Cossey v. Cherokee Nation Enterprises, LLC

• Decision Date: 20 January 2009
• Docket Number: No. 105,300.,105,300.
• Parties: Loyman COSSEY, Plaintiff/Respondent, v. CHEROKEE NATION ENTERPRISES, LLC, formerly known as Cherokee Nation Enterprises, Inc., and Cherokee Nation Enterprises, Defendant/Petitioner.
• Court: Oklahoma Supreme Court

212 P.3d 447

2009 OK 6

Loyman COSSEY, Plaintiff/Respondent, v. CHEROKEE NATION ENTERPRISES, LLC, formerly known as Cherokee Nation Enterprises, Inc., and Cherokee Nation Enterprises, Defendant/Petitioner.

No. 105,300.

Supreme Court of Oklahoma.

January 20, 2009.

Rehearing Denied June 11, 2009.

ON WRIT OF CERTIORARI OF CERTIFIED INTERLOCUTORY ORDER TO THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA; DYNDA POST, JUDGE

¶ 0 Plaintiff/Respondent Loyman Cossey sued Defendants/Petitioners Cherokee Nation Enterprises, L.L.C., formerly known as Cherokee Nation Enterprises, Inc., and Cherokee Nation Enterprises, Inc. (collectively, CNE), in state court for personal injuries he received on October 19, 2005, at the Cherokee Casino in Roland, Oklahoma. CNE appeared specially and moved to dismiss for lack of subject matter and personal jurisdiction, pursuant to 12 O.S. Supp.2004 § 2012(b)(1), (2), and (F)(3). The court denied the motion to dismiss. On January 7, 2008, this Court granted the petition for certiorari filed by CNE for review of the court's order as a certified interlocutory order, pursuant to 12 O.S.2001 § 952(b)(3).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Darren M. Tawwater, Larry A. Tawwater, Oklahoma City, OK, for Plaintiff/Respondent.

Stratton Taylor, Bradley Harold Mallett, Mark Harrison Ramsey, Claremore, OK, for Defendant/Petitioner.

Robert L. Rabon, Hugo, OK, for the Choctaw Nation as Amicus Curiae.

Deanna Hartley-Kelso, Chickasaw Nation Attorney General, and Stephen H. Greetham, Chickasaw Nation Division of Commerce, Ada, OK, for the Chickasaw Nation as Amicus Curiae.

OPINION

WATT, J.:

¶ 1 We are asked to determine whether the District Court of Rogers County, Oklahoma (state court), is a "court of competent jurisdiction" as that term is used in the "Tribal Gaming Compact Between the Cherokee Nation and the State of Oklahoma" (the Compact), executed on November 16, 2004. The Compact is based on the Model Tribal Gaming Compact, 3A O.S. Supp.2004 § 281, which is part of the State-Tribal Gaming Act, 3A O.S. Supp.2004 §§ 261-282. The parties to the Compact are the Cherokee Nation (Tribe) and the State of Oklahoma. We hold that the state court is a "court of competent jurisdiction" as that term is used in the Compact executed by the parties.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 Plaintiff/Respondent Loyman Cossey, a non-Indian,¹ sued Defendants/Petitioners Cherokee Nation Enterprises, L.L.C., formerly known as Cherokee Nation Enterprises, Inc., and Cherokee Nation Enterprises, Inc., (collectively, CNE), in state court for personal injuries he received on October 19, 2005, while he was a customer at the Cherokee Casino in Roland, Oklahoma. CNE appeared specially and moved to dismiss for lack of subject matter and personal jurisdiction, pursuant to 12 O.S. Supp.2004 § 2012(b)(1), (2), and (F)(3). The court denied the motion to dismiss. On January 7, 2008, this Court granted the petition for certiorari filed by CNE for review of the court's order as a certified interlocutory order pursuant to 12 O.S.2001 § 952(b)(3).²

II. STANDARD OF REVIEW

¶ 3 We review a question of law. When an assigned error is one of law, the standard of review is de novo, a non-deferential, plenary and independent review of the trial court's legal ruling. Tibbetts v. Sight `n Sound Appliance Centers, Inc., 2003 OK 72, 77 P.3d 1042; Christian v. Gray, 2003 OK 10, 65 P.3d 591.

III. IDENTIFICATION OF PARTIES AND THEIR CONTENTIONS

¶ 4 CNE contends the Cherokee Nation tribal court is the only court of competent jurisdiction to hear a claim which arose in Indian Country against the Tribe. In addition to its argument that it is entitled to assert the immunity of the Cherokee Nation, CNE contends the Compact provides only a limited, conditional waiver of that immunity. CNE further argues that because the state has not complied with federal law, as discussed in Part IV., infra, the tribal court is the only court with "civil adjudicatory jurisdiction" in Indian Country and thus is the only "court of competent jurisdiction" to consider Cossey's tort claim. CNE does not dispute the fact that the Tribe consented to suit under the Compact with respect to tort claims but argues that there are limitations on that consent and on the extent of its liability.³

¶ 5 Cossey, a non-Indian, contends the Tribe is not a party to this suit⁴ and that CNE may not assert the Tribe's sovereign immunity. He also argues that the doctrine of sovereign immunity was never meant to protect entities conducting "non-tribal business" which is unrelated to the activity of furthering tribal self-government, citing Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). He also contends the state courts have at least concurrent jurisdiction with tribal courts over his tort claim because the Tribe consented to suit under the Compact which is derived from the Oklahoma Statutes.

¶ 6 While we agree with Cossey, and we hold, that the Tribe, in conducting "non-tribal business," is not entitled to sovereign immunity from suit in state court in this case,⁵ we disagree that state court jurisdiction over his tort claim is derived totally from the Tribe's consent to suit under the Compact.

IV. STATE COURT JURISDICTION OF CLAIMS ARISING ON INDIAN LAND AND THE EFFECT OF "PUBLIC LAW 280"

¶ 7 To support its contention that state courts have no jurisdiction over tort claims under the Compact, CNE refers us to Part 9 of the Compact. It provides the following:

This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction. (emphasis added).

¶ 8 CNE contends the above section does not provide Oklahoma courts with jurisdiction over claims in Indian Country. It contends Oklahoma had not acquired civil adjudicatory jurisdiction over such claims before the Compact was executed because the State has failed to comply with federal law enacted in 1953 known as "Public Law 83-280" (PL-280).⁶ When Oklahoma entered the Union, our constitution provided that the State of Oklahoma relinquished any right to control Indian tribes or enter upon tribal lands.⁷ PL-280 allowed states such as Oklahoma to take affirmative action through constitutional amendment or enactment of a statute to assume criminal and/or civil jurisdiction over "Indian Country." In 1968, PL-280 was amended as part of the Indian Civil Rights Act (ICRA). See 25 U.S.C. §§ 1321-1326; P.L. 90-284, Title IV, § 401 (1968); 82 Stat. 77, codified, and as amended, 25 U.S.C. §§ 1301-1303, in 1982 and thereafter. It provided for the states' assumption of civil jurisdiction over claims arising in Indian Country but required the "consent of the tribe occupying the particular Indian country." See 25 U.S.C. § 1322(a).⁸

¶ 9 This Court acknowledged Oklahoma did not take steps to assume jurisdiction under the previous PL-280 in Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority.⁹ We held that "[b]ecause Oklahoma did not take the appropriate steps to take jurisdiction under PL-280, the proper inquiry to be made in this case must focus upon the congressional policy of fostering tribal autonomy in the light of pertinent U.S. Supreme Court jurisprudence." Lewis, 896 P.2d at 507, n. 21 (citation omitted). CNE contends the consent under the Compact is ineffective because there was no vote taken by the entire tribal membership, as required by Kennerly v. District Court of Ninth Judicial District of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507.¹⁰ We disagree.

¶ 10 Kennerly and the cases upon which it relied are distinguishable. There was no federal statute, such as the IGRA, containing specific requirements for approval by the Tribe's governing body to engage in Class III gaming. Moreover, the IGRA also provides that such gaming is to be subject to state law, i.e., the Model Tribal Gaming Compact, 3A O.S. Supp.2004 § 281, which is part of the State-Tribal Gaming Act, 3A O.S. Supp.2004 §§ 261-282. See § 2710(d)(2)(C) of the IGRA which provides:

(C) Effective with the publication under subparagraph (B) of an ordinance or resolution adopted by the governing body of an Indian tribe that has been approved by the Chairman under subparagraph (B), class III gaming activity on the Indian lands of the Indian tribe shall be fully subject to the terms and conditions of the Tribal-State compact entered into under paragraph (3)¹¹ by the Indian tribe that is in effect. (emphasis added).

¶ 11 See also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), which held PL-280 is not independently sufficient to confer jurisdiction on a State to extend the full range of regulatory authority over Indians and reservations. We hold that Public Law 280 is not an impediment to state court jurisdiction and is, in fact, inapplicable to this case.

V. TRIBAL COURT'S JURISDICTION UNDER THE INDIAN GAMING REGULATORY ACT

¶ 12 We next consider whether Congress, through the enactment of the IGRA, enlarged tribal-court jurisdiction. The IGRA provides at § 2710(d)(3)(C) a list of provisions which any negotiated tribal-state compact "may" include. "May" is ordinarily construed as permissive, while "shall" is ordinarily construed as mandatory. See Osprey L.L.C. v. Kelly-Moore Paint Co., Inc., 1999 OK 50, 984 P.2d 194; Shea v. Shea, 1975 OK 90, 537 P.2d 417. Section 2710(d)(3)(C) provides in part:

(C) Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to—

(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;

(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;.... (emphasis added).

¶ 13 The Compact here does not include any such allocation of jurisdiction. Instead, the...