determining that the Montana “cases are inapplicable” to the jurisdictional propriety of a state tort action brought by a nonmember casino patron against a tribe “because they concern a tribe’s or a tribal court’s authority over non-Indians,” and “[t]he question in this matter is whether the state district court has acquired civil adjudicatory authority.”
How later courts described this case
- determining that the Montana “cases are inapplicable” to the jurisdictional propriety of a state tort action brought by a nonmember casino patron against a tribe “because they concern a tribe’s or a tribal court’s authority over non-Indians,” and “[t]he question in this matter is whether the state district court has acquired civil adjudicatory authority.”
- holding that a tribal court is not a court of general jurisdiction and that "[i]ts jurisdiction could be asserted in matters involving non-Indians only when their activities on Indian lands are activities that may be regulated by the Tribe"
Written by the judges who cited it.
Later courts went against this
Overruled in part by Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 Okla. LEXIS 105 (2013)
To the extent Dye, 2009 OK 52, 280 P.3d 507, Griffith, 2009 OK 51, 230 P.3d 488, and Cossey, 2009 OK 6, 212 P.3d 447 conclude otherwise, they are overruled.
The opinion
REIF, J.,
dissenting:
1 1 I respectfully dissent.
2 The majority holds that a State District Court has jurisdiction to determine the Hability of the Cherokee Nation for a tort claim arising from the Cherokee Nation's gaming activity on tribal land. In essence, the majority reasons that the Tribal Gaming Compact between the Cherokee Nation and State of Oklahoma is a part of the law of the State of Oklahoma and, therefore, tort claims against the Cherokee Nation that arise under the Compact are enforceable in State District Courts.
3 To be sure, the Compact does delineate the legal relationship between the State of Oklahoma and the Cherokee Nation with respect to tribal gaming activity on tribal lands. In that sense, the Compact does represent the law of the State of Oklahoma. However, the legal relationship between the State of Oklahoma and Cherokee Nation under the Compact is not one of regulator and licensee as in the case of Bittle v. Bahe, 2008 OK 10 , 192 P.3d 810 . 1 The relationship in the case at hand is "a government to government relationship" 2 involving a sovereign to sovereign agreement. The Compact represents the mutually agreed conditions under which the Cherokee Nation may conduct Class III gaming on Cherokee lands located within the territorial limits of the State of Oklahoma.
T4 Under the Compact, the Cherokee Nation waived its sovereign immunity and agreed to a system of tort liability comparable to that found in Oklahoma's Governmental Tort Claims Act. However, the Compact does not expressly extend Oklahoma's Governmental Tort Claims Act or any other Oklahoma tort law to the lands of the Cherokee nation. 3 More importantly, the Compact does not expressly allocate civil jurisdiction *483 to the State of Oklahoma for tort claims against the Cherokee Nation that arise from the Cherokee Nation's gaming activity on Cherokee lands. 4
1 5 The State of Oklahoma and the Cherokee Nation expressly agreed that "Th[e] Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction." In other words, a court or courts of competent jurisdiction to determine the liability of the Cherokee Nation under the Compact would be the same court or courts that could adjudicate the liability of the Cherokee Nation for tribal activity on tribal land in absence of the Compact. In non-Compact cases, the Courts of the Cherokee Nation are the only courts of competent jurisdiction to adjudicate the liability of the Cherokee Nation for activity by the Cherokee Nation on Cherokee lands. 5
I 6 The fact that tribal courts are courts of limited jurisdiction with respect to private disputes involving non-Indians is no barrier to the exercise of jurisdiction by the Courts of the Cherokee Nation over a non-Indian's tort claim against the Cherokee Nation for activity by the Cherokee Nation on Cherokee lands. While the Compact secures a tort remedy against the Cherokee Nation for Indians and non-Indians alike, it does not secure the enforcement of that remedy in the courts of the State of Oklahoma, or by the federal courts in absence of an independent federal question, such as a denial of due process. 6
. In the case of Bittle v. Bahe, this Court held that a State District Court had jurisdiction to determine the "dram shop" liability of an Indian tribe for alcohol served on tribal land under license by the State. However, in the Bittle case, the State of Oklahoma exercised power delegated by Congress to regulate the sale and distribution of alcohol by Indian tribes. I concurred in Biffle because I am of the opinion that Indian tribes stand in the same dependent relationship to the State's exercise of such delegated power as they do to the direct exercise of such power by Congress. Because Congress could impose "dram shop" liability, enforceable in state courts, as a regulatory measure, the State of Oklahoma could also extend such liability in exercise of its delegated power. Unlike Biffle, the case at hand involves no delegation of power to the State of Oklahoma to regulate gaming activity.
. Part 2, Subsection 3, of the Compact.
. The majority characterizes plaintiff Cossey as an "invitee" and declares "the Tribe had the duty to exercise reasonable care to keep the premises in a reasonably safe condition and to warn Cossey of conditions which were in the nature of hidden dangers, traps, snares or pitfalls." While this is a correct statement of the common law rules of premises liability, such rules are part of the tort law of the State of Oklahoma. Nothing in the record reflects that the Cherokee Nation has adopted common law rules of premises liability as the law of the Cher *483 okee Nation. More importanily, the Compact does not require the Cherokee Nation to adopt or apply any particular rules of tort law, but only 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 or property damage." The Compact is not only silent regarding the application of Oklahoma tort law, but Part 6, Subsection D, reflects intent that tribal tort law is the applicable tort law. Subsection D provides remedies in cases where the Tribe has no insurance or inadequate insurance to pay a tort claim. In such cases the Tribe must (1) establish an escrow account to pay awards, (2) give the claimant and the state certain information about the escrow account, and (3) provide "notice and hearing opportunities in accordance with the tribe's tort law, if any." (Emphasis added.)
. Title 25 U.S.C. § 2710 (d)(3)(C)(i) and (ii).
. The concurring in part; dissenting in part opinion asserts that there are at least three jurisdictional options-federal, state or tribal court-based on the facts presented. My disagreement with the concurring in part; dissenting part opinion concerning federal court jurisdiction is that a tort claim against the Cherokee Nation arising under the Compact does not in and of itself involve a federal question to support the exercise of jurisdiction by the federal courts.
. I also disagree with the conclusions in the majority opinion and the concurring in part; dissenting in part opinion that the Cherokee Nation must demonstrate one of the "Montana exceptions" before the Courts of the Cherokee Nation can exercise jurisdiction over a non-Indian's compact-based tort claim against the Cherokee Nation for activity on Cherokee Lands. The only condition in the Compact for the exercise of tribal court jurisdiction is that the Cherokee Nation "ensure that patrons of a facility are afforded due process in seeking and receiving just and reasonable compensation for a tort claim." In my opinion, it is the claimant that has the burden of demonstrating the denial of due process by a tribal court. Such a denial of due process could conceivably give rise to a federal question that would support the exercise of federal court jurisdiction over a Compact-based tort claim against the Cherokee Nation. 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. Title 25 U.S.C. § 1302 . This includes exercise of its judicial power. Title 25 U.S.C. § 130102 ).
Even if one of the "Montana exceptions" was required for the exercise of jurisdiction by the Courts of the Cherokee Nation, I believe a non-Indian patron at a Cherokee Nation casino has voluntarily entered tribal land to conduct commercial activity with the tribe, in the same way a non-Indian might enter tribal land to conduct business with the Cherokee Nation's nursery and landscaping enterprise. In this latter instance, the Courts of the Cherokee Nation clearly have jurisdiction under the "second Montana exception" to determine any liability the Cherokee Nation may have for injury or property loss sustained by a non-Indian in the course of such a transaction.