth and oil and unpersuasive.80 We find these sources gas found below the earth’s face.83 Land is argue general that Lewis use of the defined our statute “the as solid material grounds appurte- word not limited to the earth, is of the ingredi whatever be the surrounding nances and the surface soil, composed, ents of which it is whether They house. assert that contract rock or other substance.”84 “The owner of all phrase convey right its interest his land fee has the to the surface and to —“will Alleghe- 79. The directs us to the definition of In Feree v. Sixth Ward School Dist. of (1) Webster's grounds (1874), the term ny, 76 Penn. Seventh 378 the court held the New (1967) surrounding Dictionary Collegiate "ground” synonymous —"a word in a 1867 act was area ... the surface of the earth ... the area with the word “lands”. This construction of the belonging around and to a house or other build- "ground” noun enabled a school district to enter (2) ing; Webster’s Third New International Dictio- upon improved town lot to erect a school- lawn, (1961) nary gardens, at 1002 and —"the building. house planted immediately surrounding areas and be- (3) longing building; to a house or other Laurence, Okl., Company 82. Mack Oil 389 P.2d (4th Ed.1951) "soil; Dictionary — Black's Law Improve- 960 Riedt v. Island earth; Rock appropriated private the earth’s surface Okl., Company, ment 521 P.2d susceptible or use and under cultivation of culti- “surface”, Though this term is used Riedt the court noted that the term vation. sometimes as if 'land,' equivalent properly it is of a more conveyed used to denote which is in a real signification, applies strictly limited because deed, it may, delineating estate without further surface, only always dry to the means land. words, Id., syllabus be one of limitation. Carter, [(1897)]; Ill.App. See Wood v. ]; (1856) Jersey City, [ State v. 25 N.J.L. 529 Com. law, 83. At common land is deemed to extend Mass., Roxbury, Gray, 491”. The sky. from the center of the earth to the This asserts other reference materials demon- concept expressed in the maxim—a centro "ground” strate that the term does not include usque ad coelum. states the maxim more minerals, Black's citing at Webster's Collegiate Thesaurus fully cujus ejus usque est solum est ad coelum et 390, Webster’s — Dictionary Synonyms at 384 New ad means that "the owner of at inferos—which William C. Legal Burton, Thesaurus soil owns to the also to the lowest heavens and and 915. depths.” Black’s Law 5th Ed. at 22 Dictionary, legal 80. Our research reveals that some refer- Mitterling, See Brandes v. "ground" ence materials include the word in the (1948), Ariz. 196 P.2d where See, grouping property. real same as land or applied the court notes that maxim has been (1) e.g., 4th Ed. Rogets Thesaurus, International circumstances,” ages variety “through (1977) (Land) "land, earth, ground, at 286 ... — rejected and observes that it has been in cases estate, (2) property real ... real J.I. Rodale, right airspace in the above. measure landowner’s Synonym "ground, at n. Finder 475— 467, citing Id. at 196 P.2d at United States v. Archaic, grounds 1.... ... land ..." 2. ... Causby, 328 U.S. 90 L.Ed. ”; property ... C. William Legal Burton, The- 741-"ground property ... saurus (land) ..., grounds (property) ... estate ... (land )...." property 60 O.S.1991 cognizance dis- contractual or from state-court situated beneath permanently everything IHAs between state-created putes land has a definite to arise The term it.”85 above homebuyers, the word a state district synonymous with their Indian meaning that is property parties’ is defined Real to hear these property.”86 court has “real af- ... which is [t]hat “Land claims. State courts as contract-based statute which is incidental constitutionally-invested cognizance, ... concur- [t]hat fixed to land courts, which is any [and] [t]hat land.... to entertain appurtenant rent with federal by law.”87 explicitly immovable not withdrawn federal-law claim congressional authority by some from their that the noun Having determined enactment, judicature long as state does so taken as a word of not to be “grounds” is upon self-government. infringe not tribal a limitation, consider whether we next the MHO examination in An to reserve a mineral interest intent four-corners’ may parties have intended Agreement, implied in a contract grantor not be contract, only that, of the the termination convey grantee all promises to to the which conveyed Lewis be the surface estate grantor’s interest in the “house stand reserved in the mineral interest contest, while a Agreement in grounds”. The MHO a reservation it must grantor. To create unambiguous plain, in clear and lan- written grantor that the appear from the instrument parties’ in- guage, unmistakably reveals the by apt to retain some inter words intended simple convey fee title to the tent conveyed. grantor A a the estate est from performance of purchasers upon their full to have made all the reser presumed deed is agreement. made. cannot to be One vations intended IS THE TRIAL COURT’S JUDGMENT by showing grant derogate from one’s AFFIRMED. was intended but went some reservation statutory presump unexpressed. There is C.J., SIMMS, HODGES, every in land which is con tion that estate WATT, HARGRAVE, ALMA WILSON be deemed an estate in veyed by deed shall JJ., concur. by express simple unless limited words.88 fee clearly applica principles are guiding These LAVENDER, V.C.J., concurs in result. rights assessing the measure of creat ble in Agreement SUMMERS, JJ., under by the MHO review. ed dissent. KAUGER ex hence conclude We from four-comers’ Justice, SUMMERS, dissenting; Lewis/Authority contract amination to be reserved that no interest was intended majority jurisdiction issue frames the Authority. in the as Oklahoma has been “ousted” whether jurisdiction.” It disre- from its “concurrent SUMMARY Supreme case law gards States Court United that, case law1 any explicit congres- as well as recent Oklahoma We hold absent point, predomi- relies squarely Act to and instead sional directive the 1937 withdraw granted, “Eveiy § estate in land which shall be 64. 60 O.S.1991 conveyed or demised deed or will shall be simple and of inheri- deemed an estate in 26(2) fee provide: § 86. The terms of O.S.1991 tance, (Em- by express unless limited words.” 'property' properly, “1. The word includes added.) phasis personal. real and Everett, Okl., Bryan P.2d 147-148 property' 2. The words are coextensive 'real lands, with tenements and hereditaments. Harjo, Housing Authority Seminole Nation v. (Okla.1990), effectively over- P.2d 1098 § real The terms of 60 O.S.1991 define by today’s majority opinion. cases Other ruled property as “1. Land. 2. That which is affixed to overruled, although expressly, are are which appurtenant land. 3. That which is incidental or Tribe, Housing Authority Kiowa Ahboah v. to land. 4. That which is immovable law.” Newcomer, (Okla.1983), Barnett v. P.2d 625 Hildebrand, (Okla.1957), and Swain v. P.2d 148 (Okla.1934). The terms of 16 O.S.1991 29 are: 36 P.2d nity nately Supreme statutory on two United States Court which is included within the dealing doing, “ouster.” In so country.” eases definition of “Indian The Lewises majority assumption that the state makes the disagree, urging juris- that state courts have has concurrent with the federal housing authority diction because the courts, pays and tribal no heed to the incorporated created and under state law. abundance United States Court adoption “With the of the Federal Consti extremely juris- dealing law with the narrow tution, Indian relations became the exclusive by a diction held state over Indian affairs province County, law.” Oneida of federal country.2 State, N.Y. v. Oneida N.Y. Indian Nation of majority’s explanation of Gulf Off- Corp., shore v. Mobil Oil denied, L.Ed.2d 169 reh. and Yellow 1062, Inc., Freight System, Donnelly, added); (Emphasis U.S. Constitution Article 820, 1566, 110 S.Ct. 108 L.Ed.2d 834 I, 8, 3; Constitution, Section Clause U.S. may applied be in proper correct when VI, Article Clause 2. The basic issue is context; however, these two cases have no simply whether the transaction in occurred setting, in applica- relevance this and are not country. not, Indian If it did the state jurisdiction questioned ble when the state’s clearly jurisdiction assume and resolve the because of an assertion that the event took However, matter. if it did occur in Indian place country. in Indian The United States country, analysis Supreme further of Court held, instances, Supreme in Court has similar necessary jurisdic law is to determine where application principles that of in derived other tion rests. “Numerous cases confirm the generally helpful areas law are when principle country that the Indian classifica attempting to resolve an issue which arose tion is the approaching benchmark for country. Indian See Mountain White federal, tribal, allocation of and state authori Bracker, 136, 143, Apache v. Tribe 448 U.S. ty respect with to Indians and Indian lands.” (1980). 2578, 2583, 100 S.Ct. 65 L.Ed.2d 665 Country, Indian U.S.A v. Oklahoma Tax special relationship Because of the between a Comm’n, (10th Cir.1987). 967, 829 F.2d 973 governments, tribe and the federal and state 1218, 2870, cert. denied 487 U.S. 108 S.Ct. questions light such must be resolved in (1988).4 Thus, question 101 L.Ed.2d 906 Id,.; concepts regarding historical Indians. place of whether this event took Indian Cohen, see also Handbook Federal Indian country beginning is the cornerstone and (1984). Law 259-280 point analysis. Oklahoma Tax Comm’n v. party No lawsuit raised or ad- — Nation, -, -, Sac and Fox dressed the issue of “ouster” or “concurrent (1993). 1985, 1991, 113 S.Ct. 124 L.Ed.2d 30 Rather, jurisdiction.” they correctly framed framing preclude This of the issue does not the issue as one which focuses on whether all state Indian the state courts have a con- over concerns. over dispute involving requires analysis begin by recog- tract It housing an Indian au- OHahoma, Act, thority.3 housing authority nizing Enabling urges its general regulatory jurisdiction. the state lacks because the land declined civil Act, 3, dispute dependent 3335, § arose in a Enabling Indian eommu- Oklahoma Ch. 34 authority 2. A conflict between this Court’s resolution and 4.Cited as for this statement are Solem appeals Bartlett, 1161, 463, 465, those resolutions of the federal court is 465 U.S. 104 S.Ct. Supreme reason for the United States Court to 1163, (1984); DeCoteau v. Dis grant Court, County certiorari. DeCoteau v. District Court, 425, 1082, County trict 420 U.S. 95 S.Ct. 95 S.Ct. 43 (1975); Kennerly v. District L.Ed.2d 300 Court, 480, 27 L.Ed.2d (1971); Cheyenne-Arapaho Tribes Okla 3. At least one federal court has held that Okla- Oklahoma, (10th homa v. 618 F.2d 665 Cir. general homa does not have 1980); Cohen's Handbook Federal Indian Law disputes country. contract which arise in Indian (R. Cohen, 1982); 27-46 Strickland ed. F. Hand Malone, F.Supp. See Richardson v. Law, Federal Indian 5-8 (N.D.Okla.1991). book is, nation, and this the United States Report see also Senate Stat. laws, in the vested our constitution Cong. & Admin.News 699, 1953 U.S.Code States. government United Thus, jurisdiction held any civil of federal a direct result by this state is (Empha- at 270 79 S.Ct. Id. 358 U.S. federal case law. action or congressional added). there The Court held that while sis court, We, may not like the idea that we as a slight modifications in the law of had been adjudicate certain jurisdiction to Worcester, are without had policy of “the basic Worcester dealing Indian matters. with actions civil it clear Id.5 Williams makes remained.” Nevertheless, guidance from the assertion, comes that, our majority’s Okla- unlike the interpretation and its Federal Constitution not have concurrent homa does by the in judicial opinions. We are bound government the event took with if in this area the United terpretation given country. See also Ex place within Seneca-Cayuga Supreme Court. See Dog, parte States Crow F.2d 709 Thompson, Instead, pre- Tribe v. ex rel. State there is a L.Ed. 1030 Cir.1989). (10th against jurisdiction in Indi- sumption U.S.A, Country, country. Lee, Williams Cabazon, 976, citing supra, and F.2d at (1958), States United 3 L.Ed.2d Tribes, supra. Cheyenne-Arapaho explained the state’s role Supreme Court has re- United States Court jurisdiction over Indian con- regard to jurisdiction to state courts. peatedly denied There, oper- non-Indian owned and cerns. 423, Court, Kennerly v. District 400 U.S. Navajo He on the Reservation. ated a store (1971). 480, There, 27 L.Ed.2d 507 91 S.Ct. Indi- brought against two on-reservation suit bought grocery Indians food on credit from goods from his store purchased ans had who brought The store store on the reservation. payment. had failed to make on credit and in a Montana state against suit the indians court refused to dismiss The Arizona state Supreme Court court. The United States jurisdiction, and en- lack of the action.for jurisdiction held that Montana was without of the store owner. judgment tered on behalf complied it had not over the matter because Supreme Court reversed The United States Again, in with the terms of Pub.L. 83-280. jurisdiction had no and held that the state Court, 382, 424 96 Fisher v. District U.S. Quoting Chief Justice John over the matter. 943, 47 L.Ed.2d 106 reh. denied S.Ct. 515, Georgia, 6 Pet. Marshall in v. Worcester 1524, 926, 96 S.Ct. 47 L.Ed.2d 772 425 U.S. 561, (1832), explained the Court 8 L.Ed. 483 (1976), jurisdiction ques- Montana’s application no that of the state have the laws There, adoption proceeding had tioned. jurisdiction: not have because the state does Supreme in brought state court. The been nation ... is a distinct com- The Cherokee the tribe had Court held territory ... munity, occupying its own adoption and that the state was over Georgia can have no which the laws jurisdiction. without force, Georgia' and which the citizens of Later, enter, Apache in New Mexico v. Mescalero right no to but with the assent have 2378, Tribe, 324, themselves, 76 or in con- 462 U.S. 103 S.Ct. of the Cherokees (1983), treaties, the Court stated that the formity and with the acts of L.Ed.2d 611 with preclude all rule is not so inflexible as congress. The whole intercourse between permit consistently a “a more individualized treatment of have been Williams Worcester jurisprudence specific concerned with state particular followed in federal statutes.” treaties See, e.g. Tribe, 148, over Indian affairs. Fisher Apache S.Ct. 411 U.S. at 93 Mescalero 382, 943, Court, v. 424 U.S. 96 S.Ct. 47 District 1270; Organized. Village also Kake v. at see 926, 425 U.S. 96 L.Ed.2d 106 reh. denied 60, 562, Egan, 573 369 U.S. 82 S.Ct. 7 L.Ed.2d 1524, (1976); S.Ct. 47 L.Ed.2d 772 McClanahan Martin, (1962); Ray Yorkex rel. v. 326 U.S. New Comm'n, 164, U.S. 93 v. State Tax 411 Arizona 307, 496, L.Ed. 261 Because 66 S.Ct. 90 1257, (1973); S.Ct. 129 Mescalero L.Ed.2d property that this was located I do not believe Jones, 145, Apache 93 S.Ct. Tribe fully country, I do not discuss within Indian Olson, (1973); 36 L.Ed.2d 114 Rice v. may which the state have different arenas in S.Ct. 89 L.Ed. 1367 U.S. country. jurisdiction over Indian concepts have now been further refined (10th Cir.1985) Congress’ jurisdiction absent consent. In- cert. denied 476 U.S. stead, rule was refined: “[U]n- the Williams may validly 83-280,

der certain circumstances a State Under Public Law as later amended authority over the of non- assert activities § seq., Congress agreed 25 U.S.C. 1321 et reservation, excep- members on a and ... to cede over civil Indian matters may juris- tional circumstances State asset to the states: the on-reservation activities of diction over Assumption jur- State civil tribal members.”6 isdiction consistently Congress has acted to show (a) States; Consent of United force and only power the states have limited effect of civil laws regulate Indian affairs. Id. 358 The consent of the hereby United States is Constitution, 79 S.Ct. at 270. The Federal given any having jurisdiction State not I, 3, specifically Article Section Clause over civil causes action between Indians “Congress shall ... states have Power or to parties which Indians are which arise regulate To Commerce ... with Indian country in the areas of Indian situated Furthermore, Tribes.” the United States assume, within such State to with the con- Court, as well as federal courts of occupying sent of the particular tribe appeal, consistently provi held that this country part or thereof which would sion of the “Constitution vests the Federal assumption, be affected such such mea- authority Government exclusive over re any sure of over or all such lations with Indian tribes.” Montana arising civil causes of action within such Tribe, 759, 764, Blackfeet country any part thereof as 2399, 2402, (1985); see also be determined such State to the same 373, 376,

Bryan County, v. Itasca extent that such has State 2102, 2105, 5.Ct. L.Ed.2d 714 n. action, other civil causes of those civil laws Mazurie, United States v. general of such State that are of applica- L.Ed.2d 706 private persons private property tion to or (1975); Country, Indian U.S.A v. State ex shall have the same force and effect within Comm’n, 967, rel. Oklahoma Tax 829 F.2d country part such Indian thereof as (10th Cir.1987). juris 974 The state’s lack of they have elsewhere within that State. dealing diction has also been affirmed when concept sovereignty. with the related of enacted, originally Under this statute as “[Tjribal on, sovereignty dependent required state was to take some affirmative to, only subordinate the Federal Govern jurisdiction action to extend its to Indian ment, not the States.” v. Caba California country. any Oklahoma did not take such Indians, 202, zon Band Mission 480 U.S. of action. Id. see also Oklahoma Tax Comm’n 1083, (1987), quot 107 94 244 S.Ct. L.Ed.2d — Nation, at -, v. Sac and Fox U.S. Mazurie, ing v. United States 419 U.S. at expressed by S.Ct. at 1992. The intent as 557, 717; Washington at S.Ct. see also v. congressional reports Congress shows that Tribes the Colville Indian Confederated investigated the various needs of states and Reservation, 134, 2069, 100 S.Ct. part tribes. Tribes were for the most (1980); U.S.A., Country, L.Ed.2d 10 Indian “agreeable jurisdiction” to the transfer supra.7 proposed under Pub.L. 83-280. Re Senate However, Congress provided port, method which at 2412. several states —IN Oklahoma could have assumed in CLUDING OKLAHOMA—had their con arising expressly over some civil matters in Indian stitutions disclaimed Burnett, country. United States v. over F.2d Indian land within state borders. The (1980); Jones, Apache 6. See also v.Moe Salish and Koote Mescalero v. Tribe Confederated Tribes, 463, 1634, 1267, nai 96 S.Ct. 411 U.S. (1973). 93 S.Ct. 36 L.Ed.2d 114 Washington L.Ed.2d 96 v. Confederated Reservation, Tribes the Colville Indian Clinton, (3d generally 100 S.Ct. reh. 7. See American Indian Law 1991), pp. denied 448 U.S. ed. 65 L.Ed.2d 181-183. by balancing the continued of such Id. 88. We that the effect Report states Senate regulating in tribal of the state Federal interests “to retain exclusive was disclaimers added). of the federal and tribal bingo against that If the (Emphasis ...” holding that the state is not governments, majority opinion were in the view enunciated juris- exercising from necessarily precluded no need for correct, would have been there diction. like Pub.L. 83-280. legislation federal disagreed Unfortunately, the Tenth Circuit Thus, question is not one of “ouster analysis Seneca-Cayuga May our jurisdiction” but is one of concurrent Thompson, 874 F.2d 709 v. ex rel. Tribe State matter authority adjudicate an to power and Cir.1989). (10th pre was The same issue country. While Okla occurring in Indian in a connected case the federal sented precluded regu completely homa is not held that courts. The Tenth Circuit country, not it does lating affairs on Indian May Supreme ruling Court’s Oklahoma regulatory power or au civil general law, and be inconsistent with federal was general laws. See thority apply all of its interpretation it a matter of cause was Cabazon, “If state-court infra. analysis principles, this Court’s federal lands or activities on Indian Indians binding. at 714. The federal court Id. sovereignty and tribal interfere with would it should abstain from first looked whether gener are the state courts self-government, jurisdiction. Answering that exercising as a matter ally divested of negative, pointed the court question v. La Iowa Mutual Ins. Co. federal law.” primacy of the federal interest: out Plante, 9,107 94 L.Ed.2d grants Congress The Constitution Court, v. citing Fisher District regulate ... with the power ‘To Commerce U.S. Const, I, 8,§ Tribes.’ art cl. Indian Lee, supra.8 and Williams agreements treaties and other 3. The attempted has once before This Court govern relationship between the Indi- jurisdiction where it had not been exercise part ans and other Americans are of ‘the govern- expressly permitted the federal VI, supreme Law of the Land.” Id. art Seneca-Cayu- May rel. ment. In State ex Congress that has set the terms cl.2. It is Tribe, (Okla.1985), P.2d 77 we stated

ga modem American Indians under which jurisdic- has “residual” civil that Oklahoma live, Court that United States country. Relying a novel on tion over interpretation shaped has those 83-280, interpretation of Pub.L. we held terms and the Bureau jurisdiction under Pub.L. 83-280 assertion of managed day-to-day- that has the Affairs only way in could the which a state was not Indeed, interactions with the Tribes. jurisdiction. general civil We stated exercise Oklahoma, states, many other was like authority could exercise over that our state jurisdiction required to disclaim over In- jurisdic- country under its “residual Indian dians at statehood. powers: tion” Added). (Emphasis Id. at 712. The Tenth jurisdiction by noting “pre- that concept ‘residuary’ is Circuit continued however, jurisdiction sumption reality, are that state courts with and the used to invest law, policy, au- interstitially subject-matter of federal and federal when the thority paramount in the conduct of Indi- cognizance infringe upon does not tribal are Country.” an affairs in Indian Id. at 713. self-government and has been that the federal preempted by congressional legislation. The Tenth Circuit concluded especially light example important to sion is in of the fact 8. One of insufficient state interests jurisdiction justify expressly granted was ad- the extent of state cer- that California had been sought dressed in There california to yet jurisdictional rights Cabazon. tain under Pub.L. regulate bingo, asserting that the State had tribal juris- to extend the state's the Court still declined preventing an interest in the infiltration of Oklahoma, by diction to cover this situation. enterprises by organized bingo crime. The tribal failing to take action under Pub.L. has even this to be insufficient to Court held regulatory authority than does California. less permit jurisdiction. deci- the state to have This dependant court —not the Oklahoma state courts —had home was in located a Indian jurisdiction regulate community. the civil matter of The evidence showed that she bingo. inherited restricted tribal Seminole land from her husband. She deeded the land to the hous- majority’s Harjo claim that As for the and ing authority to a build her house. Under a principles, failed to consider Ahboah “ouster” Help Occupancy Agreement, Mutual and approved by these two cases have been a authority built the house. The woman Malone, In federal court. Richardson v. agreed payments to make for seventeen (N.D.Okla.1991), F.Supp. 1463 the federal made, years. payments After all were court it district held had house and land were to be deeded back to against over foreclosure action Indian de her. involving property fendants in located Indian country. again pointed The court out that law10, Relying on federal case we held that accepted Oklahoma had not civil factors be considered when determin- Citing as authorized Pub.L. 83-280. Har ing whether dependant land is located Ahboah, jo agreed and the federal court community Indian were: jurisdiction. the state did not have Id. (1) [Wjhether the United States had re- 1466. Because of the absence tribal courts tained permits title to the lands which it court, and lack of the state occupy authority the Indians to dispute properly lodged the contract regulations protective enact laws re- the federal courts. specting territory, the nature of

Here, if the transaction or land involved in questions, relationship the area country9 was not Indian within the definition the inhabitants of the area to Indian tribes of 18 U.S.C. then Oklahoma courts government and to the federal and the to decide the matter. It is practice government agen- established inquiry area, with this that Ahboah v. toward cies whether there Indians, the Kiowa Tribe an element of cohesiveness manifested ei- (Okla.1983) Housing Authority P.2d 625 area, pursuits ther economic in the Harjo, interests, Seminole Nation v. 790 P.2d 1098 common or needs of the inhabit- (Okla.1990) play. come into These two cases supplied by locality, ants as dealt with Section 1151’sdefinition of “Indian apart whether such lands have been set country.” portion use, The relevant of Section occupancy protection of de- country” 1151 states that “Indian includes pendent peoples. dependent “all Indian communities within the government The federal has

borders of the United States whether within which, part “those communities while neither original subsequently acquired territo- of a federal reservation nor Indian ‘allot thereof, ry and whether within or without the ments,’ are both ‘Indian’ in character and limits of a state.” federally dependent.” Harjo, 790 P.2d at Harjo, 1100-1101, quoting an Indian homeowner fell behind United States v. Lev (1st Cir.1982), payments housing esque, in her au- 681 F.2d cert. denied, thority. authority brought suit entry terms, general

court for forcible and detainer. The L.Ed.2d 936 urged question homeowner that the state did not have decisive is whether the land was “validly Indians, apart over the matter because her set for the use reservations, dependent 9. It is not “reservation” status that blocks the and informal formal In- asserting jurisdiction. communities, allotments, state from In Oklahoma dian and Indian wheth- - Nation, Tax Comm’n v. Sac and Fox U.S. by er restricted held in trust United -, (1993), 113 S.Ct. Id.; see States.” 18 U.S.C. 1151. Supreme United States Court stated that “reser- irrelevant; proper inquiry vation" status was Dakota, v. 665 F.2d 837 United States South place was whether the event took in "Indian (8th Cir.1981), denied, cert. country” or involved a tribal member who lived United States v. -, country.” in “Indian Id. at 113 S.Ct. at Marline, (10th Cir.1971). 442 F.2d 1022 “Congress 1991. The Court went on to note that country broadly has defined Indian to include country Indian as defined Section such, superintendence of the under as Pelican, court has to decide States The state United government.” 58 L.Ed. 676 controversy. This rationale is consistent land is as to whether decision The ultimate of the United States Su- with the decisions dependent Indian communi Court, within appeal, situated preme the federal courts Pelican, supra; factually specific. ty is jurisprudence. and our own Village of Venetie, 856 F.2d Alaska v. Native (9th Cir.1988). 1384, 1391 KAUGER, J., I am authorized to state pre- the circumstances held that under We joins in these views. land located within Harjo, sented community. The land dependant Indian subject control of the federal to the

remained comprehensive gov- there were government; regarding regulations the MHO ernmental maintained the sew- agreement. The tribe to the area. The age and health services through funding, received federal schools help children. programs designed to Indian Karen CARRIS Sunbelt d/b/a living anthropologist testified that An Construction, Appellant, with a distinct arrangement was consistent dwelling pattern traditional within near Indian families. The house was located ASSOCIATES, AND JOHN R. THOMAS languages churches where traditional Thomas, P.C., Davis Architects and a/k/a spoken. were Partners, P.C., corpora- an Oklahoma tion, Thomas, individual, and J. Brad nearly strong in the The evidence is not so Appellees. present question The land in was not case. nor held in trust for their owned Indians No. 82952. prior purchase by housing benefit to the authority. on unre- The home is located of Oklahoma. Court stricted fee land. There is not intensive April through government control the federal HUD, agreement the MHO has been because Rehearing Denied June completed and land has been and the house deeded to the Lewises. There do not seem housing

to be tribal ties to the addition. close that the residents of the There is no evidence dependent on and Fox house are the Sac protection.11 Impor- police Tribe for or fire they tantly, assert that are not the Lewis’s part community. Harjo, of an Indian Unlike of lands were where four tracts deeded family, build houses for members the same only connection between the Lewises and the other homeowners is location. The land Indians, apart use as was not ‘set for the gov- superintendence such under the of the Pelican, ernment.” at 399.

I that the facts are not would determine “dependent com- sufficient to show a Thus, munity” Harjo. the land is not under protection 11. The available. states that such

Case Details

Case Name: Lewis v. Sac & Fox Tribe of Oklahoma Housing Authority

Court Name: Supreme Court of Oklahoma

Date Published: Feb 9, 1994

Citation: 896 P.2d 503

Docket Number: 78825

Court Abbreviation: Okla.