Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, 78825

Citation896 P.2d 503,1994 OK 20
Decision Date09 February 1994
Docket NumberNo. 78825,78825
Parties128 Oil & Gas Rep. 354, 1994 OK 20 Joann LEWIS and James F. Lewis, Husband and Wife, Plaintiffs-Appellees, Marjorie L. Wolf, Plaintiff, v. The SAC AND FOX TRIBE OF OKLAHOMA HOUSING AUTHORITY, a/k/a The Housing Authority of the Sac and Fox Tribe of Indians of Oklahoma, a/k/a Housing Authority of the Sac & Fox Nation, a/k/a Sac and Fox Indian Housing Authority of Oklahoma, Defendant-Appellant.
CourtSupreme Court of Oklahoma


In an action (a) for specific performance of the Sac and Fox Housing Authority's agreement with the Indian buyers (plaintiffs) to convey to them a fee simple estate and (b) for an accounting of oil and gas revenues, the trial court ruled that the state court had jurisdiction of the dispute and ordered the housing authority to convey the reserved mineral estate and to account for the proportionate share of the mineral revenues attributable to the contested property.


L. Susan Work, Seminole, for defendant-appellant.

Douglas L. Combs, Shawnee, for plaintiffs-appellees.

OPALA, Justice.

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


The Sac and Fox Nation [Tribe] is a federally recognized sovereign Indian tribe. In 1789 the Tribe entered into its first treaty with the United States and ceded much of its land. 1 A treaty-imposed migration followed over a number of years, as a result of which the Tribe eventually settled in 1867 at its final destination on the Sac and Fox Reservation in Indian Territory. 2 In response to white settlers' demands for land, Congress entered into a treaty designed to implement the provisions of the Dawes Act. 3 This treaty allowed the Tribe to retain 800 acres. Within the boundaries of that land, each The United States Housing Act of 1937 [1937 Act] ushered in the Low Rent Public Housing Program to assist states in remedying unsafe and unsanitary housing conditions plaguing low-income strata. 5 The 1937 Act, which also provided a statutory basis for furnishing low-cost housing to Indians, 6 was not implemented by the United States Department of Housing and Urban Development [HUD] until 1962. It was then that HUD made the program specifically available for Indian Country 7 and promulgated regulations directly affecting the creation and administration of Indian housing authorities [IHA]. 8 These regulations give the Indian tribes the opportunity to establish an IHA through the framework of either tribal or state law. 9 Our Legislature enacted the Oklahoma Housing Authorities Act 10 which authorizes the creation of local IHAs and makes them state agencies. 11

tribal member had the right to choose an allotment of one-quarter section. Congress ratified the treaty in 1891. 4

In conformity with the Oklahoma Act the Housing Authority of the Sac and Fox Tribe of Oklahoma [Authority] was created in 1966. 12 It provides low-income housing for tribal members and for other Indians with the use of HUD funds. In 1983 the Authority was reorganized under tribal law. 13 Because the Tribe's IHA had not received HUD approval for operating under the tribal law of 1983--a step needed to receive federal funding--the Authority continued its existence as a state agency under the Oklahoma Act. It acquired fee simple title to the property here in contest in 1974 by warranty deed from non-Indian owners. The deed imposes no restriction on ownership. The property, which is located in the city limits of Shawnee, Oklahoma, had originally been a Kickapoo Indian allotment. 14 The site was designated as housing Project 90-05.

The appellees, Joann and James F. Lewis [collectively called Lewis], who are tribal members, entered on December 22, 1974 into a Mutual Help and Occupancy Agreement [MHO Agreement] with the Authority. Pursuant to this contract Lewis' home was constructed on the project site. They were advised this home would be paid off on September 1, 1990 and title would then pass to them. By warranty deed the Authority did convey to Lewis surface rights only, reserving unto itself the oil and gas and other mineral rights underlying the property.

In this suit Lewis sought specific performance of the MHO contract and an accounting for all oil and gas revenues the Authority received since the date of the conveyance. The Authority objected both to the district court's in rem and in personam jurisdiction. Its challenge to state-court jurisdiction rested on a two-prong attack: (a) the sovereign-immunity status of the housing authority 15 and (b) the project's claim as a "dependent Indian community" within the definition of

"Indian Country". 16 The trial court denied the Authority's quest for the action's dismissal (for want of subject matter jurisdiction), ruling that, at the time of the parties' contract, the land in question was not within "Indian Country". After a bench trial the nisi prius court gave judgment to Lewis, directing the Authority to convey to them its title to the mineral interest in contest. 17 The Authority brings this appeal.

In 1953, Congress promulgated Public Law 83-280 [hereinafter PL-280] to provide a method for the states to assume criminal and/or civil jurisdiction over "Indian Country". 18 As originally proposed, PL-280 allowed states to assume cognizance without the consent of an affected tribe. 19 As part of the Indian Civil Rights Act of 1968, 20 Congress amended PL-280 to require that the state take some affirmative action when opting to extend its jurisdiction to Indian Country. 21 A state may assert cognizance over Indian Country only if the enrolled Indians have given their consent by tribal referendum. 22

The U.S. Supreme Court has continued to emphasize the congressional policy of fostering tribal autonomy as a guiding light in allocating jurisdiction to courts in states that have not complied with PL-280. 23 In Kennerly v. District Court, 24 the Court withheld from Montana concurrent state jurisdiction over Indian Country. There, two members Kennerly, which relies upon the teachings of Williams v. Lee 26 that "absent governing Acts of Congress, the question has always been whether the state action infringed upon the right of the reservation Indians to make their own laws and be ruled by them," 27 does not stand as authority defeating concurrent state jurisdiction in all civil cases. Its thrust "is concerned solely with the procedural mechanisms by which tribal consent must be registered." 28

                of the Blackfeet Tribe were sued in state court on a debt for food bought from a grocery store located on private land within the exterior boundaries of the reservation.   The Court concluded that Montana had not complied with the terms of PL-280, because the state never took affirmative legislative action to assume civil jurisdiction over the Blackfeet Reservation. 25

Another case from Montana, Fisher v. District Court, 29 stressed the overriding congressional policy of fostering tribal self-government. 30 There, while concurrent state cognizance was found inappropriate, the Court reiterated that the paramount test calls for a preliminary inquiry into whether assumption of jurisdiction would infringe upon tribal self-government. The Court reasoned that tribal courts provide the appropriate forum for settlement of those disputes over personal and property interests of Indians which arise out of tribal relationships. 31 The teachings of Kennerly and Fisher do not divest state courts of cognizance over all disputes among Indians. Where, as here, state law is implicated, governs the transaction and is invoked, and there is no infringement upon tribal self-government, there can be no barrier to state cognizance.

The U.S. Supreme Court's jurisprudence clearly supports the notion that not every controversy affecting Indians and their lands lies outside state-court jurisdiction. 32 In Oklahoma Tax Commission v. Graham 33 the Court held recently that a tribal sovereign immunity counterclaim, pressed in a state-court suit to enforce a tax assessment against an Indian tribe for its cigarette sales and bingo receipts, is not removable to a federal forum; it remains cognizable in a state court. In Cotton Petroleum Corp. v. New Mexico 34 the Court similarly held that unless pre-empted by federal law, New Mexico can tax on-reservation production of oil and gas by non-Indian lessees. 35

In sum, whenever Indian interests are tendered in a controversy, a state court must make a preliminary inquiry into the nature of the rights sought to be settled. 36 Only that litigation which is explicitly withdrawn by Congress or that which infringes upon tribal self-government stands outside the boundaries of permissible state-court cognizance. With this test in mind, we revisit today extant Oklahoma jurisprudence on In Housing Authority of the Seminole Nation v. Harjo, 38 a case which followed the path pursued by Ahboah v. Housing Authority of Kiowa Tribe, 39 this court concluded and proceeded on the assumption that all litigation among Indians lies dehors state-court jurisdiction. Its plainly overbroad statement resulted...

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