Date: 06-30-2009
Case Style: Dorothy Griffith v. Choctaw Casino of Pocola, Oklahoma and the Choctaw Nation of Oklahoma
Case Number: 2009 OK 51
Judge: Per Curiam
Court: Supreme Court of Oklahoma on appeal from the District Court, LeFlore County
Plaintiff's Attorney: Eddie McCroskey, Poteau, Oklahoma, for plaintiff/appellant.
Defendant's Attorney: Eric Janzen and Brett Cable, Steidley Neal, McAlester, Oklahoma, for defendants/appellees.
Description: ¶1 One question is presented in this appeal: Is the state district court a court of competent jurisdiction as used in the gaming compact between the Choctaw Nation of Oklahoma and the State of Oklahoma such that the district court may exercise jurisdiction over this Indian-country arising negligence action filed by a casino patron against the Choctaw tribe and its casino? We answer in the affirmative.
I. Facts and Proceedings
¶2 The Choctaw Nation of Oklahoma, a federally recognized Indian tribe1 (Tribe), owns a casino which it operates through its tribal enterprise, the Choctaw Casino of 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 Dorothy Griffith4 (Griffith) went to the casino on February 11, 2005. According to Griffith, as she and other patrons approached an entrance to the casino, she heard a casino guard directing patrons to the north entrance. As Griffith followed the others toward the north entrance, she stepped into a flowerbed and fell on her face and head. Griffith was treated in a hospital emergency room in Fort Smith, Arkansas. Griffith claimed her injuries were caused by the negligence of the casino employees and agents. Griffith submitted notice of tort claim to the casino and the Tribe pursuant to the compact.5 When the Tribe and the casino failed to act upon the tort claim, it was deemed denied.
¶4 Griffith filed a tort action in the state district court in LeFlore County against the casino and the Tribe. The Tribe moved to dismiss the tort action on the basis of tribal sovereign immunity from suit in state court, arguing that Oklahoma state courts may not exercise jurisdiction over a sovereign Indian tribe unless Congress or the Indian tribe has clearly consented to suit in state court or otherwise clearly waived tribal immunity. Griffith responded that the Tribe consented to suit in the compact which states the "tribe consents to suit on a limited basis with respect to tort claims" and the "tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to tort claims." The Tribe argued that exclusive jurisdiction over tort claims arising in Indian country against the Tribe was vested in the tribal courts at the time the compact was executed; the compact preserved the tribal court's exclusive jurisdiction by declaring that the compact does not alter tribal, federal or state adjudicatory jurisdiction; and therefore, the consent to suit in a court of competent jurisdiction in the compact is consent to suit in tribal court only. The Honorable Ted A. Knight, Judge of the District Court, concluded that tribal courts and federal courts have jurisdiction over Indian tribes but state courts do not and dismissed the action.
¶5 Griffith appealed the dismissal. The Tribe moved to make this appeal a companion to the appeal from the same district court in Dye v. Choctaw Casino of Pocola, Oklahoma, No. 104,737. The meaning of the phrase "court of competent jurisdiction" as used in the compact is also a pivotal issue in the Dye case. This Court denied the motion, noting the related Dye case, and assigned the appeal to the Court of Civil Appeals. Thereafter, this Court received a certified question as to whether the district court in Rogers County, Oklahoma, is a "court of competent jurisdiction" as that phrase is used in the tribal gaming compact between the Cherokee Nation and the State of Oklahoma in Cossey v. Cherokee Nation Enterprises, LLC, No. 105,300. We withdrew this case from assignment to the Court of Civil Appeals.
¶6 We recently handed down our opinion in Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, __ 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 Dye v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 52, we determine that Oklahoma district courts are courts of competent jurisdiction as that phrase is used in Oklahoma's statutory model tribal gaming compact and therefore the state courts may exercise jurisdiction over the tort claims against the Choctaw Nation and its casino in Pocola, Oklahoma.
II. Standard of Review
¶7 A compact is defined as "an interstate [intergovernmental] agreement entered into to handle a particular problem or task. Webster's New International Dictionary 461 (3rd ed. 1961). The Tribe urges that the compact is a purely private contractual matter. However, the Model Tribal Gaming Compact may not be viewed as an ordinary private contract because it is a voter-approved statute codified in the Oklahoma Statutes. The compact is public law and must be interpreted by use of canons of statutory construction. Statutory construction is a question of law which we review de novo, without deference to the lower court. Twin Hills Golf & Country Club, Inc. V. Town of Forest Park, 2005 OK 71, ¶5, 123 P.3d 5, 6.
III. The Indian Gaming Regulatory Act (IGRA)
¶8 In 1987, the United States Supreme Court decided that an Indian tribe may operate bingo games on an Indian reservation located in a state that permits gaming for any purpose and that state law does not apply to bingo games played predominantly by non-Indians coming onto the Indian reservation. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). The Cabazon ruling impelled Congress to legislate in the area. Senate Report No. 100-446, reprinted in 1988 U.S.C.C.A.N. 3071 (S. Rep. No. 100-446).
¶9 Congress had considered the problems and benefits of Indian gaming in committee hearings for at least three years before Cabazon. Congress enacted Public Law 100-446, finding that gaming was a means of economic development for the tribes that would promote tribal self-sufficiency and strengthened tribal governments. 102 Stat. 2467 (1988). In Public Law 100-446, Congress legalized gaming in Indian country6 and provided a statutory framework for regulating gaming in Indian country in IGRA.7
¶10 Congress attempted to balance the federal, tribal and state interests in Indian gaming through a system of joint regulation in IGRA.8 IGRA established three classes of Indian gaming. Id. § 2703(6), (7) and (8). As to class I gaming (social games with prizes of minimal value and tribal ceremonial or celebrating games), tribal regulation is exclusive. Id. § 2710(a). As to class II gaming (bingo games played with cards, pull-tabs, lotto, punch boards and other games similar to bingo games played with cards), tribal regulation is subject to approval and oversight of the National Indian Gaming Commission. Id. § 2710(b). As to class III gaming (all gambling not included in class I or class II gaming), tribal regulation is subject to the terms of an agreement between the tribe and the state, a tribal-state compact. Id. § 2710(d).
¶11 In creating the tribal-state compact system and authorizing state regulation of gambling in Indian country, IGRA does not specifically address the subjects of damages to members of the public that may be caused by wrongful activity of Indian tribes and the judicial relief against the tribes. Instead, IGRA specifically authorizes the tribes and states to compact as to "any other subjects that are directly or indirectly related to the operation of gaming activities." Id. § 2710(d)(3)(C)(vii). Tribes and states may allocate the applicable law and forum for adjudication of patron tort claims. Id. § 2710(d)(3)(C)(i), (ii).
IV. The State-Tribal Gaming Act and The Model Tribal Gaming Compact
¶12 In 1988, the Oklahoma Legislature authorized the Governor to negotiate and enter into cooperative agreements with federally recognized Indian tribes in furtherance of federal policy and state-tribal relations, subject to approval by a legislative Joint Committee on State-Tribal Relations.9 At that time, Oklahoma permitted pari-mutuel wagering on horse races. Our governors negotiated and entered into off-track wagering compacts with numerous Indian tribes.10 The compacts are filed with the Oklahoma Secretary of the State as required by law.11 74 O.S.2001, § 1221(E). Two compacts with the Tribe in this case, filed with the Oklahoma Secretary of State on December 5, 1996, and March 28, 2001, allow that a tort claim against the Tribe may be filed in a court of competent jurisdiction and also allow a tort claimant to file suit in state district court or Tribal court, at the claimant's option.12
¶13 In 2004, Oklahoma voters approved casino-style gambling at horse race tracks and in Indian country. The Oklahoma Legislature passed the State-Tribal Gaming Act and sent it to a vote of the people.13 State Question No. 712, Legislative Referendum No. 335 (codified at 3A O.S.Supp.2004, §§ 261-281)(approved November 2, 2004). The Act sets out standards for the gaming machines and authorizes the Oklahoma Horse Racing Commission to implement and enforce the gaming statutes. 3A O.S.Supp.2004, § 262. It provides for the regulation and oversight of Indian gaming in accordance with the model compact. Id. §§ 262(F) and 281, Part 5. It also fully sets forth the "Model Tribal Gaming Compact," offering Indian tribes a nearly exclusive right to operate the covered gaming machines without substantial competition from nontribal entities. Id. § 281.
¶14 The model compact is offered, all or none, to the Indian tribes of Oklahoma, which if accepted, constitutes the gaming compact between this state and the accepting tribe for purposes of IGRA without any further action on behalf of the State of Oklahoma. Id. § 280. The model compact consists of Part 1 through Part 16. The model compact sets the fee to be paid to the state by the Indian tribe for the "substantial exclusivity and, consistent with the goals of IGRA, special opportunities for tribal economic opportunity through gaming within the external boundaries of Oklahoma in respect to the covered games."14 It defines the games that the tribes may offer to casino patrons as a means of generating revenue as authorized by IGRA,15 places responsibility for operation and regulation of the casino with the tribe,16 and places the oversight and monitoring of class III gaming with the Office of State Finance as the state compliance agency (SCA).17
¶15 The model compact recites the tribe's limited consent to suit for patron tort claims, mandates liability insurance coverage for the benefit of the public, prohibits the liability insurer from asserting tribal immunity, prescribes the procedure for casino patrons to claim damages, and expresses the tribe's consent to suit.18 As to tort claims in Part 6(A), the compact requires the tribal enterprise19 to maintain public liability insurance to cover tort claims in the minimum amounts set out in the compact or specified in the Governmental Tort Claims Act.20 Part 6(A) prescribes a procedure for seeking damages for tort claims against the enterprise. That procedure begins with notice of the tort claim to the TCA or the tribal enterprise for investigation and approval or denial; and if the tribe or tribal agency denies the claim, the claimant is authorized to file a judicial proceeding to recover damages not to exceed the limits of the mandated public liability insurance coverage. Part 6(A) requires the enterprise to make pamphlets available to the casino patrons explaining the tort claim procedure and also explaining that the procedure is exclusive and that if it is not followed, the claim shall be forever barred.21
¶16 As to suits on tort claims, the tort claimant22 is permitted to maintain a judicial proceeding for any cause arising from a tort claim subject to the limitations in Part 6(C), and the tribe23 consents to suit subject to the monetary limits and procedural conditions in Part 6(A) and Part 6(C). The tribe also consents to suit against the enterprise in a court of competent jurisdiction,24 the language at issue here.25 In other words, the tribe consents to suit two times. The first time the tribe consents to suit without any mention of a court in Part 6(A)(2), and the second time it consents to suit against its enterprise with mention of a court of competent jurisdiction in Part 6(C). Even if we were to find that our state courts are not competent to entertain a suit against the tribe's enterprise in Part 6(C), the tribe has also consented to be sued in Part 6(A)(2). We find no part in the compact where the tribe consents to suit "in tribal court only."
¶17 The model compact unmistakably gives the casino patron the right to recover damages on tort claims against the Indian tribe and against the tribe's enterprise. The compact imposes specific conditions and limits on the right: 1) it limits the amount of damages for which the tribe and/or the enterprise will be liable up to the monetary limits of Oklahoma's governmental tort claims law, 2) it restricts enforcement of a damages award to the liability insurance and prohibits the insurer from asserting tribal immunity, 3) it prescribes special notice-of-claim procedures for recovery of damages parallel to the state governmental tort claims statutory procedure, 4) it authorizes a judicial remedy to recover tort damages, and 5) it provides the tribe's clear and express consent to suit for damages. The compact does not, however, restrict the casino patron to tort damages under tribal law nor does it limit the casino patron to suit against the tribe or its enterprise in tribal court.
¶18 Although there is no language in the model compact making tribal law or tribal courts the exclusive protection for a wrongfully injured casino patron, the Tribe takes the position that Part 9 limits its consent to suit to the tribal courts only. Part 9 reads: "This compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction." Part 9 expresses intent not to "alter" whatever court has adjudicatory jurisdiction, but it does nothing to define a court of competent jurisdiction.26
¶19 The model compact governs Indian-country gaming activities by consent of the Indian tribe. It acknowledges that the "tribe is a federally recognized tribal government possessing sovereign powers and the rights of self-government,"27 that the "state and the tribe maintain a government-to-government relationship, and that this Compact will help foster mutual respect and understanding among Indians and non-Indians."28 Nothing in the compact provides that patron tort claims are to be adjudicated only in tribal court. Had that been the intent of the tribes and the state, the simple words "in tribal court only" could have been included in the compact.
¶20 We have carefully perused the model compact and studied the provisions in Part 6 pertaining to a casino patron's tort claim against the tribe. We conclude that the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron, whether suit be brought in state court, federal court, or tribal court.
V. "Court of Competent Jurisdiction"
¶21 Griffith took a position that the state district court is the "court of competent jurisdiction" by default because this is not a federal-question claim, the Tribe is not a citizen for purposes of diversity of citizenship, and the Tribe had no tribal courts when the statutory compact was negotiated, passed by the Oklahoma Legislature, approved by a vote of the people, signed by the Tribe, and/or published by the United States Secretary of the Interior. The Tribe, on the other hand, took an unsettled position that exclusive jurisdiction over Indian-country arising torts was vested in the tribal courts at the time the compact was executed, the compact preserved the tribal court's exclusive jurisdiction, and therefore, the consent to suit in a court of competent jurisdiction in the compact is consent to suit in tribal court only.
¶22 The Tribe argued that this Court has already recognized that a controversy such as the instant one lies exclusively in tribal court. The Tribe relies on an unpublished order of this Court in Muskogee (Creek) Nation Gaming Commission v. The Honorable Mary Fitzgerald, District Judge, No. 104,726. In that original action, the Creek Nation asked this Court to prohibit the state district court judge from proceeding further in Manwarring v. Muskogee (Creek) Nation Gaming Commission, No. CJ-207-745, Tulsa County District Court. This Court assumed original jurisdiction and issued the writ in an unpublished order. An unpublished order has no precedential value. Okla.Sup.Ct.R.1.200(b)(1) and (7), 12 O.S.2001, ch.15, app. I (Disposition of a case without a formal published opinion means that the Court did not believe the case involved any new point of law making the decision of value as precedent.). The non-precedential order in the Muskogee (Creek) Nation Gaming Commission case settled an issue for the involved parties only. An unpublished order is the law of the case but not the law of the State.
¶23 The Tribe also made a very tenuous argument that the meaning of the words "court of competent jurisdiction" "are not for this Court to decide" because Part 12 of the compact expressly provides that interpretation issues shall be decided in arbitration with review in the federal courts. Part 12 of the compact deals with resolution of disputes between the parties - the tribe and the state. Part 12(2) is the "parties consent to the jurisdiction of such arbitration [American Arbitration Association] forum and court [federal district court] for such limited purposes and no other, and each waives immunity with respect thereto." Without ruling, we express doubt that this is a dispute contemplated by Part 12 of the compact.
¶24 The phrase "court of competent jurisdiction" as used in federal statutes has long been construed to mean federal and state courts, Blackburn v. Portland Gold Mining Co., 175 U.S.571, 20 S.Ct. 222, 44 L.Ed.276 (1900), where the statute did not "in express language prescribe either a Federal court or a state court, and did not provide for exclusive or concurrent jurisdiction." Shoshone Mining Co. v. Rutter, 177 U.S. 505, 506, 20 S.Ct. 726, 44 L.Ed.2d 864 (1900). State jurisprudence is in accord. Lewis v. Sac and Fox Tribe of Okla. Housing Authority, 1994 OK 20, ¶15, 896 P.2d 503, 509-510.
¶25 Federal, state, and even tribal laws utilize the phrase "court of competent jurisdiction."29 Under basic rules of federal statutory construction, where the statute does not define its terms, they must be given their ordinary and natural meaning, Smith v. U.S., 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993); and if the phrase is not commonly understood, the court will inquire into the contemporaneous understanding, Roadway Express, Inc. v. Piper, 447 U.S. 752, 759, 100 S.Ct. 2455, 2460, 65 L.Ed.2d 488 (1980), or the common law meaning of the phrase. Gilbert v. U.S., 370 U.S. 650, 655, 82 S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962).
¶26 We recognize that as a matter of federal law, tribal immunity from suit in state court is not subject to diminution by the states and that an Indian tribe is subject to suit where Congress has authorized the suit or the tribe has waived immunity. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 756, 118 S.Ct. 1700, 1703, 140 L.Ed.2d 981 (1998). We also recognize that a tribe's waiver of immunity to suit in state court does not require specific or magic words - an arbitration provision together with a choice-of-law provision may constitute an unequivocal waiver of tribal immunity to suit in state court. C & L Enterprises, Inc. v. Citizens Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 422, 121 S.Ct. 1589, 1595-1596, 149 L.Ed.2d 623 (2001). Contrary to the no-magic-words ruling in C & L Enterprises, the Tribe insists that its consent to suit in the compact is not consent to suit in state court unless it literally uses the words "consents to suit in state court." We conclude 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 conclusion does not change, diminish, or expand the jurisdiction of tribal courts nor does it take away the right of a tort claimant to select the forum - state, federal, or tribal - to file a tort action.
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See: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2009+OK+51
Outcome: ¶27 In summary, the Tribe claims that "in a court of competent jurisdiction" means "in tribal court only." But the model compact does not say "in tribal court only." The compact says the "tribe consents to suit . . . with respect to tort claims" and the "tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim." The language in the compact could have easily restricted casino patrons' tort remedy to tribal courts, if the tribal government representatives and the state government representatives who proposed the state-tribal gaming legislation directed that those words be used in the measure. "In tribal court only" could have been typed on the keyboard by whoever typed the proposed compact. It is that simple. The language in other tribal compacts have specified that tort actions against the tribe may be filed in tribal court only. We reject the Tribe's claim that the proponents of the state-tribal gaming legislation really intended to waive tribal immunity "in tribal court only" when the compact does not disclose that intent.
¶28 We hold that Oklahoma district courts are "courts of competent jurisdiction" as that phrase is used in the Model Tribal Gaming Compact codified at 3A O.S. Supp.2004, § 281. Nothing in this opinion should be taken as a holding that a tribal court is not a "court of competent jurisdiction" or should be taken as eliminating the tribal court as a forum available to a tort claimant if the claimant chooses to file suit in tribal court.
DISMISSAL ORDER OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.
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