Dye v. Choctaw Casino Of Pocola

• Decision Date: 12 April 2010
• Docket Number: 737.,No. 104,104
• Citation: 2009 OK 52,230 P.3d 507
• Parties: Danny DYE and Pat Dye, Husband and Wife, Plaintiffs/Appellants,v.CHOCTAW CASINO OF POCOLA, Oklahoma, and The Choctaw Nation of Oklahoma, Defendants/Appellees.
• Court: Oklahoma Supreme Court

230 P.3d 507

2009 OK 52

Danny DYE and Pat Dye, Husband and Wife, Plaintiffs/Appellants,v.CHOCTAW CASINO OF POCOLA, Oklahoma, and The Choctaw Nation of Oklahoma, Defendants/Appellees.

No. 104,737.

Supreme Court of Oklahoma.

June 30, 2009.

Rehearing Denied April 12, 2010.

On Writ of Certiorari to the Court of Civil Appeals, Division I.

¶ 0 Danny and Pat Dye filed a petition in the state district court against the Choctaw Nation and its casino in Pocola, Oklahoma, to recover tort damages. The Choctaw Nation moved to dismiss on the basis of tribal sovereign immunity. The district court dismissed the petition. The Dyes appealed. The Court of Civil Appeals reversed and remanded the cause. We granted the Choctaw Nation's petition for certiorari review.

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

Daniel W. Walker, Fort Smith, AR, for plaintiffs/appellants.

Robert Lee Rabon, Hugo, Oklahoma, Dennis W. Arrow, Oklahoma City, OK, for defendants/appellees.

Graydon Dean Luthey, Jr., Tulsa, Oklahoma, Diane Hammons, Tahlequah, OK, for Cherokee Nation and Cherokee Nation Businesses, LLC, amici curiae.

Deanna Hartley-Kelso, Debra Gee, Stephen H. Greetham, Jesse D. Green, Ada, OK, for Chickasaw Nation, amicus curiae.

William R. Norman, Jr., Kirke Kickingbird, Klint A. Cowan, Oklahoma City, OK, for Comanche Nation Gaming Corporation and Sac and Fox Nation Business Enterprises, Inc., amici curiae.

Larry A. Tawwater, Darren M. Tawwater, Rex Travis Paul Kouri, Oklahoma City, OK, for The Oklahoma Association for Justice, amicus curiae.

PER CURIAM.

¶ 1 One question is presented in this appeal: Is the state district court a court of competent jurisdiction as used in the gaming compact between the Choctaw Nation of Oklahoma and the State of Oklahoma such that the district court may exercise jurisdiction over this Indian-country arising negligence action filed by a casino patron against the Choctaw tribe and its casino? We answer in the affirmative.

¶ 2 The Choctaw Nation of Oklahoma, a federally recognized Indian tribe ¹ (Tribe), owns a casino which it operates through its tribal enterprise, the Choctaw Casino of Pocola, Oklahoma (casino). The Tribe offers class III gaming ² 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 Dye ⁴ 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, 212 P.3d 447, 460 (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, 230 P.3d 488 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, 230 P.3d 488 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.

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.

KAUGER, J., concurring in part/dissenting in part:

¶ 1 My analysis of the core issues remains unchanged from what I expressed in Cossey v. Cherokee Nation Enterprises, LLC., 2009 OK 6, 212 P.3d 447 (rehearing denied June 11, 2009). I was troubled by two implications in Cossey. The writing implied that: 1) tribal courts are not courts of competent jurisdiction; and 2) jurisdiction might depend on whether the casino patron was an Indian or a non-Indian. Today's opinion clearly dispels these concerns, holding that: 1) the casino patron may select tribal courts as a forum for bringing such a tort claim because a tribal court is “court of competent jurisdiction;” and 2) recognizing that the plaintiff is a non-Indian, non-tribal member who voluntarily entered onto tribal land to do business, thus subjecting herself to potential tribal court jurisdiction.

¶ 2 Nevertheless, the majority's analysis of the issues continues to bother me. The majority opinion states: “[w]e conclude that the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron whether suit be brought in state court, federal court or tribal court.” I agree that the first portion of this statement is true, the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron. It is the remainder of the statement which is unsupported. The crux of this dispute, and the reason for five separate writings in this cause as well as five separate writings in Cossey, is that the compact is obviously ambiguous because it does not clearly and unequivocally state which court has jurisdiction.

¶ 3 The majority makes the finding of clarity without supporting evidence. Nevertheless, the Court might have...