DYE v. CHOCTAW CASINO OF POCOLA (2009)

¶ 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.

¶ 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 Pocola, Oklahoma (casino). The Tribe offers class III gaming² to its casino's patrons pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2722 (1988), and the State-Tribal Gaming Act, 3A O.S.Supp.2004, §§ 261-281, which includes the statutory “Model Tribal Gaming Compact” (compact), id. § 281, signed by the Tribe and effective February 9, 2005.³

¶ 3 On December 6, 2005, Danny Dye and Pat Dye (Dyes) visited the casino. According to the Dyes, Danny Dye⁴ left the gaming area of the casino, and while he was walking through the parking lot, a casino shuttle cart driven by a casino employee ran into him. Danny Dye was injured. The Dyes submitted a notice of tort claims to the casino and the Tribe as provided in the compact,⁵ alleging that Danny was seriously injured by the negligence of the casino's shuttle-cart driver. When the Tribe and the casino failed to act upon the tort claim, it was deemed denied.

¶ 4 The Dyes 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 to 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 waived tribal immunity. The Dyes responded that the Tribe consented to suit in the compact, which, at Part 6(A)(2), states that the “tribe consents to suit on a limited basis with respect to tort claims” and, at Part 6(C), states that the “tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to tort claims.” The Tribe contended that the declaration in Part 9 of the compact that “(t)his Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction,” places subject-matter jurisdiction exclusively in tribal court and therefore, that 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 The Dyes appealed the dismissal, and this Court assigned the appeal to the Court of Civil Appeals. Subsequently, we received another appeal from the LeFlore County district court presenting the same issues under the compact with the Choctaw Nation in Griffith v. Choctaw Casino of Pocola, Oklahoma, No. 104,887. We denied Griffith's request to make her appeal a companion case with this one, but noted the appeals are related. 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.

¶ 6 The Court of Civil Appeals reversed the district court's dismissal and remanded this case. Although the Court of Civil Appeals reached the same result we reach today, we granted the petition for writ of certiorari filed by the Tribe and its casino because of the significance of the question as to whether a state district court is a court of competent jurisdiction under the Model Tribal Gaming Compact, 3A O.S.Supp.2004, 281.

¶ 7 We recently handed down our opinion in Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, --- P.3d ----, (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 Griffith v. Choctaw Casino of Pocola, Oklahoma, 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 that the state courts may exercise jurisdiction over the tort claims against the Choctaw Nation and its casino in Pocola, Oklahoma.

¶ 8 In Griffith v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 51, handed down simultaneously, we considered the adjudicatory authority of the state district courts under the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2722, and the State-Tribal Gaming Act, 3A O.S.Supp.2004, §§ 261-281. This appeal, like Griffith, involves tort claims arising at the Choctaw Casino of Pocola, Oklahoma, and it presents a legal question identical to that in Griffith as to the jurisdiction of the state district court and the exercise of state adjudicatory authority over the Choctaw Nation. Rather than repeat at length our consideration and reasoning set out in Griffith, we adopt our Griffith opinion and base our conclusion and holding in this case upon Griffith. In doing so, we acknowledge that we considered this case and the related Griffith case simultaneously, and we are grateful for the thoughtful argument and authorities presented by the parties' counsel herein and the assistance of the amici curiae.

¶ 9 Accordingly, for the reasons expressed in Griffith v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 51, we conclude and hold that the state district court is a court of competent jurisdiction as that term is used in the Model Tribal Gaming Compact codified at 3A O.S.Supp.2004, 281. Our holding in this case does not change, diminish, or expand the jurisdiction of tribal courts nor take away the right of a tort claimant to select the forum-federal, state, or tribal-in which to file a tort action.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; DISMISSAL ORDER OF THE DISTRICT COURT REVERSED; CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

¶ 1 My analysis of the core issues remains unchanged from what I expressed in Cossey v. Cherokee Nation Enterprises, LLC., 2009 OK 6, ---P.3d ---- (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. 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 P.L. 280 state,³ I believe that what is clear is that state court jurisdiction has been expanded.

¶ 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 the issue, the Court appears to have enlarged state court jurisdiction beyond what existed prior to the compacts. The Court concludes that the words “tribal court only” could have been typed in the compact, but were not. The Court also notes that the tribe consents to suit twice in the compact, yet it only refers to “court of competent jurisdiction” rather than specifically providing for suit in “tribal court only.”

¶ 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.

¶ 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. Again I ask, why would Congress have included a provision in IGRA allowing Tribes and States to negotiate an allocation of jurisdiction to the states if state courts, federal courts, and tribal courts already had such jurisdiction? If this were true, the jurisdiction provisions of IGRA are meaningless.

¶ 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 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). Under certain circumstances Oklahoma lacks any authority over an Indian child.⁷ 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 which relate to or arise out of gaming and gaming enterprises, why would it have included a provision in IGRA which allowed tribes and states to negotiate an allocation of jurisdiction to the states?

¶ 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

¶ 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, --- P.3d ----; 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 jurisdiction to adjudicate tort claims against the tribes, then the tribes would have expressly limited their consent to suit “in tribal court only.” The majority cites examples from other compacts where similar limiting language appears and emphasizes that it would have been a simple matter for the tribes to type such a limitation into their respective Compacts.

¶ 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 Public Law 280. While state courts can acquire jurisdiction over tribes incidental to a Congressional delegation of power to the State to regulate tribal activity, the Federal Indian Gaming Act does not involve a Congressional delegation of power to the State of Oklahoma. Finally, when the State of Oklahoma wants a tribe to submit to the jurisdiction of a state court under a compact, the State of Oklahoma has explicitly said so. See 68 O .S.2001 500.63(C)(8).

¶ 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.” 68 O.S.2001 500.63 (C)(10).

¶ 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. 25 U.S.C. § 2710(d)(3)(C)(i) and (ii). However, the Gaming Compact between the State of Oklahoma and the Choctaw Nation does not expressly provide for the application of the civil laws of the State of Oklahoma to tribal lands nor does it expressly allocate civil jurisdiction to the courts of the State of Oklahoma. Instead, the Compact plainly states: “This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction .”

¶ 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 courts 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 authority in the Federal Indian Gaming Act on this subject.

¶ 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. 25 U.S.C. § 1302. This includes exercise of the tribe's judicial power. 25 U .S.C. § 1301(2). If a tribal court did not afford a tort claimant due process, or the tribe did not provide a court to determine its liability, such denials of due process would present a federal question to support adjudication of a claim in federal court.

¶ 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.

PER CURIAM.

TAYLOR, V.C.J., and OPALA, 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.