Petition for Writ of Certiorari — Housing Authority of the Sac & Fox Nation v. Lewis

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Supreme Court, u.8, ’

FILED

YY Bpe 449SEP 13 0997

No. OFFIGE OF TSE Cila

In The

Supreme Court of the United States

October Term, 1995

HOUSING AUTHORITY OF THE

SAC AND FOX NATION,

Petitioner,

JOANN LEWIS AND JAMES F. LEWIS,

HUSBAND AND WIFE,

Respondents.

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Oklahoma

PETITION FOR WRIT OF CERTIORARI

G. WiuiaM Rice, Esa.*

Attorney General, Sac and

Fox Nation

Grecory H. Bicter, Esa.

Assistant Attorney General

Rick & BIGLER

P.O. Box 269

124 N. Cleveland

Cushing, Oklahoma 74023

(918) 225-4800

Attorneys for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

PRELIMINARY MATTER!

QUESTIONS PRESENTED

1. Whether the State of Oklahoma has inherent and

concurrent civil jurisdiction to apply state law and adju-

dicate controversies between Indians and the Tribes or

Tribal Agencies such as the Housing Authority of the Sac

and Fox Nation.

2. Whether the Indian housing projects constructed by

the Housing Authority of the Sac and Fox Nation pur-

suant to the Indian Housing Program established by Con-

gress and administered by the Department of Housing

and Urban Development to provide homes for homeless

Indians are Indian Country, and, if so, whether the pass-

ing of title to the home from the Housing Authority to the

Indian participant extinguishes the Indian Country status

of the home.

3. Whether sovereign immunity bars this action in the

Courts of the State of Oklahoma.

1 Marjorie L. Wolf was initially a party to the suit in the

State District Court, but dismissed her claim prior to the

appeal to the Oklahoma Supreme Court. She is listed in the

caption of the decision of the Oklahoma Supreme Court but

was not a party to the appeal. The Housing Authority of the

Sac and Fox Nation has also been known as “The Sac and Fox

Tribe of Oklahoma Housing Authroity”, “The Housing Author-

ity of the Sac and Fox Tribe of Indians of Oklahoma”, and “The

Sac and Fox Indian Housing Authority of Oklahoma.” The

Housing Authority of the Sac and Fox Nation is a govern-

mental agency of the Sac and Fox Nation, a federally recog-

nized Indian Tribe.

TABLE OF CONTENTS

QUESTIONS PRESENTED .......cccccccccccccsccss

OPINIONS BELOW. «ois cccconccvccnceeascussseess

JURISDICTION 5.69.50 0: 00a vdwd 0b ote cagee stp eeenes cs

TREATY AND STATUTORY PROVISIONS..........

STATEMENT OF THE CASE... 0. cccccccccescnccces

Nature of the Controversy ..............++++.

2. The Proceedings BOWW b.cccccdcccncoscssncss

REASONS FOR GRANTING THE WRIT ...........

Il.

THE OKLAHOMA SUPREME COURT'S OPIN-

ION CLAIMING INHERENT AND CONCUR-

RENT JURISDICTION OVER DISPUTES

BETWEEN INDIANS AND INDIAN HOUSING

AUTHORITIES IN THE ABSENCE OF SPECIFIC

FEDERAL LEGISLATION PROHIBITING SUCH

JURISDICTION, AND APPLYING STATE LAW

THERETO, IS IN CONFLICT WITH THE DECI-

SIONS OF THIS COURT AND THE FEDERAL

APPELLATE CUMS Oe s0kvessese eaheceeievenys

THE OKLAHOMA SUPREME COURT’S OPIN-

ION DETERMINING THAT THE HOME AT

ISSUE WAS NOT INDIAN COUNTRY BY VIR-

TUE OF ITS ACQUISITION FROM FEE SIMPLE

OWNERSHIP BY THE HOUSING AUTHORITY

AND THE DEED TO THE PARTICIPANT IN

CONTROVERSY IN THIS CASE IS IN CON-

FLICT WITH THE DECISIONS OF THIS COURT

AND ADDRESSES AN IMPORTANT ISSUE OF

FEDERAL LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.....

iii

TABLE OF CONTENTS - Continued

Page

Ill. THE FAILURE OF THE OKLAHOMA

SUPREME COURT TO DISMISS ON SOVER-

EIGN IMMUNITY GROUNDS IS IN CON-

FLICT WITH THE DECISIONS OF THIS

COURT AND THE FEDERAL APPELLATE

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APPENDIX A - OKLAHOMA SUPREME

EY GME ORERION Wik 050 0.00 ad's le cute se¥e App. 1

APPENDIX B - OKLAHOMA DISTRICT COURT

EN Beco p os 468 ea> shiv eeenswsassyas App. 62

TABLE OF AUTHORITIES

Page

CAsEs:

Bank of Oklahoma v. Muscogee (Creek) Nation, 972

PO SHOW Ceres Ce Oe oho as ech iver vedere. 13

California v. Cabazon Band of Mission Indians, 480

ie Se 8g RP er ery pre epee erm re 10

Gulf Offshore v. Mobil Oil, 453 U.S. 473 (1981) ....... 12

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) .... 13

Kennerly v. District Court, 400 U.S. 423 (1971)........ 10

Kerr-McGee v. Navajo Tribe, 471 U.S. 195 (1985) ..... 7, 8

Lewis v. Sac and Fox Housing Authority, 896 P.2d

SOB Ges Bac sks cig cinsdcasinns a Aadedss 10, 12

Lynch v. United States, 292 U.S. 571 (1934)........... 18

McClanahan v. Arizona Tax Commission, 411 U.S.

DE TE dete oe ek aes oe dea eek a 13

National Farmers Union Ins. Cos. v. Crow Tribe, 471

CE ER hk 0 inno cen s cokes See anaes ss 13

Oklahoma Tax Commission v. Potawatomi Indian

po Ml to MO. | Peer eer rrr 18

Oklahoma Tax Commission v. Sac and Fox Nation, ___

She RED BRM Poe Cs oo ls ve ctw ide eeciacs 6

Puyallup Tribe, Inc. v. Washington Department of

Game, 433 U.S. 165 (1977)... ccc cccccscecccvcccees 17

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).... 17

Seneca-Cayuga Tribe v. State ex rel. Thompson, 874

F.2d 709 (10th Cir. 1989).......... cece cece ce ceeees 11

TABLE OF AUTHORITIES - Continued

Page

United States v. McGowan, 302 U.S. 535 (1938)....... 15

United States v. Martine, 442 F.2d 1022 (10th Cir.

BOE Bs cb Cede b cs Oh eT eae Ee ER eh obec is 15

United States v. Mitchell, 445 U.S. 535 (1980)......... 18

United States v. State of South Dakota, (8th Cir.

1981), 665 F.2d 837, certiorari denied 459 U.S.

MN ae chee eae ba ee ERE OUT Ce Obs Cok ee 15

United States v. United States Fidelity & Guaranty

i, ee aid Se: CUDA sx 4g Nas Ged Peace cence ke 17

White Mountain Apache Tribe v. Bracker, 448 U.S.

pb RR ee nn rere ere Tr er ene 10, 12

Williams v. Lee, 83 Ariz. 241, 319 P.2d 998 (1958) .... 10

| Wiltiames ©. Lae, SER TS. TAF CERI ccc cickccsesseses 10

Worcester v. Georgia, 31 U.S. 515 (1832).............. 11

Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820

NE oa Sse aa Gale 5a sedn oa ae aed tee 12

| CONSTITUTIONS:

U.S. Constitution, Article I, Section 8, Clause 3....... 2

STATUTES:

Indian Financing Act of 1974, 88 Stat. 77, 25 U.S.C.

2) oe & | Weeererrnrrer: Srerer rere re yer ree Tee 18

Indian Reorganization Act, 25 U.S.C. § 476 et seq..... 5

Indian Self-Determination and Education Assis-

tance Act, 88 Stat. 2203, 25 U.S.C. § 450 et seq.... 18

siecle

TABLE OF AUTHORITIES - Continued

Page

Oklahoma Indian Welfare Act, 25 U.S.C. § 501 et

BOQ. oc cesccccccccccccccccccecccccssncsssscessccesss 5

Sac and Fox Housing Authority Act of 1983, SF

Public Law SPGIAES coc cccccdvccccccsenseecenssss 7, 8

Sac and Fox resolution SF-66-4 dated November

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TABLE OF AUTHORITIES - Continued

Page

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OTHER:

Charles Wright, Law of Federal Courts, (1983 ed.) .... 19

No.

In The

Supreme Court of the United States

October Term, 1995

HOUSING AUTHORITY OF THE

SAC AND FOX NATION,

Petitioner,

JOANN LEWIS AND JAMES F. LEWIS,

HUSBAND AND WIFE,

Respondents.

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Oklahoma

PETITION FOR WRIT OF CERTIORARI

Petitioner, Housing Authority of the Sac and Fox

Nation, respectfully prays that a writ of certiorari issue to

review the order and judgment of the Supreme Court of

the State of Oklahoma entered in this proceeding on

February 9, 1994, rehearing having been denied on June

15, 1995.

OPINIONS BELOW

The opinion of the Supreme Court of the State of

Oklahoma is reported at 896 P.2d 503, and is reprinted in

the appendix hereto, page App. 1, infra. The Order of the

Supreme Court of the State of Oklahoma on rehearing is

not reported and is reprinted in the Appendix at page

App. 62.

The orders of the District Court of the Twenty-Third

Judicial District sitting within and for Pottawatomie

County, State of Oklahoma have not been reported. They

are reprinted in the Appendix hereto beginning at page

App. 47.

JURISDICTION

The opinion of the Supreme Court of the State of

Oklahoma was entered on February 9, 1994. Petitioner’s

Petition for Rehearing was denied on June 15, 1995. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1257.

TREATY AND STATUTORY PROVISIONS

United States Constitution, Article I, Section 8, Clause 3:

“Congress shall have Power . . . to regulate Commerce

. with the Indian Tribes.”

18 U.S.C. § 1151, Indian country defined

Except as otherwise provided in sections 1154 and

1156 of this title, the term “Indian country”, as used in

this chapter, means (a) all land within the limits of any

Indian reservation under the jurisdiction of the United

States Government, notwithstanding the issuance of any

patent, and, including rights-of-way running through the

reservation, (b) all dependent Indian communities within

the borders of the United States whether within the origi-

nal or subsequently acquired territory thereof, and

whether within or without the limits of a state, and (c) all

Indian allotments, the Indian titles to which have not

been extinguished, including rights-of-way running

through the same.

28 U.S.C. § 1322. Assumption by State of civil jurisdic-

tion

(a) Consent of United States; force and effect of civil

laws

The consent of the United States is hereby given to

any State not having jurisdiction over civil causes of

action between Indians or to which Indians are parties

which arise in the areas of Indian country situated within

such State to assume, with the consent of the tribe occu-

pying the particular Indian country or part thereof which

would be affected by such assumption, such measure of

jurisdiction over any or all such civil causes of action

arising within such Indian country or any part thereof as

may be determined by such State to the same extent that

such State has jurisdiction over other civil causes of

action, and those civil laws of such State that are of

general application to private persons or private property

shall have the same force and effect within such Indian

country or part thereof as they have elsewhere within

that State.

(b) Alienation, encumbrance, taxation, use, and pro-

bate of property

Nothing in this section shall authorize the alienation,

encumbrance, or taxation of any real or personal prop-

erty, including water rights, belonging to any Indian or

any Indian tribe, band, or community that is held in trust

by the United States or is subject to a restriction against

alienation imposed by the United States; or shall autho-

rize regulation of the use of such property in a manner

inconsistent with any Federal treaty, agreement, or stat-

ute, or with any regulation made pursuant thereto; or

shall confer jurisdiction upon the State to adjudicate, in

probate proceedings or otherwise, the ownership or right

to possession of such property or any interest therein.

Any tribal ordinance or custom heretofore or hereaf-

ter adopted by an Indian tribe, band, or community in the

exercise of any authority which it may possess shall, if

not inconsistent with any applicable civil law of the State,

be given full force and effect in the determination of civil

causes of action pursuant to this section.

42 U.S.C. § 1437bb. Mutual help homeownership oppor-

tunity program

(a) Establishment

The Secretary [of HUD] shall carry out a mutual help

homeownership opportunity program for Indian families

in accordance with this section. The program shall be

designed to meet the homeownership needs of Indian

families on Indian reservations and other Indian areas,

including Indian families whose incomes exceed the

levels established for low-income families.

ee a ee ee

ee ee i i ee

(b) Financial assistance

(1) In general

The Secretary may, to the extent provided in appro-

priation Acts, enter into contracts with Indian housing

authorities under subchapter I of this chapter to provide

financial assistance for the development, acquisition,

operation, and improvement of housing projects under

this section.

STATEMENT OF THE CASE —

1. Nature of the Controversy.

In this case, two Indian participants in the Mutual

Help Homeownership Opportunity Program of the Hous-

ing Authority of the Sac and Fox Nation are attempting to

use the Courts of the State of Oklahoma to require the

Housing Authority to convey to the participants the inter-

ests in the oil and gas and other minerals lying beneath

their home in the face of tribal legislation which severs

that mineral interest and requires that the income from

such minerals be used for the benefit of the Housing

Authority’s housing programs, and to require the Hous-

ing Authority to account to the participants for oil and

gas produced from the property from the date the partici-

pants acquired ownership of the home.

The Sac and Fox Nation is a federally recognized

Indian tribe located within the State of Oklahoma, which

is organized pursuant to the Oklahoma Indian Welfare

Act, 25 U.S.C. § 501 et seq. and the Indian Reorganization

Act, 25 U.S.C. § 476 et seq. The reservation of the Sac and

Fox Nation lies in central Oklahoma and has been repeat-

edly recognized by Congress as a reservation for various

purposes. See, e.g. 12 U.S.C.A. § 4702, (Community Devel-

opment Banking and Financial Institutions); 16 U.S.C.A.

§ 1722 (Public Lands Corps); 25 U.S.C.A. § 1452 (Financ-

ing Economic Development of Indians and Indian Orga-

nizations); 25 U.S.C.A. § 2024 (Tribal Departments of

Education); 25 U.S.C.A. § 3103 (National Indian Forest

Resources Management); 25 U.S.C.A. § 3202 (Indian Child

Protection and Family Violence Prevention); 25 U.S.C.A.

§ 3501 (Indian Energy Resources); 29 U.S.C.A. § 750

(Indian Vocational Rehabilitation Services); 33 U.S.C.A.

§ 1377 (Water Pollution Prevention And Control); 42

U.S.C.A. § 682 (Job Opportunities and Basic Skills Train-

ing Program); 42 U.S.C.A. § 5318 (Urban development

action grants); Oklahoma Tax Commission v. Sac and Fox

Nation, __ U.S. __, 113 S.Ct. 1985 (1993).

The Sac and Fox Nation established the Sac and Fox

Housing Authority in 1966 to provide low-income hous-

ing for its citizens and other Indians in order to take

advantage of the Indian Housing programs which had

been instituted by the United States Department of Hous-

ing and Urban Development (HUD) in 1962. The 1966

resolution and the federal Housing Act of 1937 were

silent as to any express waiver of sovereign immunity

and designation of a forum in which the Housing Author-

ity could be sued. In 1974, the Housing Authority entered

in a certain “Mutual Help and Occupancy Agreement”

(MHO) and “Lease” with the Lewis’ which are the subject

of this action. The MHO provides variously that the

Authority will, once all borrowed money attributable to

the house has been paid back through HUD, “convey to

the Participant all of its interest in his house and

grounds” and “convey to the Participant the maximum

interest in the Participant’s house and grounds that it can

give.” The property upon which the participants house

was to be built pursuant to the Housing Program was

acquired in fee simple by the Housing Authority. This

acquisition included certain mineral rights to the land.

The participant’s home was constructed as a part of a

“cluster” development which included the participant’s

home and several other homes constructed for the pur-

pose of providing homes to homeless Indians pursuant to

the federal Indian Housing Program.

The Sac and Fox Nation reorganized.the Housing

Authority in the Sac and Fox Housing Authority Act of

1983, SF Public Law SF-83-25, renaming it as the Housing

Authority of the Sac and Fox Nation. All the members of

the Board of Commissioners of the Housing Authority

continue to be appointed by the Sac and Fox Nation. This

Act provides for a limited waiver of Housing Authority

sovereign immunity and specifically designates the

Courts of the Sac and Fox Nation as the forum in which

the Housing Authority may be sued. This Act further

severs the minerals underlying the projects of the

Authority and provides that they cannot be conveyed by

deed absent the express permission of the tribal legisla-

ture. The constitution of the Sac and Fox Nation does not

require the approval of any federal official prior to its

legislation becoming effective, and the federal Indian

Housing legislation does not require such approval. See,

Kerr-McGee v. Navajo Tribe, 471 U.S. 195 (1985). However,

the HUD regulations require approval of tribal housing

ordinances notwithstanding this Court's ruling in Kerr-

McGee.

The District Court found that the Sac and Fox Nation

provides exclusive police protection, social services, and

food services to the inhabitants of this Housing Project,

and that law enforcement officers of the City of Shawnee

and Pottawatomie County treat this housing project as

Indian Country regardless of whether the Housing

Authority holds title to the land. The Court further found

that the Indian Health Service provides health care to the

inhabitants of the project, and that the Housing Authority

makes its payments in lieu of taxes pursuant to the fed-

eral regulations providing for such payment to the gov-

ernment having jurisdiction over the project to the Sac

and Fox Nation. The Court also found that the State of

Oklahoma does not appoint board members to the Hous-

ing Authority Board of Commissions, does not provide

services to the inhabitants of this housing project, and

does not appropriate funds for the Housing Authority of

the Sac and Fox Nation. After the enactment of the Sac

and Fox Housing Authority Act of 1983, but prior to

HUD approval thereof, the Housing Authority of the Sac

and Fox Nation conveyed all of its surface interests in the

house and land to the Lewis’. Subsequent to the trial of

this action, HUD finally approved the Sac and Fox Hous-

ing Authority Act of 1983.

2. The Proceedings Below.

The Lewis’ Petition was filed in the District Court on

December 7, 1990. The Housing Authority filed its motion

to dismiss on January 2, 1991 asserting that the “defen-

dant is a governmental agency of the Sac and Fox Nation

and is thereby cloaked with sovereign immunity barring

plaintiffs’ claims and thereby leaving the court without

subject matter or personal jurisdiction” and on the

grounds that “Jurisdiction over plaintiffs’ claims are

tribal in nature, and state court [sic] does not have juris-

diction to entertain the matter.” On the 21st day of Febru-

ary, 1991, an evidentiary hearing was held and argument

had upon the Motion to Dismiss. The motion to dismiss

was subsequently overruled and denied by order dated

May 3, 1991. See Appendix Page 47.

The objections to the trial court’s jurisdiction were

again raised at trial on October 29, 1991, and by Journal

Entry dated November 4, 1991 those objections were

overruled. Appendix Page 54. The jurisdictional issues

were raised in the Housing Authority’s Petition in Error

filed on Appeal to the Supreme Court of the State of

Oklahoma, and were determined adversely to the Hous-

ing Authority by that Court. Appendix Page 1. Rehearing

was denied on June 15, 1995.

REASONS FOR GRANTING THE WRIT

The Oklahoma courts’ reasoning is identical to that

previously disavowed by this Court:

[I]n a case over which the state would have

jurisdiction except for the fact that it occurred

within the boundaries of [Indian Country], it

would have such jurisdiction after admission of

the State to the Union except to the extent that

sole and exclusive power over the [Indian Coun-

try] in the federal government is expressly

reserved. Williams v. Lee, 83 Ariz. 241, 244, 319

P.2d 998, 1000 (1958). Reversed. Williams v. Lee,

358 U.S. 217 (1959).

Only that litigation which is explicitly with-

drawn by Congress or that which infringes upon

tribal self-government stands outside the

boundaries of permissible state-court cogni-

zance. Lewis v. Sac and Fox Housing Authority, 896

P.2d 503 (Okla. 1994) reh. den. June 15, 1995.

Justice STEVENS appears to embrace the oppo-

site presumption — that state laws apply on

Indian reservations absent an express congres-

sional statement to the contrary. But, as we

stated in White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 151, 100 S.Ct. 2578, 2587,

65 L.Ed.2d 665 (1980), in the context of an asser-

tion of state authority over the activities of non-

Indians within a reservation, “[t]hat is simply

not the law.” It is even less correct when applied

to the activities of tribes and tribal members

within reservations. California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 216 fn 18 (1987).

The Supreme Court of the State of Oklahoma has

rendered a decision which is in conflict with applicable

decisions of this Court by asserting that the Oklahoma

state courts have inherent and concurrent jurisdiction to

hear and determine contract actions between Indians and

tribal governmental agencies concerning title to land held

by the tribal agency unless they are ousted of their con-

current jurisdiction by a specific act of Congress. The

Oklahoma Supreme Court ignored the plain meaning of

the applicable decisions of this Court, such as Williams v.

Lee, 358 U.S. 217 (1959), California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987), and White Mountain

Apache Tribe v. Bracker, 448 U.S. 136 (1980); and Kennerly v.

District Court 400 U.S. 423 (1971), and the United States

Court of Appeals for the Tenth Circuit, Seneca-Cayuga

Tribe v. State ex rel. Thompson, 874 F.2d 709 (10th Cir. 1989)

which clearly hold that State Courts have no “residuary”

or “inherent” or “concurrent” jurisdiction over matters

affecting Indians in the Indian Country, and may exercise

jurisdiction over matters concerning Indians in the Indian

Country only with Congressional permission. Worcester v.

Georgia, 31 U.S. 515 (1832).

I. THE OKLAHOMA SUPREME COURT’S OPINION

CLAIMING INHERENT AND CONCURRENT

JURISDICTION OVER DISPUTES BETWEEN

INDIANS AND INDIAN HOUSING AUTHORITIES

IN THE ABSENCE OF SPECIFIC FEDERAL LEGIS-

LATION PROHIBITING SUCH JURISDICTION,

AND APPLYING STATE LAW THERETO, IS IN

CONFLICT WITH THE DECISIONS OF THIS

COURT AND THE FEDERAL APPELLATE COURTS.

The Supreme Court of the State of Oklahoma recast

the issues presented in this case to ask: “Has Congress

affirmatively ousted state courts of their concurrent juris-

diction to entertain contract actions involving land trans-

actions between Indian buyers and state-created housing

authorities?” (emphasis in the original) thereby ignoring

the factual findings of the state District Court which

determined that the Housing Authority of the Sac and

Fox Nation was in fact created by Sac and Fox resolution

SF-66-4 dated November 20, 1965, see findings 6 & 8,

Order dated May 3, 1991, Appendix at Page 49, and

turning the proper analysis of the issues on its head. The

Oklahoma Supreme Court went on to determine that state

courts could adjudicate controversies between Indians

and Indian Housing Authorities so long as Congress had

not affirmatively ousted the state of its “concurrent”

jurisdiction referring to this Court’s decisions in Yellow

Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990) and

Gulf Offshore v. Mobil Oil, 453 U.S. 473 (1981), two cases

which did not involve Indian law questions. As this

Court so eloquently stated in White Mountain Apache Tribe

v. Bracker, 448 U.S. 136 (1980), “[t]hat is simply not the

law.”

The Oklahoma Supreme Court announced the test it

was to apply in the following terms:

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. 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.

Lewis v. Sac and Fox Housing Authority, 896 P.2d 503 (Okla.

1994) reh. den. June 15, 1995. This statement of the appli-

cable law is irreconcilable with the decisions of this Court

which state repeatedly that states have authority over

matters concerning Indians within Indian Country only

via Congressional consent. If the Oklahoma Court's state-

ment of the law is correct, the Congressional adoption of

P.L. 83-280, and its amendments requiring tribal consent

to state court adjudicatory authority over the Tribe’s

Indian Country, 25 U.S.C. §§1322, 1326, is a vain and

useless act.

The position of the Oklahoma Supreme Court is also

inconsistent with those decisions of this Court and the

United States Court of Appeals for the Tenth Circuit

which require abstention in favor of tribal court deter-

minations of tribal court jurisdiction - including issues

regarding territorial or “Indian Country” jurisdiction.

National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845

(1985); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987);

Bank of Oklahoma v. Muscogee (Creek) Nation, 972 F.2d 1166

(10th Cir. 1992). Here the District Court took judicial

notice of the applicable laws of the Sac and Fox Nation,

yet the Supreme Court of Oklahoma simply refused to

consider them and applied Oklahoma law instead of

analyzing the tribal law and federal regulations to deter-

mine the rights of the participants in the MHO Agree-

ment. Simply stated, the Oklahoma Court is claiming

more authority over Indians than do the federal courts.

State courts, like federal courts, should be required to

abstain in such cases to allow the tribal courts to initially

consider these jurisdictional issues, with such determina-

tions subject to review in the federal courts. National

Farmers, supra.

Finally, it is inconceivable that the order of the

Supreme Court of Oklahoma requiring that a tribal

agency be divested of an interest in real property claimed

by the Tribe itself pursuant to its laws, and determining

the relationship between the Tribal Housing Authority

and the participants in its Indian programs funded by the

federal government does not interfere with tribal self-

government. The intrusion here is much more substantial

and direct than that struck down by this Court in Williams

v. Lee, supra and McClanahan v. Arizona Tax Commission,

411 U.S. 164 (1973) as the decision goes to the heart of the

Indian housing program and purports to determine the

rights of the participants vis-a-vis the Tribal Housing

Authority. This opinion of the Oklahoma Supreme Court

cannot be reconciled with the Indian law jurisprudence of

this Court, and should be corrected.

Il. THE OKLAHOMA SUPREME COURT’S OPINION

DETERMINING THAT THE HOME AT ISSUE

WAS NOT INDIAN COUNTRY BY VIRTUE OF ITS

ACQUISITION FROM FEE SIMPLE OWNERSHIP

BY THE HOUSING AUTHORITY AND THE DEED

TO THE PARTICIPANT IN CONTROVERSY IN

THIS CASE IS IN CONFLICT WITH THE DECI-

SIONS OF THIS COURT AND ADDRESSES AN

IMPORTANT ISSUE OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT.

The primary considerations in determining whether a

particular area is a Dependent Indian Community may be

enunciated as follows:

(1) “the nature of the area in question, the relationship

of the inhabitants of the area to Indian tribes and to the

federal government, and the established practice of gov-

ernment agencies toward the area,” .

(2) “whether such lands have been set apart for the use,

occupancy and protection of dependent Indian peoples,”

The state Courts ruled in this case that the land upon

which the Lewis’ home was built by the Housing Author-

ity of the Sac and Fox Nation was not Indian Country at

the time the raw land was initially acquired by the Hous-

ing Authority. Although neither the District Court nor the

Oklahoma Supreme Court specifically ruled on the issue,

the record is abundantly clear that the housing area in

which the Lewis’ home was built met the tests announced

by the federal courts to qualify as a Dependent Indian

Community pursuant to 18 U.S.C. §1151(b) after its acqui-

sition by the Housing Authority for the purpose of con-

structing homes for homeless Indians. United States v.

McGowan, 302 U.S. 535, 539 (1938); U.S. v. State of S.D.,

(8th Cir. 1981), 665 F.2d 837, certiorari denied 459 U.S.

823; United States v. Martine, 442 F.2d 1022, 1023 (10th Cir.

1971).

However, the Court went on to state that the same

deed which is at issue here (the conveyance to the Lewis’)

operated to terminate the Indian Country status of the

Lewis’ home and therefore vested jurisdiction in the State

Courts to adjudicate whether that deed was sufficient

under the Indian Housing Program conducted by the

Housing Authority of the Sac and Fox Nation. In so

doing, the Oklahoma Supreme Court has inserted a title

requirement into the determination of whether a particu-

lar area is a Dependent Indian Community, and has deter-

mined that a simple change in ownership of the property

from the Housing Authority to the Indian who was the

participant in the Housing Program for whom the home

was built destroyed the Indian Country character of the

land. There is simply no authority for this decision. A

reading of Section 1151 of Title 18 of the United States

Code indicated that Congress has determined that title to

property affects Indian Country only when 1151l(c) -

Indian allotments — are implicated. Title to the property is

not a statutory requirement for a determination that a

particular tract of land is within either a reservation or a

Dependent Indian Community.

Further, research has revealed no federal Court

authority determining how a Dependent Indian Commu-

nity is extinguished after it is established. The general

rule for reservation areas is that all tracts within the

reservation remain with the Indian Country until the

boundaries thereof are extinguished or modified by Con-

gress. This should be the rule with respect to Dependent

Indian Communities. Until Congress determines that

Indian Housing Authority projects should be extin-

guished as Indian Communities, they should retain their

character as Indian Country. Given the number of feder-

ally recognized tribes having significant housing author-

ity programs, this is an important issue which needs to be

resolved by this Court, because the issue of the Indian

Country status of such Projects will repeatedly arise as

the early Indian Housing projects are paid off and the

Properties conveyed to the Participants. It is critical that

the federal, tribal, and state governments have the guid-

ance of this Court with respect to the continued provision

of police, fire, and other governmental services to such

areas to avoid a flood of federal civil] rights and other

litigation based upon a claim of erroneous application of

governmental authority.

Iii. THE FAILURE OF THE OKLAHOMA SUPREME

COURT TO DISMISS ON SOVEREIGN IMMU-

NITY GROUNDS IS IN CONFLICT WITH THE

DECISIONS OF THIS COURT AND THE FED-

ERAL APPELLATE COURTS.

Counsel for Petitioners’ are aware that previous

counsel for the Housing Authority did not pursue the

issue of sovereign immunity in the Oklahoma Supreme

Court. However, neither the Housing Authority nor

counsel are empowered under tribal law to waive such

immunity as has been granted or preserved by the Sac

and Fox Nation pursuant to the Nation’s legislative

power. Therefore, Petitioner reasserts that sovereign

immunity, as articulated by this Court, required dismissal

of the state court action.

A basic tenet of Indian law is that Indian tribes

possess common law immunity from suit traditionally

attributed to sovereign and quasi-sovereign entities. See

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, (1978);

Puyallup Tribe, Inc. v. Washington Department of Game, 433

U.S. 165, 172-173, (1977); United States v. United States

Fidelity & Guaranty Co., 309 U.S. 506, 512, (1940).

Indian tribes in Oklahoma, including the Sac and Fox

Nation and its agencies, are immune from suit absent

express authorization from Congress or the tribal govern-

ment. United States v. United States Fidelity & Guaranty Co.,

309 U.S. 506 (1940), quoted in Santa Clara Pueblo v. Mar-

tinez, supra. This Court has repeatedly confirmed the

sovereign immunity of Indian tribes, bands, and nations.

* The defense of sovereign immunity goes to the sub-

ject matter jurisdiction of the Court since a sovereign is

immune from suit except as it consents to be sued, and

the terms of its consent to be sued in any court define

that Court’s jurisdiction to entertain the suit. United States

v. Mitchell, 445 U.S. 535, 538 (1980). Immunity from suit is

an attribute of sovereignty which may not be bartered

away, and a sovereign, even when it binds itself by con-

tract is under no obligation to provide a remedy through

any court. The withdrawal of all remedies is permissible

and has been sustained even though the sovereign had

waived its immunity by contract. Lynch v. United States,

292 U.S. 571, 581-582 (1934).

This Court has reaffirmed the sovereign immunity of

the Indian tribes in Oklahoma:

A doctrine of Indian tribal sovereign immunity

was originally enunciated by this Court, and has

been reaffirmed in a number of cases. (citations

omitted) Congress has always been at liberty to

dispense with such tribal immunity or to limit

it . . . Congress has consistently reiterated its

approval of the immunity doctrine. See, e.g.,

Indian Financing Act of 1974, 88 Stat. 77, 25

U.S.C. §1451 et seq., and the Indian Self-Deter-

mination and Education Assistance Act, 88 Stat.

2203, 25 U.S.C. §450 et seq. These Acts reflect

Congress’ desire to promote the “goal of Indian

self-government, including its ‘overriding goal’

of encouraging tribal self-sufficiency and eco-

nomic development.” California v. Cabazon Band

of Mission Indians, 480 U.S. 202, 216 (1987).

Under these circumstances, we are not disposed

to modify the long established principle of tribal

sovereign immunity.

Oklahoma Tax Commission v. Potawatomi Indian Tribe, 111

S.Ct. 905, 910 (1991).

As sovereign immunity goes to the core of a court’s

subject matter jurisdiction, sovereign immunity required

the Oklahoma Supreme Court to inquire as to whether it

had subject matter jurisdiction. “Want of consent is a

fundamental defect that may be asserted at any time, and

is not subject to estoppel.” Law of Federal Courts, p. 115,

Charles Wright (West Pub. Co., 1983). Since the Sac and

Fox Nation did not waive the Authority’s immunity in

state court, the matter should have been dismissed.

CONCLUSION

For the foregoing reasons the Petitioner respectfully

requests that this Court grant the Petition for a Writ of

Certiorari.

Respectfully submitted,

G. WiiuaM Rice, Esa.*

Sac AND Fox NATION

Grecory H. Bicter, Esa.

Rice & BIGLER

124 N. Cleveland

Cushing, Oklahoma 74023

(918) 225-4800

* Counsel of Record

App. 1

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

JOANN LEWIS and JAMES F.

LEWIS, Husband and Wife,

Plaintiffs-Appellees,

MARJORIE L. WOLF,

Plaintiff,

FOR OFFICIAL

PUBLICATION

THE SAC AND FOX TRIBE OF

)

) No. 78,825

)

OKLAHOMA HOUSING . (Filed

)

AUTHORITY, a/k/a THE Feb. 8, 1994)

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.

ON APPEAL FROM THE DISTRICT COURT,

POTTAWATOMIE COUNTY

Glenn Dale Carter, Judge

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 proportio-

nate share of the mineral revenues attributable to the

contested property.

App. 2

THE TRIAL COURT’S JUDGMENT IS AFFIRMED

L. Susan Work

Seminole, Oklahoma For Appellant

Douglas L. Combs

Shawnee, Oklahoma For Appellees

OPALA, J.

The two issues presented by this appeal are: [1] Has

Congress affirmatively ousted state courts of their con-

current jurisdiction to entertain contract actions involving

land transactions between Indian buyers and state-created

Indian housing authorities? and if not [2] 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 ANATOMY OF LITIGATION

The Sac and Fox Nation [Tribe] is a federally recog-

nized 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

1 Treaty at Fort Harmar, 7 Stat. 28; Oklahoma Tax Com’n v. Sac

and Fox Nation, 508 U.S. __, 113 S.Ct. 1985, 124 L.Ed.2d 30

(1993).

App. 3

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.°

This treaty allowed the Tribe to retain 800 acres. Within

the boundaries of that land, each tribal member had the

right to choose an allotment of one-quarter section. Con-

gress ratified the treaty in 1891.4

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 Devel-

opment [HUD] until 1962. It was then that HUD made the

program specifically available for Indian Country” and

promulgated regulations directly affecting the creation

and administration of Indian housing authorities [[HA].®

2 M. Wright, A Guide to the Indian Tribes of Oklahoma, 225-6

(1951).

3 The Dawes Act, also called the General Allotment Act, 24

Stat. 388, provided for allotting reservation land to individual

tribal members and purchasing the surplus for white settlers.

4 26 Stat. 750-751.

5 42 U.S.C. § 1437 (1988).

6 Staff of Senate Comm. on Interior and Insular Affairs,

94th Cong., 1st sess., Report on the Indian Housing Effort in the

United States with Selected Appendices 3 (Comm. Print 1975).

7 Id.; see also Mark K. Ulmer, The Legal Origin and Nature of

Indian Housing Authorities and the HUD Indian Housing Programs,

13 Am. INDIAN L. Rev. 109, 110 (1988).

8 24 C.ER. §§ 905.101-905.950 (1990).

App. 4

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!° which authorizes the creation of local IHAs

and makes them state agencies.11

In conformity with the Oklahoma Act the Housing

Authority of the Sac and Fox Tribe of Oklahoma [Author-

ity] was created in 1966.12 It provides low-income hous-

ing 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

9 24 C.F.R. §§ 905.125-26 (1991).

10 63 O.S.1981 §§ 1051 et seq.

‘! The pertinent terms of 63 O.S.1981 § 1057 provide that

IHAs established under the Oklahoma Housing Authorities Act

“shall be an agency of the State of Oklahoma, possessing all

powers, rights, and functions herein specified for city and

county authorities created pursuant to this act * * * .” (Emphasis

added.) ‘

12 By tribal resolution (SF-66-4) of November 20, 1965, the

Sac and Fox Tribe of Oklahoma authorized the Authority to '

conduct business and exercise powers pursuant to the Okla-

homa Housing Authorities Act, supra note 10.

13 Sac and Fox Housing Authority Act of 1983, Resolution

SF-83-25. Section 902 of this act allows the Authority to waive its

sovereign immunity and designates the tribal court as the forum

in which the hosing authority is to be sued. At the time of trial

HUD had not given a final agency approval for the 1983 Act.

eT EE A Ne ee Le ee oe a8 Bid n

App. 5

imposes no restriction on ownership. The property, which

is located in the city limits of Shawnee, Oklahoma, had origi-

nally been a Kickapoo Indian allotment.'4 The site was desig-

nated as housing Project 90-05.

The appellees, Joann and James F. Lewis [collectively

called Lewis], who are tribal members, entered on Decem-

ber 22, 1974 into a Mutual Help and Occupancy Agree-

ment [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

and (b) the project’s claim as a “dependent Indian

14 The property was later sold to a non-Indian owner. The

Authority acquired fee simple title from the land’s non-Indian owner,

who held it without any restrictions on Indian ownership.

15 On appeal the Authority abandoned its sovereign immu-

nity challenge, see infra note 59.

App. 6

community” within the definition of “Indian Country”.!6

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.!”

The Authority brings this appeal.

OUTSIDE THE FRAMEWORK OF PUBLIC LAW 83-280

THERE IS A “WINDOW OF OPPORTUNITY” FOR

STATES TO ADJUDICATE MIXED QUESTIONS OF

STATE/FEDERAL/TRIBAL LAW, WHEN THE

EXERCISE OF THEIR JURISDICTION DOES NOT

INFRINGE UPON TRIBAL SELF-GOVERNMENT

In 1953, Congress promulgated Public Law 83-280

[hereinafter PL-280] to provide a method for the states to

'¢ “Indian Country” includes “dependent Indian commu-

nities” defined in 18 U.S.C. § 1151 as follows:

“...(b) all dependent Indian communities within the

borders of the United States whether within the origi-

nal or subsequently acquired territory thereof, and

whether within or without the limits of a state... . ”

17 The scheduling order below indicates the cause was to be

reached for “trial by jury.” According to the pre-trial conference

order the parties had agreed to “waive the jury.” Since both

claims - that for specific performances as well as that for

accounting — are of equitable cognizance, the “waiver” does not

appear to have been necessary. McCraw v. Richardson., Okl.,

459 P.2d 620, 623 (1969) (specific performance); Fleet v. San-

guine, Ltd., Okl., 854 P.2d 892, 896 n. 17 (1993) (equitable

accounting).

App. 7

assume criminal and/or civil jurisdiction over “Indian

Country”.!® As originally proposed, PL-280 allowed

states to assume cognizance without the consent of an

affected tribe.19 As part of the Civil Rights Act of 1968.7°

Congress amended PL-280 to require that the state take

some affirmative action when opting to extend its juris-

diction to Indian Country.2! A state may assert cogni-

zance over Indian Country only if the enrolled Indians

have given their consent by tribal referendum.”

The U.S. Supreme Court has continued to emphasize

the congressional policy of fostering tribal autonomy as a

18 “Indian Country” refers to a broad definition found in 18

U.S.C. § 1151, supra note 16, which includes “formal and infor-

mal reservations, dependent Indian communities, and Indian

allotments, whether restricted or held in trust by the United

States.” Sac and Fox Nation, supra note 1. Although § 1151 defines

Indian Country for application to the exercise of federal crimi-

nal jurisdiction, its terms extend to civil jurisdiction as well.

Indian Country, U.S.A. v. Oklahoma Tax Com’n, 829 F.2d 967,

973 (10th Cir. 1987) (citing California v. Cabazon Band of Mis-

sion Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087 n. 5, 94

L.Ed.2d 244 (1987)).

19 State ex rel. May v. Seneca-Cayuga Tribe, Okl., 711 P.2d

77, 86 (1985).

20 25 U.S.C. §§ 1321 et seq.

21 Because 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. Ahboah v. Housing Authority of Kiowa Tribes,

Okl., 660 P.2d 625, 629 n. 19 (1983).

22 “Indian Civil Rights Act of 1968”, Act of April 11, 1968,

PL 90-284, 82 Stat. 77 (codified as amended at 25 U.S.C. §§ 1301,

1302, and 1303 (1982)).

App. 8

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 con-

current state jurisdiction over Indian Country. There, two

members 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

Kennerly, which relies upon the teachings of Williams

v. Lee?® 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

23 South Dakota v. Bourland, 508 U.S. __, 113 S.Ct. 2309,

2319, 124 L.Ed.2d 606 (1993); Ramah Navajo School Board, Inc.

v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838, 102 S.Ct.

3394, 3398, 73 L.Ed.2d 1174 (1982); Montana v. United States, 450

U.S. 544, 564, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981); White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-145, 100

S.Ct. 2578, 2583-2584, 65 L.Ed.2d 665 (1980).

24 Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27

L.Ed.2d 507 (1971) (per curiam).

25 Kennerly, supra note 24, 400 U.S. at 425, 91 S.Ct. at 482.

26 Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251

(1959). |

27 Williams, supra note 26, 358 U.S. at 220, 79 S.Ct. at 271.

App. 9

procedural mechanisms by which tribal consent must be

registered.”28

Another case from Montana, Fisher v. District Court,29

stressed the overriding congressional policy of fostering

tribal self-government.*° 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 teach-

ings 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-govern-

ment, there can be no barrier to state cognizance.

{

28 Kennerly, supra note 24, 400 U.S. at 430, 91 S.Ct. at 483. If

states can only assume civil jurisdiction by complying with the

terms of PL-280, Indian tribes must choose between exclusive

state court jurisdiction and exclusive tribal court jurisdiction.

Id., 400 U.S. at 431, 91 S.Ct. at 485 (Stewart, J., dissenting).

29 Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47

L.Ed.2d 106 (1976) (per curiam). In Fisher the custodians of an

Indian child commenced an adoption proceeding in state court.

Relying on a federal statute, 25 U.S.C. § 372a, the Montana

Supreme Court recognized concurrent state and tribal jurisdic-

tion over adoption of Indians. The Court pronounced that state-

court cognizance infringed upon tribal self-government and

held Montana divested of her concurrent jurisdiction.

30 Id., 424 U.S. at 388, 96 S.Ct. at 947.

31 Fisher, supra note 29; Williams, supra note 26.

App. 10

The U.S. Supreme Court's jurisprudence clearly sup-

ports the notion that not every controversy affecting

Indians and their lands lies outside state-court jurisdic-

tion.32 In Oklahoma Tax Commission v. Graham the Court

held recently that a trial sovereign immunity counter-

claim, pressed in a state-court suit to enforce a tax assess-

ment 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*4 the Court similarly held that unless

pre-empted by federal law, New Mexico can tax on-reser-

vation production of oil and gas by non-Indian lessees.*°

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.%

32 See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S.

163, 175, 109 S.Ct. 1698, 1707, 104 L.Ed.2d 209 (1989); Oklahoma

Tax Commission v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 1521,

103 L.Ed.2d 924 (1989) (per curiam).

33 Supra note 32.

34 Supra note 32.

35 See discussion of the distinction between federal pre-

emption concept and the congressional ouster-of-jurisdiction

doctrine in Part III(A), infra. ?

36 For a case where a court failed to take into consideration

the character of relationship which would confer state-court

cognizance, see State ex rel. Joseph v. Redwing, 429 N.W.2d 49

(S.D. 1985) cert. denied, 490 U.S. 1069, 109 S.Ct. 2071, 104 L.Ed.2d

636 (1989). There a court held it had subject matter jurisdiction

to establish the amount of and to enforce a child support obliga-

tion, even though a tribal court had dissolved the Indian mar-

riage and ordered the father to pay child support (apparently

without setting the quantum of obligation).

App. 11

Only that litigation which is explicitly withdrawn by

Congress or that which infringes upon tribal self-govern-

ment stands outside the boundaries of permissible state-

court cognizance. With this test in mind, we revisit today

extant Oklahoma jurisprudence on the constitutional

state/federal allocation of judicature.%”

In Housing Authority of the Seminole Nation v. Harjo,°*

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 in excessive self-

abnegation of power and a wholesale retreat from judica-

ture that does not accord with the constitutional princi-

ples we analyze and explain today in Part III, infra.

37 Ahboah, supra note 21; Housing Authority of the Seminole

Nation v. Harjo, Okl., 790 P.2d 1098 (1990).

38 Supra note 37. Relying upon a mechanical analysis of

“Indian Country,” Harjo holds that an Oklahoma court has no

authority to adjudicate a forcible entry and detainer action aris-

ing from tenancy in Indian Country.

39 Supra note 21. Ahboah holds that a state court cannot

entertain jurisdiction over a forcible entry and detainer pro-

ceeding against the beneficial owner of a trust allotment in lands

located within Indian Country.

App. 12

ITI.

OUSTER OF STATE-COURT JURISDICTION

Under This Nation’s Dual Sovereignty Scheme

And Dual Court System, State Courts Lose Their

Concurrent Jurisdiction Only When Ousted

By An Explicit Congressional Directive

The Authority asserts that state courts have no juris-

diction over contract actions involving lands in Indian

Country, regardless of the property’s status when the sale

took place. For this principle the Authority relies on

Oklahoma jurisprudence, Ahboah® and Harjo.41 We now

reject the notion of an all-inclusive congressional ouster

as an incorrect exposition of the pertinent constitutional

principles.

Our specific task today calls for an inquiry into

whether Oklahoma courts stand ousted of their concurrent

jurisdiction over this contract action by Indian plaintiffs

against a state-created IHA. Under our system of federal-

ism, a state’s sovereignty is concurrent with that of the

federal government, subject only to limitations imposed

by the Supremacy Clause.*? Yellow Freight System, Inc. v.

40 Supra note 21.

41 Supra note 37.

42 Art. 6, cl. 2, U.S. Const. Justice Scalia discusses the con-

stitutional underpinnings for the dual sovereignty concept in

his concurring opinion in Tafflin v. Levitt, 493 U.S. 455, 469, 110

S.Ct. 792, 800-801 (1990), where he says:

“State courts have jurisdiction over federal causes of

action not because it is ‘conferred’ upon them by the

Congress; nor even because their inherent powers

App. 13

Donnelly® teaches that “state courts have inherent

authority, and are thus presumptively competent, to adju-

dicate claims arising under the laws of the United

States.”** “To give federal courts exclusive jurisdiction

permit them to entertain transitory causes of action

arising under the laws of foreign sovereigns, see, ¢.g.,

McKenna v. Fisk, 1 How. 241, 247-249, 11 L.Ed. 117

(1843); but because ‘[t]he laws of the United States are

laws in the several States, and just as much binding

on the citizens and courts thereof as the State laws

are. ... The two together form one system of jurispru-

dence, which constitutes the law of the land for the

State’ and the courts of the two jurisdictions are not

foreign to each other. .. .” Claflin v. Houseman, 93 U.S.

130, 136-137, 23 L.Ed. 833 (1876); see also Minneapolis

& St. Louis R. Co. v. Bombolis, 241 U.S. 211, 221-223, 36

S.Ct. 595, 598-599, 60 L.Ed. 961 (1916).

It therefore takes an affirmative act of power

under the Supremacy Clause to oust the States of

jurisdiction — an exercise of what one of our earliest

cases referred to as ‘the power of congress to with-

draw’ federal claims from state-court jurisdiction.

Houston v. Moore, 5 Wheat. 1, 26, 5 L.Ed. 19 (1820)

(emphasis added). See also Bombolis, supra, 241 U.S.,

at 221, 36 S.Ct., at 598 (concurrent jurisdiction exists

‘unless excepted by express constitutional limitation

or by valid legislation’); Missouri ex rel. St. Louis, B. &

M.R. Co. v. Taylor, 266 U.S. 200, 208, 45 S.Ct. 47, 48, 69

L.Ed. 247 (1924) (‘As [Congress] made no provision

concerning the remedy, the federal and the state

courts have concurrent jurisdiction’).”

43 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990).

44 Yellow Freight, supra note 43, 494 U.S. at __, 110 S.Ct. at

1568 (quoting from Tafflin, supra note 42, 493 U.S. at 458-460, 110

S.Ct. at 795, and citing Claflin v. Houseman, 93 U.S. 130,

136-137, 23 L.Ed. 833 (1876), and Gulf Offshore Co. v. Mobil Oil

Corp., 453 U.S. 473, 477-478, 101 S.Ct. 2870, 2874-2875, 69

App. 14

over a federal cause of action, Congress must, in an

exercise of its powers under the Supremacy Clause, affir-

matively divest state courts of their presumptively con-

current jurisdiction.”*5 In Gulf Offshore v. Mobil Oil the

Court identified three different methods by which a con-

gressional state-court ouster may be effected** — (1) by an

explicit statutory directive,4” (2) by unmistakable implication

L.Ed.2d 784 (1981). See also Houston v. Moore, 5 Wheat. 1, 25-26, 5

L.Ed. 19 (1820); Plaquemines Tropical Fruit Co. v. Henderson,

170 U.S. 511, 517, 18 S.Ct. 685, 688, 42 L.Ed. 1136 (1898); Charles

Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508, 82 S.Ct. 519,

522-523, 7 L.Ed.2d 483 (1962).

45 Yellow Freight, supra note 43, 494 U.S. at __, 110 S.Ct. at

1568 (quoting from Tafflin, supra note 42, 493 U.S. at 458-460, 110

S.Ct. at 795). “This deeply rooted presumption in favor of con-

current state court jurisdiction is . . . rebutted if Congress affirma-

tively ousts the state courts of jurisdiction over a particular federal

claim.” Tafflin, supra note 42, 493 U.S. at ___, 110 S.Ct. 792 at 795.

Gulf Offshore, supra note 44, teaches that “[i]n considering the

propriety of state-court jurisdiction over any particular federal

claim, the Court begins with the presumption that state courts

enjoy concurrent jurisdiction. Congress, however, may confine

jurisdiction to the federal courts either explicitly or implicitly.”

Id., 453 U.S. at 478, 101 S.Ct. at 2875 (emphasis added).

46 Gulf Offshore, supra note 44, 453 U.S. at 478, 101 S.Ct. at

2875; Tafflin, supra note 42, 493 U.S. at 458-460, 110 S.Ct. at 795.

The Court has suggested that the factors identified in Gulf Off-

shore, supra note 44, are the sole means of resolving a claim to

exclusive federal-court jurisdiction. See Hathorn v. Lovorn, 457

U.S. 255, 266, 102 S.Ct. 2421, 2428, 72 L.Ed.2d 824 (1982)

(“Only . . . [the Gulf Offshore factors] will rebut the presumption

[of concurrent jurisdiction]”).

47 In Tafflin, supra note 42, Justice Scalia observes that “{i]n

the standard fields of exclusive federal jurisdiction, the govern-

ing statutes specifically recite that suit may be brought ‘only’ in

federal court, Investment Company Act of 1940, as amended, 84

App. 15

from legislative history, or (3) by a clear incompatibility

between state-court jurisdiction and federal interests.*®

The constitutional ouster-of-jurisdiction doctrine is

not to be confused with federal preemption. Preemption

occurs when federal law displaces a body of state law on

the same subject. Unlike state-court ouster, which

Stat. 1429, 15 U.S.C. § 80a-35(b)(5); that the jurisdiction of the

federal courts shall be ‘exclusive,’ Securities Exchange Act of

1934, as amended, 48 Stat. 902, 15 U.S.C. § 78aa; Natural Gas Act

of 1938, 52 Stat. 833, 15 U.S.C. § 717u; Employee Retirement

Income Security Act of 1974, 88 Stat. 892, 29 U.S.C. § 1132(e)(1);

or indeed even that the jurisdiction of the federal courts shall be

‘exclusive of the courts of the States,’ 18 U.S.C. § 3231 (criminal

cases); 28 U.S.C. §§ 1333 (admiralty, maritime and prize cases),

1334 (bankruptcy cases), 1338 (patent, plant variety protection,

and copyright cases), 1351 (actions against consuls or vice con-

suls of foreign states), 1355 (actions for recovery or enforcement

of fine, penalty, or forfeiture incurred under Act of Congress),

1356 (seizures on land or water not within admiralty and mar-

itime jurisdiction).” Id., 493 U.S. at 469, 110 S.Ct. at 801-802

(Scalia, J., concurring).

48 Justice Scalia observes in Tafflin, supra note 42, that:

“It is perhaps also true that implied preclusion can be

established by the fact that a statute expressly men-

tions only federal courts, plus the fact that state-court

jurisdiction would plainly disrupt the statutory

scheme. That is conceivably what was meant by the

third part of the Gulf Offshore dictum, ‘clear incom-

patibility between state-court jurisdiction and federal

interests.’ . . . If the phrase is interpreted more

broadly than that, however - if it is taken to assert

some power on the part of this Court to exclude state-

court jurisdiction when systemic federal interests

make it undesirable — it has absolutely no foundation

in our precedent.” Id., 493 U.S. at ___, 110 S.Ct. at 801

(Scalia, J., concurring).

App. 16

requires that we examine the law for the presence of an

“explicit statutory directive” conferring exclusive federal-

court jurisdiction, preemption is a matter of congressional

intent,4° which may be effected even by regulations of a

federal agency acting within the scope of congressionally

delegated authority.5° Preemption alone cannot divest state

courts of jurisdiction to entertain federal-law claims.

Because Ahboah*! and Harjo52 both failed to take into

account the constitutional underpinnings for the concur-

rent state-court jurisdiction analysis, we may today reas-

sess the nisi prius cognizance of the present cause free

from the binding force of precedential restraint. It is

fitting for us to revisit here the congressional ouster

notions and infuse our law with Yellow Freight’s teaching

that a state court has constitutionally invested authority over

any claim or issue affected or regulated by federal law, which is

* Pre-emption may occur in four distinct instances: (1) by

express statutory language; (2) by a pervasive regulatory

scheme which infers the presence of congressional intent that

the federal regulation did not need supplemental state-law pro-

visions; (3) when an actual conflict between state and federal

laws makes it impossible to comply with both; or (4) where the

objectives and purposes of Congress are thwarted by state law.

Todd v. Frank’s Tong Service, Inc., Ok., 784 P.2d 47, 49 (1989);

Missouri-Kansas-Texas R. Co. v. State, Okl., 712 P.2d 40, 47

(1985).

5° City of New York v. F.C.C., 486 U.S. 57, 64, 108 S.Ct. 1637,

1642, 100 L.Ed.2d 48 (1988); Fidelity Federal Sav. & Loan Ass’n

v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d

664, 675 (1982).

51 Ahboah, supra note 21.

52 Harjo, supra note 37.

App. 17

not expressly withheld from its jurisdiction by an act of Con-

gress.

The Authority has directed our attention to the 1937

Act,5> but we find nothing in that enactment which

would suggest that Congress has, by some explicit statu-

tory directive, ousted the state courts of cognizance over

contract disputes between state-created IHAs and their Indian

project participants. The 1937 Act clearly authorizes the

establishment of IHAs in conformity to state law for the

purpose of providing low-income housing projects for

Indians.** Nor are we aware of any legislative history that

Congress by “unmistakable implication” intended to

assign IHA-spawned disputes with Indian purchasers

only to federal courts.55 We next inquire into whether

“state-court jurisdiction over Indians or activities on

Indian lands would interfere with tribal sovereignty and self-

government.”5* In those instances, the Court advises, “the

state courts are generally divested of jurisdiction as a matter

of federal law.”57 Although in its petition in error the

53 For a discussion of the 1937 Act, see supra note 5 and

accompanying text.

54 The terms of 24 C.F.R. § 905.125(1990) are:

“An IHA may be established pursuant to a State law

that provides for the establishment of IHAs with all

necessary legal powers to carry out low-income hous-

ing projects for Indians.”

55 Gulf Offshore, supra note 44, 453 U.S. at 478, 101 S.Ct. at

2875.

56 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107 S.Ct.

971, 976, 94 L.Ed.2d 10 (1987) (citing Fisher, supra note 29, and

Williams, supra note 26).

57 LaPlante, supra note 56, 480 U.S. at 15, 107 S.Ct. at 976.

App. 18

Authority relied for reversal on sovereign immunity of

the Tribe, it has not argued that issue on appeal.°® In fact,

the Authority’s reply brief informs us that its challenge

on that point has been abandoned.°?

Because the Authority has failed to overcome the U.S.

Constitution’s presumption that state courts have juris-

diction, concurrent with federal courts, to hear claims

arising under the 1937 Act, we affirm the trial court’s

ruling that upholds its subject matter cognizance over

these Indian purchasers’ claim to title. Today’s

58 Claims to error for which there is no support in argument

and authority are deemed abandoned. Hadnot v. Shaw, Okl. 826

F.2d 978. 981 (1992); Hobert v. Echeverria, Okl. 744 F.2d 960. 962

n. 4 (1987; Peters v. Golden Oil Co., 600 P.2d 330, 331 (1979);

Harley v. Jose, 207 Okl. 296, 249 P.2d 468, 469 (1952).

5° The Authority states that all issues relating to the sover-

eign immunity of the Tribe were abandoned because of the

“confusion in the record” concerning its status as a tribal

agency. The Authority explains that HUD failed to recognize it as an

agency operating under tribal rather than state law.

By its mid-appeal brief the Authority informs this court that

HUD had approved its 1993 amendment of the 1983 Sac and Fox

Indian Housing Authority Act. According to the Authority, the

1993 version provides that the Authority shall be an agency of the

Sac and Fox Nation of Oklahoma having the purposes, powers

and duties . . . as established by law,” (Emphasis added.) This

change, the Authority urges, supports its argument that the

contested property lies in Indian Country and that its reserva-

tion of the mineral interest accords with applicable federal law

and regulations. As we view the mid-appeal development it has

no legal effect on the rights in contest. State-court jurisdiction

attached to this claim at the time it first came before the court.

Amarex, Inc. v. Sell, Okl., 566 P.2d 456, 459 (1977); Jones Drilling

Company v. Woodson, Okl., 509 P.2d 116, 118 (1973).

App. 19

pronouncement is not to be understood as a broad decla-

ration that all litigation of Indian rights lies within the

inherent constitutional cognizance of Oklahoma state

courts. We only hold that, when measured by the Gulf Off-

shore analysis, state-court settlement of this controversy does

not contravene any federal policy, either constitutional or

statutory.

THE DOCUMENT IN CONTEST - THE

PARTIES’ MHO AGREEMENT - IS A CONTRACT

TO CONVEY THE ENTIRE FEE UPON

FULL PERFORMANCE OF ITS TERMS

The Oklahoma Law of Conveyancing, Rather Than Tribal

Law, Governs The Settlement Of This Dispute

The Authority requested that the trial court take judi-

cial notice™ of four tribal laws which had been filed with

its pre-trial brief.°! Pertinent here is a 1987 amendment to

60 Taking judicial notice means only that we may dispense

with proof of some norm of state and federal law - common,

constitutional, or statutory law — of which the court may be

advised sans proof. The terms of 12 O.S.1991 § 2201(A) require

us to take “judicial notice” of law that is invoked in the adversary

process. The terms of § 2201(A) are:

“Judicial notice shall be taken by the court of the

common law, constitutions and public statutes in

force in every state, territory and jurisdiction of the

United States.”

61 Those laws are: (1) Sac and Fox Resolution 66-4, which

creates the Housing Authority; (2) Sac and Fox Housing Author-

ity Act of 1983, which designates the Authority as “an agency”

App. 20

the 1983 Sac and Fox Housing Authority Act. The 1987

law requires the Authority to retain title to any mineral

interest acquired by it in fee simple and to deposit all

revenues and proceeds derived from that interest into

special account for tribe-related purposes.®? The Authority

of the Sac and Fox Tribe; (3) Sac and Fox Resolution 86-51, which

relates to judicial resolution of disputes involving the Housing

Authority; and (4) Sac and Fox Resolution 87-75, which adds

§ 306 to the 1983 Sac and Fox Housing Authority Act.

62 The 1987 tribal resolution adds § 306 to the Sac and Fox

Housing Authority Act as established January 21, 1983. Lewis

did not object below to nisi prius notice of the 1987 resolution,

which the Authority had attached to its pre-trial brief. The

pertinent terms of § 306 are:

“MINERAL INTERESTS IN REAL PROPERTY

(a) Title to any mineral interests, including oil and

gas interest, acquired by the Authority, in fee simple,

due to its acquisition of real property by purchase,

gift, or otherwise is hereby declared to be and is

severed and vested in the Housing Authority of the

Sac and Fox Tribe of Indians of Oklahoma, and the

Authority shall make such its conveyances of real

property in such form as may be necessary to clarify

such severance and vesting of title in the record.”

* » *

mineral interest shall be deposited in a special

account maintained by the authority for the following

purposes:

(1) operational expenses of the Housing

Authority, or

(2) improvements or additions, including

repairs, to existing projects,

(3) construction or acquisition of new projects.

(d) A conveyance of mineral interests other than as

authorized in Subsection (b) of this section may be

App. 21

asserts that its construction of the MHO Agreement® - as

calling for a conveyance of a surface estate to Lewis and

for the mineral interest’s reservation by the Authority — is

in compliance with the 1987 tribal law.

One who asserts that a law different from that of

Oklahoma governs the dispute bears the burden of iden-

tifying and invoking that other law. Unless foreign law is

invoked, Oklahoma’s domestic law will be deemed to

govern. We agree with the trial court and hold that the

Oklahoma contract law and that of conveyancing, rather than

tribal law, is applicable to this claim by the Indian purchasers.

The trial court ruled that (1) when Lewis entered into the

1974 MHO Agreement the project land was not situated

within a dependent Indian community and was not other-

wise constituted as Indian Country, and (2) the MHO

Agreement was executed before the Tribe reorganized the

Authority in 1983 as a tribal agency.® Both at the time of

the property’s tribal acquisition as well as of the Lewis con-

tract’s execution, the Authority was operating as a state

agency under the Oklahoma Housing Authorities Act.®© The

Sac and Fax law, which had initially created the Tribe's Hous-

ing Authority under the state act, had neither been repealed

made only with the consent of the Sac and Fox Busi-

ness Committee. *** ”

63 For a discussion of the Lewis/Authority MHO Agree-

ment, see Part I, supra.

64 Benham v. Keller, Okl. 673 P.2d 152, 153 (1983).

65 According to the authority Director, HUD approval is not

required to infuse validity into tribal housing laws; it is only

necessary to receive funding.

66 Supra note 11.

App. 22

nor revoked. It stood in full force and effect when the property

was acquired by the Indian housing agency and when it was

sold to Lewis.

In short, when the parties entered into the MHO

Agreement, the project area involved was not, as the trial

court correctly ruled, a “dependent Indian community”.°

Neither was the project site Indian Country when the

Authority conveyed the premises to Lewis. We hence

hold that for the reasons further explained later in this

opinion, state contract law and that of conveyancing,

rather than tribal law, is applicable to the MHO Agree-

ment, in contest and to the title claim of these Indian

purchasers.

When construing the phrase dependent Indian commu-

nity, the U.S. Court of Appeals for the Tenth Circuit must

take into account “the nature of the area in question, the

relationship of the inhabitant of the area to Indian tribes,

and to the federal government, and the established prac-

tice of government agencies toward the area.”® A more

elaborate set of factors was identified by the Eighth Cir-

cuit in United States v. South Dakota®? ~ i.e., (1) whether

the United States has retained “title to the lands which it

permits the Indians to occupy” and authority to enact

regulations and protective laws respecting this territory;

(2) the nature of the area in question, the relationship of

67 For the definition of “dependent Indian community”, see

18 U.S.C. § 1151(b), supra note 16.

68 United States v. Martine, 442 F.2d 1022, 1023 (10th Cir.

1971).

69 665 F.2d 837 (8th Cir. 1981), cert. denied, 459 U.S. 823, 103

S.Ct. 52, 74 L.Ed.2d 58 (1982).

App. 23

the inhabitants of the area to Indian tribes and to the

federal government, and the established practice of gov-

ernment agencies toward the area; (3) whether there is an

element of cohesiveness manifested either by economic

pursuits in the area, common interests, or needs of the

inhabitants as supplied by that locality; and (4) whether

such lands have been set apart for the use, occupancy and

protection of dependent Indian Peoples.”° The ultimate test

is whether the land is set apart for the use of Indians under the

superintendence of the federal government.”!

The trial court concluded that the property in contest

was not an independent Indian community when the contract

was executed in 1974. This is so because at that time the

provisions of tribal health, police, social and food services were

not in effect. We agree with the trial court’s analysis and

its reasoning. When title passed from the Authority to Lewis,

the property was not Indian Country. As this point HUD’s

oversight (via its extensive federal regulations of MHO

programs) came to an end. Lewis had performed all the

obligations imposed by the MHO Agreement when the

Authority executed its warranty deed. Because we can

find no basis for applying tribal law to this dispute, we

proceed to construe these Indian purchasers’ rights in

accordance with Oklahoma law.

70 South Dakota, supra note 69 at 841-843.

71 United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396,

399, 58 L.Fd. 676 (1914).

App. 24

Rules for Construing A Contract To

Convey Real Property

Whether a contract is ambiguous so as to require

extrinsic evidence to clarify the doubt is a question of law

for the courts.72 If language of a contract is clear and free

of ambiguity, the court is to interpret it as a matter of

law.73

At the conclusion of the trial, the nisi prius court

informed the parties that the controlling legal issue was

whether the definition of the critical word “grounds”

(inserted into the MHO Agreement) includes a mineral

interest.74 The court directed the parties to submit post-

trial briefs. Neither Lewis nor the Authority objected to

briefing this issue as one of law, either at trial or in their

post-trial submissions. By their conduct the parties

clearly manifested a desire to have the contract terms

interpreted as a matter of law, rather than in the light of

some intent to be gathered from extraneous evidence and

circumstances. The contract’s meaning tendered to the

72 Cook v. Oklahoma Bd. of Public Affairs, Okl., 736 P.2d

140, 145 (1987); Mercury Inv. Co. v. FW. Woolworth Co., Okl.,

706 P.2d 523, 529 (1985); Ollie v. Rainbolt, Okl., 669 P.2d 275, 279

(1983); Farrell Const. Co., Inc. v. Russell Creek Coal Co., OKl.,

645 P.2d 1005, 1007 (1982).

73 Mercury, supra note 72 at 529.

74 The trial judge asked the lawyers to tell him whether the

word “grounds” is “a legal synonym for the term ‘real estate’ or

‘real property’,” or whether it “has a restricted meaning”.

App. 25

trial court was to be divined from the four corners of the

instrument.75

A contract must be considered as a whole so as to

give effect to all its provisions without narrowly concen-

trating upon some clause or language taken out of con-

text.7° The language in a contract is given its plain and

ordinary meaning unless some technical term is used in a

manner intended to convey a specific technical concept.77 The

parol evidence rule teaches that unless fraud or mistake

is involved, pre-contract negotiations and oral discus-

sions are merged into, and superseded by, the terms of an

executed writing.”® The practical construction of an agree-

ment (to be derived from the acts and conduct of the

parties) is an available tool only in case ambiguity

appears to be present. Where, as here, a contract is complete

75 For our statutory rules for the construction of contracts,

see 15 O.S. 1991 §§ 151-157. The terms of § 153 are:

“For the purpose of ascertaining the intention of the

parties to a contract, if otherwise doubtful, the rules

given in this chapter are to be applied.”

76 15 O.S.1991 § 157; Mercury, supra note 72 at 529.

77 15 O.S.1991 § 160; Mercury, supra note 72 at 529.

78 15 O.S. 1991 §§ 137, 155; Mercury, supra note 72 at 529.

Under the terms of § 137, referred to generally as the parol

evidence rule, testimonial evidence may be admissible to vary

or contradict the terms of a written contract when fraud, acci-

dent or mistake is relied upon for relief from the binding effect

of a contract. Snow v. Winn, Okl., 607 P.2d 678, 682 (1980);

Dewberry v. Yellow Manufacturing Acceptance Corp., Okl., 396

P.2d 522, 524 (1964); Lone Star Gas Company v. Oakman, OKl.,

283 P.2d 810, 813-814 (1955). Here, the parties have not relied

upon fraud, accident or mistake to vary the written terms of the

document.

App. 26

in itself and, when viewed as a totality, is unambiguous, its

language is the only legitimate evidence of what the parties

intended. That intention cannot be determined from the sur-

rounding circumstances, but must be gathered from a four-

corners’ examination of the instrument. Because the parties

proceeded on the premise the issue before the court was

one of law, and nowhere interposed an objection to that

notion, we hold them bound by their nisi prius positional

commitment.

Cc.

The Term “Grounds” In The MHO Agreement Includes

Both The Surface and Mineral Estate

The Authority asserts that from a four-corners’ exam-

ination of the MHO Agreement it is apparent there was to

be a severance of the surface and mineral estates upon

the completion of the contract’s terms. The critical terms,

relied on by the Authority, provide that when the pur-

chasers have paid back all Authority-borrowed money,

“the Authority will convey to the Participant all of its

interest in his house and grounds.” The term “grounds”,

when considered in the context of the entire MHO Agree-

ment, the Authority argues, calls for conveying to Lewis

but a surface estate while reserving the mineral interest in

the grantor. In support of its contention that the word

“grounds” is one of limitation, the Authority directs us to

App. 27

several dictionary definitions of the term.7”? We find these

sources unpersuasive.®

Lewis argue that the general use of the word grounds

is not limited to the appurtenances and the surface sur-

rounding the house. They assert that the contract phrase

- “will convey all of its interest in his house and grounds”

— means that the Authority was to retain no interest in the

property. They rely on an early Pennsylvania case in

79 The Authority directs us to the definition of the terms

grounds in (1) Wesster’s SeventH New Co.teciate DicTIONARY

(1967) — “a surrounding area... the surface of the earth. . . the

area around and belonging to a house or other building; (2)

Wesster’s THirp New INTERNATIONAL Dictionary at 1002 (1961) -

“the gardens, lawn, and planted areas immediately surrounding

and belonging to a house or other building; and (3) Biack’s Law

Dictionary (4th Ed. 1951) - “soil; earth; the earth’s surface

appropriated to private use and under cultivation or susceptible

of cultivation. Though this term is sometimes used as equivalent

to ‘land,’ it is properly of a more limited signification, because it

applies strictly only to the surface and always means dry land.

See Wood v. Carter, 70 Ill.App. 218; State v. Jersey City, 25 N.J.L.

529; Com. v. Roxbury, 9 Gray, Mass., 491”. The Authority asserts

that other reference materials demonstrate that the term

“ground” does not include minerals, citing Wesster’s COLLEGIATE

THesaurus at 390, Wesster’s New Dictionary oF SyNONYMs at 384

and Wiis C. Burton, Lecat THesaurus at 243 and 915.

8° Our research reveals that some legal reference materials

include the word “ground” in the same grouping as land or real

property. See, e.g., (1) Rocets INTERNATIONAL THeEsAuRUS, 4th Ed.

(1977) at 286 (land) - “land, ground, earth. . . . real estate, real

property ...”; (2) J.I. Ropate, THe SyNonyo Finper (1978) at 475 -

“ground, n. 1. ... Archaic,... land...” 2. grounds

... property ...”; (3) WrtitaM C. Burton, Lecac THesaurus (1980)

at 741 - “ground . . . property (land) ..., grounds... estate

(property) ... property (land)....”

App. 28

which the court held the word ground was synonymous

with lands.8!

Grounds is not a common-law term of art in the law of

real property. Unlike the noun “surface”,82 the word

“ground” has no defined meaning in the body of Okla-

homa’s common law. Within the context of the MHO

Agreement, we treat the latter term as synonymous with

land. In its general sense, land includes not only the face

of the earth, but everything of a permanent nature under

or over it. In this sense, it embraces both the surface of

the earth and minerals, oil and gas found below the

earth’s face.83 Land is defined by our statute as “the solid

81 In Feree v. Sixth Ward School Dist. of Allegheny, 76 Penn.

376, 378 (1874), the court held the word “ground” in a 1867 act

was synonymous with the word “lands”. This construction of

the noun “ground” enabled a school district to enter upon an

improved town lot to erect a school-house building.

82 Mac Oil Company v. Laurance, Okl., 389 P.2d 955, 960

(1964); Reidt v. Rock Island Improvement Company, Okl., 521

P.2d 79, 83 (1974). In Reidt the court noted that the term “sur-

face”, if used to denote that which is conveyed in a real estate

deed, may, without further delineating words, be one of limita-

tion. Id., syllabus 3.

83 At common law, land is deemed to extend from the cen-

ter of the earth to the sky. This concept is expressed in the

maxim — a centro usque ad coelum. Biacx’s states the maxim more

fully -cujus est solum ejus est usque ad coelum et ad inferos - which

means that “the owner of the soil owns to the heavens and also

to the lowest depths.” BLack’s Law Dictionary 5th Ed. at 22 and

341 (1979). See Brandes v. Mitterling, 196 P.2d 464, 467 (Ariz.

1948), where the court notes that the maxim has been applied

“through the ages in a variety of circumstances,” and observes

that it has been rejected in cases that measure a landowner’s right in

the airspace above. Id. at 467, citing United States v. Causby, 328

U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (Ct.Cl. 1946).

‘Sf

‘Z

“y

App. 29

material of the earth, whatever may be the ingredients of

which it is composed, whether soil, rock or other sub-

stance.”®* The owner of land in fee has the right to the

surface and to everything permanently situated beneath

or above it.”®5 The term land has a definite meaning that

is synonymous with the word “real property.”8 Real

property is defined by statute as “Land... [t]hat which is

affixed to land. . . . [t]hat which is incidental or appurte-

nant to land. . . . [and] [t]hat which is immovable by

law.”87

Having determined that the noun “grounds” is not to

be taken as a word of limitation, we next consider

whether from a four-corners’ examination of the MHO

Agreement, the parties may have intended that, at the

termination of the contract, only the surface estate be

conveyed to Lewis while a mineral interest stand

reserved in the grantor. To create a reservation it must

appear from the instrument that the grantor intended by

apt words to retain some interest from the estate con-

veyed. A grantor in a deed is presumed to have made all

the reservations intended to be made. One cannot dero-

gate from one’s grant by showing that some reservation was

84 60 O.S.1991 § 6.

85 60 O.S.1991 § 64.

86 The terms of 25 O.S.1991 § 26(2) provide:

“1. the word ‘property’ includes property, real and

personal.

2. The words ‘real property’ are coextensive with

lands, tenements and hereditaments. * * * ”

87 The terms of 60 O.S.1991 § 5 define real property as “1.

Land. 2. That which is affixed to land. 3. That which is incidental

or appurtenant to land. 4. That which is immovable by law.”

———

App. 30

intended but went unexpressed. There is a statutory presump-

tion that every estate in land which is conveyed by deed shall

be deemed an estate in fee simple unless limited by express

words.88 These guiding principles are clearly applicable in

assessing the measure of rights created by the MHO

Agreement under review. We hence conclude from a four-

corners’ examination of the Lewis/Authority contract that no

interest was intended to be reserved in the Authority.

SUMMARY

We hold that, absent any explicit congressional direc-

tive in the 1937 Act to withdraw from state-court cogni-

zance contractual disputes to arise between state-created

IHAs and their Indian homebuyers, a state district court has

jurisdiction to hear these parties’ contract-based claims.

State courts have constitutionally-invested cognizance,

concurrent with federal courts, to entertain any federal-

law claim not explicitly withdrawn from their authority

by some congressional enactment, so long as state judica-

ture does not infringe upon tribal self-government.

An intent to reserve a mineral interest in the grantor

may not be implied in a contract which promises to convey

to the grantee all of the grantor’s interest in the “house and

grounds”. The MHO Agreement in contest, written in

plain, clear and unambiguous language, unmistakably

88 The terms of 16 O.S.1991 § 29 are:

“Every estate in land which shall be granted, con-

veyed or demised by deed or will shall be deemed an

estate in fee simple and of inheritance, unless limited by

express words.” (Emphasis added.)

Bryan v. Everett, Okl., 365 P.2d 146, 147-148 (1961).

App. 31

reveals the parties’ intent to convey fee simple title to the

Indian purchasers upon their full performance of that

agreement.

THE TRIAL COURT’S JUDGMENT IS AFFIRMED.

HODGES, C.J., and SIMMS, HARGRAVE, OPALA,

WILSON AND WATT, JJ., concur;

LAVENDER, V.C.J., concurs in result;

KAUGER and SUMMERS, JJ., dissent.

App. 32

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

JOANN LEWIS and JAMES F.

LEWIS, Husband and Wife,

Plaintiffs-Appellees,

MAJORIE L. WOLFE,

Plaintiff,

No. 78,825

THE SAC AND FOX TRIBE OF

)

) FOR OFFICIAL

)

OKLAHOMA HOUSING :

)

PUBLICATION

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.

(Filed

Feb. 9, 1994)

SUMMERS, J., Dissenting;

The majority frames the jurisdiction issue as whether

Oklahoma has been “ousted” from its “concurrent juris-

diction.” It disregards United States Supreme Court case

law as well as recent Oklahoma case law! squarely in

* Housing Authority of Seminole Nation v. Harjo, 790 F.2d 1098

(Okla. 1990), is effectively overruled by today’s majority opin-

ion. Other cases which are overruled, although not expressly,

are Ahboah v. Housing Authority of Kiowa Tribe, 660 P.2d 625

(Okla. 1983), Barnett v. Newcomer, 307 P.2d 148 (Okla. 1957), and

Swain v. Hildebrand, 36 P.2d 924 (Okla. 1954).

SELLER SEA EERE. POAC TIREE ES 0 HEAP Ny SE, eR E

PROSE Ae EE TEE EP IIS MN RN i He Pane NaN t arate is Seay 40k

TOS Pe LOREM AIMED yr RRR ETI

App. 33

point, and instead relies predominately on two United

States Supreme Court cases dealing with “ouster.” In so

doing, the majority makes the assumption that the state

has concurrent jurisdiction with the federal and tribal

courts, and pays no heed to the abundance of United

States Supreme Court law dealing with the extremely

narrow jurisdiction held by a state over Indian affairs in

Indian country.?

The majority’s explanation of Gulf Offshore v. Mobil

Oil Corp., 453 U.S. 473 (1981) and Yellow Freight System,

Inc. v. Donnelly, 494 U.S. 820 (1990) may be correct when

applied in the proper context; however, these two cases

have no relevance in this setting, and are not applicable

when the state’s jurisdiction is questioned because of an

assertion that the event took place in Indian country. The

United States Supreme Court has held, in similar

instances, that application of principles derived in other

areas of law are generally not helpful when attempting to

resolve an issue which arose in Indian country. See White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).

Because of the special relationship between a tribe and

the federal and state governments, such questions must

be resolved in light of historical concepts regarding

Indians. Id.; see also Cohen, Handbook of Federal Indian Law

259-280 (1984). ;

2 A conflict between this Court’s resolution and those reso-

lutions of the federal appeals court is reason for the United

States Supreme Court to grant certiorari. DeCoteau v. District

County Court, 420 U.S. 425, 430 (1974).

App. 34

No party to this lawsuit raised or addressed the issue

of “ouster” or “concurrent jurisdiction.” Rather, they cor-

rectly framed the issue as one which focuses on whether

the state courts have jurisdiction over a contract dispute

involving an Indian housing authority.* The housing

authority urges that the state lacks jurisdiction because

the land dispute arose in a dependent Indian community

which is included within the statutory definition of

“Indian country.” The Lewises disagree, urging that state

courts have jurisdiction because the housing authority

was created and incorporated under state law.

“With the adoption of the Federal Constitution,

Indian relations became the exclusive province of federal law.”

Oneida County, N.Y. v. Onieda Indian Nation of N.Y. State,

470 U.S. 226, 234 (1984) reh. denied, 471 U.S. 1062 (1984)

(Emphasis added); U.S. Constitution Article I, Section 8,

Clause 3; U.S. Constitution, Article VI, Clause 2. The

basic issue is simply whether the transaction occurred in

Indian country. If it did not, the state may clearly assume

jurisdiction and resolve the matter. However, if it did

occur in Indian country, further analysis of Supreme

Court law is necessary to determine where jurisdiction

rests. “Numerous cases confirm the principle that the

Indian country classification is the benchmark for

approaching the allocation of federal, tribal, and state

authority with respect to Indians and Indian lands.”

Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 P.2d

3 At least one federal court has held that Oklahoma does

not have jurisdiction over general contract disputes which arise

in Indian country. See Richardson v. Malone, 762 F.Supp. 1463

(N.D.Okla. 1991).

App. 35

967, 973 (10th Cir. 1987). cert. denied 487 U.S. 1218 (1987).4

Thus, the question of whether this event took place in

Indian country is the cornerstone and beginning point of

analysis. Oklahoma Tax Comm’n v. Sac and Fox Nation, 113

S.Ct. 1985, 1991 (1993).

This framing of the issue does not preclude all state

jurisdiction over Indian concerns. It requires that the

analysis begin by recognizing that Oklahoma, in its

Enabling Act, declined general civil regulatory jurisdic-

tion. Oklahoma Enabling Act, ch. 3335, § 3, 34 Stat. 267,

270 (1906); see also Senate Report 699, 1953 U.S. Code

Cong. & Adm. News 2409, 2412. Thus, any civil jurisdic-

tion held by this state is a direct result of federal congres-

sional action or federal case law. We, as a court, may not

like the idea that we are without jurisdiction to adjudicate

certain civil actions dealing with Indian matters. Nev-

ertheless, our guidance comes from the Federal Constitu-

tion and its interpretation in judicial opinions. We are

bound by the interpretation given in this area by the

United States Supreme Court. See Seneca-Cayuga Tribe v.

State ex rel. Thompson, 874 F.2d 709 (10th Cir. 1989).

In Williams v. Lee, 350 U.S. 217 (1958), the United

States Supreme Court explained the state’s role with

regard to jurisdiction over Indian concerns. There, a non-

* Cited as authority for this statement are Solem v. Bartlett,

465 U.S. 463, 465 (1984); DeCoteau v. District County Court, 420

U.S. 425 (1975); Kennerly v. District Court, 400 U.S. 423 (1971);

Cheyenne-Arapaho Tribes of Oklahoma v. Oklahoma, 618 F.2d 665

(10th Cir. 1980); Cohen’s Handbook of Federal Indian Law 27-46 (R.

Strickland ed. 1982); F. Cohen, Handbook of Federal Indian Law,

5-8 (1942).

App. 36

Indian owned and operated a store on the Navajo Reserva-

tion. He brought suit against two on-reservation Indians who

had purchased goods from his store on credit and had failed

to make payment. The Arizona state court refused to dismiss

the action for lack of jurisdiction, and entered judgment on

behalf of the store owner. The United States Supreme Court

reversed and held that the state had no jurisdiction over the

matter. Quoting Chief Justice John Marshall in Worcester v.

Georgia, 6 Pet. 515, 561 (1832), the Court explained that the

laws of the state have no application because the state does

not have jurisdiction:

The Cherokee nation . . . is a distinct community,

occupying its own territory . . . in which the

laws of Georgia can have no force, and which

the citizens of Georgia have no right to enter,

but with the assent of the Cherokees themselves,

or in conformity with treaties, and with the acts

of congress. The whole intercourse between the

United States and this nation, is, by our constitution

and laws, vested in the government of the United

States.

Id. at 219 (Emphasis added). The Court held that while

there had been slight modifications in the law of Worces-

ter, “the basic policy of Worcester had remained.” 1d.5

> Williams and Worcester have been consistently followed in

jurisprudence concerned with state jurisdiction over Indian

affairs. See, e.g. Fisher v. District Court, 424 U.S. 382 (1976), reh.

denied 425 U.S. 926 (1976); McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164 (1973); Mescalero Apache Tribe v. Jones, 411

U.S. 145 (1973); Rice v. Olson, 324 U.S. 786 (1945). The concepts

have now been further refined to permit a “a more individu-

alized treatment of particular treaties and specific federal stat-

utes.” Mescalero Apache Tribe, 411 U.S. at 148; see also Organized

App. 37

Williams makes it clear that, unlike the majority’s asser-

tion, Oklahoma does not have concurrent jurisdiction with the

federal government if the event took place within Indian coun-

try. See also Ex parte Crow Dog, 109 U.S. 556 (1883).

Instead, there is a presumption against state jurisdiction in

Indian country. Indian Country, U.S.A., 829 F.2d at 976,

citing Cabazon, supra, and Cheyenne-Arapaho Tribes, supra.

The United States Supreme Court has repeatedly

denied jurisdiction to state courts. In Kennerly v. District

Court, 400 U.S. 423 (1971). There, Indians bought food on

credit from a grocery store on the reservation. The store

brought suit against the indians in a Montana state court.

The United States Supreme Court held that Montana was

without jurisdiction over the matter because it had not

complied with the terms of Pub.L. 83-280. Again, in Fisher

v. District Court, 424 U.S. 382 (1976) reh. denied 425 U.S.

926 (1976), Montana’s jurisdiction was questioned. There,

an adoption proceeding had been brought in state court.

The Supreme Court held that the tribe had jurisdiction

over the adoption and that the state was without jurisdic-

tion.

Later, in New Mexico v. Mescalero Apache Tribe, 462

U.S. 324 (1983), the Court stated that the rule is not so

inflexible as to preclude all jurisdiction absent Congress’

consent. Instead, the Williams rule was refined: “[U]nder

certain circumstances a State may validly assert authority

Village of Kake v: Egan, 369 U.S. 60 (1962); New York ex rel. Ray v.

Martin, 326 U.S. 496 (1946). Because I do not believe that this

property was located within Indian country, I do not fully dis-

cuss the different arenas in which the state may have jurisdic-

tion over Indian country.

App. 38

over the activities of nonmembers on a reservation,

and .. . in exceptional circumstances a State may asset

[sic] jurisdiction over the on-reservation activities of

tribal members.”®

Congress has consistently acted to show that the

states have only limited power to regulate Indian affairs.

Id. at 220. The Federal Constitution, in Article I, Section 8,

Clause 3, specifically states that “Congress shall have

Power .. . To regulate Commerce . . . with Indian Tribes.”

Furthermore, the United States Supreme Court, as well as

federal courts of appeal, have consistently held that this

provision of the “Constitution vests the Federal Govern-

ment with exclusive authority over relations with Indian

tribes.” Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985);

see also Bryan v. Itasca County, 426 U.S. 710, 714 n.2 (1976);

United States v. Mazurie, 419 U.S. 544, 555 (1975); Indian

Country, U.S.A. v. State ex rel. Oklahoma Tax Comm’n, 829

F.2d 967, 974 (10th Cir. 1987). The state’s lack of jurisdic-

tion has also been affirmed when dealing with the related

concept of sovereignty. “[T]ribal sovereignty is depen-

dent on, and subordinate to, only the Federal Govern-

ment, not the States.” California v. Cabazon Band of Mission

Indians, 480 U.S. 202 (1987), quoting United States v.

Mazurie, 419 U.S. at 557; see also Washington v. Confederated

Tribes of the Colville Indian Reservation; 447 U.S. 134 (1980);

Indian Country U.S.A., supra.”

U.S. 463 (1976); Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980), reh. denied 448 U.S. 911

(1980); Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973).

7 See generally Clinton, American Indian Law (3d ed.1991),

pp- 181-183.

Pai Rast NN NED SHR Ty Ae HAIR Wd ss

App. 39

Congress provided a method by which Oklahoma

could have assumed jurisdiction over some civil matters

arising in Indian country. United States v. Burnett, 777 F.2d

593 (10th Cir. 1986) cert. denied 476 U.S. 1106 (1985).

Under Public Law 83-280, as later amended in 25 U.S.C.

§1321 et seq., Congress agreed to cede jurisdiction over

civil Indian matters to the states:

§1322. Assumption by State of civil jurisdiction

(a) Consent of United States; force and effect of

civil laws

The consent of the United States is hereby given

to any State not having jurisdiction over civil

causes of action between Indians or to which

Indians are parties which arise in the areas of

Indian country situated within such State to

assume, with the consent of the tribe occupying

the particular Indian country or part thereof

which would be affected by such assumption,

such measure of jurisdiction over any or all such

civil causes of action arising within such Indian

country or any part thereof as may be deter-

mined by such State to the same extent that such

State has jurisdiction over other civil causes of

action, those civil laws of such State that are of

general application to private persons or private

property shall have the same force and effect

within such Indian country or part thereof as

they have elsewhere within that State.

Under this statute as originally enacted, the state was

required to take some affirmative action to extend its

jurisdiction to Indian country. Oklahoma did not take any

such action. Id. see also Oklahoma Tax Comm'n v. Sac and

Fox Nation, 113 S.Ct. at 1992. The intent as expressed by

congressional reports shows that Congress investigated

App. 40

the various needs of states and tribes. Tribes were for the

most part “agreeable to the transfer of jurisdiction” pro-

posed under Pub.L. 83-280. Senate Report, at 2412. How-

ever, several states - INCLUDING OKLAHOMA ~ had in

their constitutions expressly disclaimed jurisdiction over

Indian land within state borders. The Senate Report states

that the effect of such disclaimers was “to retain exclusive

Federal jurisdiction . . . ” (Emphasis added). If the view

enunciated in the majority opinion were correct, there

would have been no need for federal legislation like

Pub.L. 83-280.

Thus, the question is not one of “ouster of concurrent

jurisdiction” but is one of state power and authority to

adjudicate an [sic] matter occurring in Indian country.

While Oklahoma is not completely precluded from regu-

lating affairs on Indian country, it does not have general

civil regulatory power or authority to apply all of its

general laws. See Cabazon, infra. “If state-court jurisdiction

over Indians or activities on Indian lands would interfere

with tribal sovereignty and self-government, the state

courts are generally divested of jurisdiction as a matter of

federal law.” Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9

(1987) citing Fisher v. District Court, 424 U.S. 382 (1976)

and Williams v. Lee, supra.8

8 One example of insufficient state interests to justify the

extend of state jurisdiction was addressed in Cabazon. There

california sought to regulate tribal bingo, asserting that the state

had an interest in preventing the infiltration of the tribal bingo

enterprises by organized crime. The Supreme Court held this to

be insufficient to permit the state to have jurisdiction. This

decision is important especially in light of the fact that Califor- -

nia had expressly been granted certain jurisdictional rights

App. 41

This Court has once before attempted to exercise

jurisdiction where it had not been expressly permitted by

the federal government. In State ex rel. May v. Seneca-

Cayuga Tribe, 711 F.2d 77 (Okla. 1985), we stated that

Oklahoma has “residual” civil jurisdiction over Indian

country. Relying on a novel interpretation of Pub.L.

83-280, we held that assertion of jurisdiction under Pub.L.

83-280 was not the only way in which a state could

exercise general civil jurisdiction. We stated that our state

could exercise authority over Indian country under its

“residual jurisdiction” powers:

The concept of ‘residuary’ jurisdiction is used to

invest state courts with jurisdiction interstitially

when the subject-matter of cognizance does not

infringe upon tribal self-government and has

not been preempted by congressional legisla-

tion.

Id. at 88. We continued by balancing the interests of the

state in regulating tribal bingo against that of the federal

and tribal governments, holding that the state is not

necessarily precluded from exercising jurisdiction.

Unfortunately, the Tenth Circuit disagreed with our

May analysis in Seneca-Cayuga Tribe v. State ex rel.

Thompson, 874 P.2d 709 (10th Cir. 1989). The same issue

was presented in a connected case in the federal courts.

The Tenth Circuit held that the Oklahoma Supreme

Court’s ruling in May was inconsistent with federal law,

under Pub. L. 280, yet the Court still declined to extend the

State’s jurisdiction to cover this situation. Oklahoma, by failing

to take action under Pub. L. 280, has even less regulatory

authority than does California.

App. 42

and because it was a matter of interpretation of federal

principles, this Court’s analysis was not binding. Id. at

714. The federal court first looked to whether it should

abstain from exercising jurisdiction. Answering that

question in the negative, the court pointed out the pri-

macy of the federal interest:

The Constitution grants to Congress the power

‘To regulate Commerce . . . with the Indian

Tribes.” U.S. Const. art I, § 8, cl.3. The treaties

and other agreements that govern the relation-

ship between the Indians and other Americans

are part of ‘the supreme law of the Land.” Id. art

VI, cl.2. It is Congress that has set the terms under

which modern American Indians live, the United

States Supreme Court that has shaped the interpreta-

tion of those terms and the federal Bureau of Indian

Affairs that has managed the day-to-day- interac-

tions with the Tribes. Indeed, Oklahoma, like many

other states, was required to disclaim jurisdiction

over Indians at statehood.

Id. at 712. (Emphasis Added). The Tenth Circuit contin-

ued by noting that the “presumption and the reality,

however, are that federal law, federal policy, and federal

authority are paramount in the conduct of Indian affairs

in Indian Country.” Id. at 713. The Tenth Circuit con-

cluded that the federal court - not the Oklahoma state

courts — had jurisdiction to regulate the civil matter of

tribal bingo.

As for the majority’s claim that Harjo and Abhoah

failed to consider “ouster” principles, these two cases

have been approved by a federal court. In Richardson v.

Malone, 762 F.Supp. 1463 (N.D.Okla. 1991), the federal

App. 43

district court held that it had jurisdiction over a fore-

closure action against Indian defendants involving prop-

erty located in Indian country. The court again pointed

out that Oklahoma had not accepted civil jurisdiction as

authorized by Pub.L. 83-280. Citing Harjo and Abhoah, the

federal court agreed that the state did not have jurisdic-

tion. Id. at 1466. Because of the absence of tribal courts

and the lack of jurisdiction in the state court, the contract

dispute was properly lodged in the federal courts.

Here, if the transaction or land involved was not

Indian country? within the definition of 18 U.S.C. 1151,

then Oklahoma courts have jurisdiction to decide the

matter. It is with this inquiry that Abhoah v. Housing

Authority of the Kiowa Tribe of Indians, 660 P.2d 625 (Okla.

1983) and Housing Authority of Seminole Nation v. Harjo,

790 P.2d 1098 (Okla. 1990) come into play. These two

cases dealt with Section 1151’s definition of “Indian coun-

try.” The relevant portion of Section 1151 states that

“Indian country” includes “all dependent Indian commu-

nities within the borders of the United States whether

within the original or subsequently acquired territory

® It is not “reservation” status that blocks the state from

asserting jurisdiction. In Oklahoma Tax Comm'n v. Sac and Fox

Nation, 113 S.Ct. 1985 (1993), the United States Supreme Court

stated that “reservation” status was irrelevant; the proper

inquiry was whether the event took place in “Indian country” or

involved a tribal member who lived in “Indian country.” Id. at

1591. The Court went on to note that “Congress has defined

Indian country broadly to include formal and informal reserva-

tions, dependent Indian communities, and Indian allotments,

whether restricted or held in trust by the United States.” Id.; see

18 U.S.C. §1151.

App. 44

thereof, and whether within or without the limits of a

state.”

In Harjo, an Indian homeowner fell behind in her

payments to the Indian housing authority. The authority

brought suit in state court for forcible entry and detainer.

The homeowner urged that the state did not have juris-

diction over the matter because her home was located in

a dependent Indian community. The evidence showed

that she inherited restricted Seminole land from her hus-

band. She deeded the land to the housing authority to

build her a house. Under a Mutual Help and Occupancy

Agreement, the authority built the house. The woman

agreed to make payments for seventeen years. After all

payments were made, the house and land were to be

deeded back to her.

Relying on federal case law!°, we held that the fac-

tors to be considered when determining whether land is

located in a dependent Indian community were:

(1) [w]hether the United States had retained

title to the lands which it permits the Indians to

occupy and authority to enact regulations and

protective laws respecting this territory, (2) the

nature of the area in questions, the relationship

of the inhabitants of the area to Indian tribes

and to the federal government. and the estab-

lished practice of government agencies toward

the area, (3) whether there is an element of

cohesiveness manifested either by economic

pursuits in the area, common interests, or needs

10 United States v. South Dakota, 665 F.2d 837 (8th Cir. 1981),

cert. denied, 459 U.S. 823 (1982); United States v. Martine, 442 F.2d

1022 (10th Cir. 1971).

App. 45

of the inhabitants as supplied by that locality,

and (4) whether such lands have been set apart

for the use, occupancy and protection of depen-

dent Indian peoples.

The federal government has jurisdiction over “those com-

munities which, while neither part of a federal reserva-

tion nor Indian ‘allotments,’ are both ‘Indian’ in character

and federally dependent.” Harjo, 790 P.2d at 1100-1101,

quoting United States v. Levesque, 681 F.2d 75, 77 (8th Cir.

1982), cert. denied, 459 U.S. 1089 (1982). In general terms,

the decisive question is whether the land was “validly set

apart for the use of the Indians, as such, under the

superintendence of the government.” United States v. Peli-

can, 232 U.S. 442 (1914). The ultimate decision as to

whether land is situated within a dependent Indian com-

munity is factually specific. Pelican, supra; Alaska v. Native

village of Venetie, 856 F.2d 1384, 1391 (9th Cir. 1988).

We held that under the circumstances presented in

Harjo, the land was located within a dependent Indian

community. The land remained subject to the control of

the federal government; there were comprehensive gov-

ernmental regulations regarding the MHO agreement.

The tribe maintained the sewage and health services to

the area. The schools received federal funding, through

programs designed to help Indian children. An anthro-

pologist testified that the living arrangement was consis-

tent with a distinct traditional pattern of dwelling within

Indian families. The house was located near Indian

churches where traditional Indian languages were spo-

ken.

The evidence is not nearly so strong in the present

case. The land in question was not owned by Indians nor

App. 46

held in trust for their benefit prior to the purchase by the

housing authority. The home is located on unresiricted

fee land. There is not intensive control by the federal

government through HUD, because the MHO agreement

has been completed and the house and land has been

deeded to the Lewises. There do not seem to be close

tribal ties to the housing addition. There is no evidence

that the residents of the house are dependent on the Sac

and Fox Tribe for police or fire protection.1! Importantly,

the Lewis’s assert that they are not part of an Indian

community. Unlike Harjo, where four tracts of lands were

deeded to build houses for members of the same family,

the only connection between the Lewises and the other

homeowners is location. The land was not ‘set apart for

the use of Indians, as such under the superintendence of

the government.” Pelican, 232 U.S. at 449.

I would determine that the facts are not sufficient to

show a “dependent Indian community” under Harjo.

Thus, the land is not Indian country as defined by Section

1151. The state court has jurisdiction to decide the contro-

versy. This rationale is consistent with the decisions of

the United States Supreme Court, the federal courts of

appeal, and our own jurisprudence.

I am authorized to state that Justice Kauger joins in

these views.

11 The Authority states that such protection is available.

App. 47

IN THE DISTRICT COURT OF THE TWENTY-THIRD

JUDICIAL DISTRICT SITTING WITHIN AND FOR

POTTAWATOMIE COUNTY

STATE OF OKLAHOMA

JOANN LEWIS and JAMES F.

LEWIS, Husband and Wife, and

MARJORIE L. WOLFE,

Plaintiffs, No. C-90-666

VS.

THE HOUSING AUTHORITY

OF THE SAC AND FOX NATION,

Defendant.

(Filed

)

) May 3, 1991)

)

ORDER

BE IT REMEMBERED that on the 21st day of Febru-

ary 1991 this matter came on for hearing of Defendant’s

Motion to Dismiss. The Plaintiffs appeared by and

through their attorney of record, Douglas Combs. The

Defendant appeared by and through its attorney of

record, Mildred Harjo Ware. The Plaintiff called two (2)

witnesses who were sworn, examined and cross-exam-

ined. Defendant asserted that the Courts of the State of

Oklahoma lack personal, subject matter and territorial

jurisdiction to hear Plaintiffs’ claim. In particular, Defen-

dant asserted that the United States Department of Hous-

ing and Urban Development is an indispensable party

pursuant to 12 O.S. §2019(A) and (B) and therefore the

action must be dismissed. Second, the Defendant asserted

that Plaintiffs’ claims are barred by tribal sovereign

immunity in that the Sac and Fox Housing Authority is

an agency of the sovereign Sac and Fox Nation; that the

App. 48

sovereign has not consented to suit against its agency in

the state court, depriving the Court of both personal and

subject matter jurisdiction. Third, the subject property

which Plaintiffs seek is Indian Country and therefore the

State Court lacks territorial jurisdiction.

In response, Plaintiffs alleged that HUD is not an

indispensable party; that the Defendant, a State agency,

may be sued in State court; and the subject minerals are

not Indian Country due to the character of the land.

After considering the pleadings, testimony and

exhibits admitted at the hearing, the briefs and argu-

ments presented by counsel for the parties, and being

fully advised in the premises, the Court enters the follow-

ing findings of fact and conclusions of law:

1. The United States established Low Rent Public

Housing Programs to establish low-income housing

through the United States Housing Act of 1937. The

Housing Act of 1937 is silent as to the sovereign immu-

nity of the tribe.

2. The United States created a Federal agency, the

Department of Housing and Urban Development (HUD),

to administer, supervise and control use of Federal funds.

3. HUD promulgated extensive regulations at 24

C.F.R., Part 905.

4. HUD instituted Indian Housing programs in

1962.

5. The Sac and Fox Nation is a Federally recognized

sovereign Indian nation.

App. 49

6. The Sac and Fox Nation established the Sac and

Fox Housing Authority in 1966 to provide low-income

housing for its citizens and other Indians; the 1966 resolu-

tion was silent as to express waiver of sovereign immu-

nity and designation of forum in which to be sued.

7. The parties have entered MHO agreements which

Plaintiffs seek to enforce.

8. The Sac and Fox Nation reorganized the Sac and

Fox Housing Authority in the Sac and Fox Housing

Authority Act of 1983, Public Law SF-83-25, subsequent

to the execution of Plaintiffs’ contracts and agreements

with the Sac and Fox tribe of Oklahoma Housing Author-

ity.

9. The Sac and Fox constitution makes no provision

for tribal laws to be approved by the Secretary of the

Department of the Interior.

10. Pursuant to 24 C.FR., Part 905, which requires

the approval OR review and comment of tribal ordi-

nances creating housing authorities, the Department of

the Interior has reviewed and commented that the Sac

and Fox Nation has the authority to reorganize its hous-

ing authority. )

11. HUD has made no final agency decision con-

cerning its approval of the Sac and Fox Housing Author-

ity Act of 1983; that the issue of approval remains on

appeal.

12. The Sac and Fox Nation in P.L. SF-83-25, Ch. 3,

§302, provides a waiver of the housing authority’s sover-

eign immunity and designates the tribal court as the

forum in which the housing authority is to be sued.

App. 50

13. The Sac and Fox Housing Authority purchased

land in fee simple, re-platted the land and created Sac

and Fox Addition No. 2 in its use of Federal funds desig-

nated as Project 90-05, the ~ubject of these proceedings.

14. Federal Regulation, 24 C.FR. 905.422(D)(2)

requires the approval of HUD for conveyance of Housing

Authority properties.

15. The Sac and Fox Housing Authority tenders

payment in lieu of taxes to the Sac and Fox Nation

pursuant to tribal law.

16. The Sac and Fox Nation provides police protec-

tion, social services and food to the inhabitants of Project

90-05.

17. Indian Health Service provides health care to

the inhabitants of Project 90-05.

18. Law enforcement officers in the City of Shawnee

and Pottawatomie County treat Project 90-05 as Indian

Country, regardless of whether the Housing Authority

owns the land.

19. The Sac and Fox Tribal Police provide exclusive

police protection in Project 90-05.

20. The evidence is inconclusive as to whether or

not the Plaintiff, Marjorie L. Wolfe, who holds title in fee

simple, remains a part of the mutual help project or is

entitled to Sac and Fox tribal police services.

21. The Court finds that the payment of in lieu taxes

as found above, as well as the provision of tribal health,

police, social and food services, as found above, did not

App. 51

exist at the time of the entry into the contracts and

agreements of the parties.

22. Project 90-05 has been designated as Indian

Country in State vs. Franklin et al., No. CRT-83-3109,

CRF-83-3153.

23. The State of Oklahoma does not appoint board

members to the Sac and Fox Housing Authority Board of

Commissioners, does not provide services to the inhabi-

tants of Project 90-05, and does not appropriate funds for

the Sac and Fox Housing Authority.

24. The Plaintiffs, JoAnn Lewis and James F. Lewis,

are husband and wife, and executed a contract with the

Defendant, Sac and Fox Tribe of Oklahoma Housing

Authority, known as a Mutual-Help and Occupancy

Agreement, on the 22nd day of December 1974.

25. The Plaintiff, Marjorie L. Wolfe, executed a con-

tract with Defendant, Sac and Fox Tribe of Oklahoma

Housing Authority, known as a Mutual-Help and Occu-

pancy Agreement on the 22nd day of December 1974.

26. The Plaintiff, Marjorie L. Wolfe, was conveyed

her surface interest in her home from Defendant on the

12th day of January 1988 by Warranty Deed and holds

title thereto in fee simple.

27. The Defendant “Authority” acquired title with-

out restriction to the property in question, by Warranty

Deed, in September 1974. The property acquired was not

trust property or restricted Indian property.

28. The Mutual-Help and Occupancy Agreement

executed on December 22, 1974 was executed only by the

parties herein, JoAnn Lewis and James F. Lewis, and by

App. 52

Marjorie L. Wolfe, as well as the Defendant, Sac and Fox

Tribe of Oklahoma Housing Authority.

29. The “Authority” was at the time of acquisition

of the property in question and at the time of execution of

the agreement between the Plaintiff formed and estab-

lished under the provisions of the Oklahoma Housing

Act. See 63 O.S. §1051 et seq. Resolution No. 1 “Relating

to the Organization of the Housing Authority of the Sac

and Fox Tribe of Indians of Oklahoma,” enacted by the

tribe forming the “Authority” under the Oklahoma Hous-

ing Act, has not been repealed or revoked and remains in

effect.

30. The “Authority” has applied for the formation

of an “Indian Housing Authority” under the provisions

of 24 CFR, Ch. IX, Sections 905.101 et seq. The ordinance

authorizing the formation of an “Indian Authority” has

not been approved by the Department of Interior pur-

suant to 24 CFR, CH. IX, Section 905.101 et seq.

31. The Department of Interior by and through

Charles Ming, Manager of the Department of Interior

Oklahoma City office, determined on February 24, 1987

that the Sac and Fox tribe lacks powers of self-govern-

ment on non-trust lands which would necessitate TWO

housing authorities in order to deliver services to its

tribal members. The Department of Interior further deter-

mined “that the tribal ordinance creating a separate

Housing Authority for trust land be and is hereby

denied.”

32. The provisions of 63 O.S. §1061 of the Oklahoma

Housing Authority Act provide that the agencies formed

thereunder have the power to sue and be sued.

App. 53

33. Te “Authority” filed in Case No. C-76-27 in the

District Court of Pottawatomie County an application for

a decree vacating a portion of the plat known as the

Maywood Addition to the City of Shawnee, Oklahoma, in

which a decree was granted on February 25, 1976. The

“Authority” filed in the records of Pottawatomie County

Clerk an owner’s certificate and dedication for the Sac

and Fox Second Addition, including a plat and covenants.

CONCLUSIONS OF LAW

The Court concludes that at the time of the entry of

the parties into the contracts and agreements, the enforce-

ment of which is sought herein, the premises in question

were not situated within a dependent Indian committee

and were not otherwise Indian Country. The Court con-

cludes that the Motion to Dismiss for lack of personal

subject matter and territorial jurisdiction should be and

the same is hereby overruled and denied, and the Defen-

dants are granted twenty (20) days to answer.

Done on this 3rd day of May 1991.

/s/ Glenn Dale Carter

GLENN DALE CARTER,

District Judge

App. 54

IN THE DISTRICT COURT OF THE TWENTY-THIRD

JUDICIAL DISTRICT SITTING WITHIN AND FOR

POTTAWATOMIE COUNTY,

ay STATE OF OKLAHOMA

JOANN LEWIS and JAMES F. )

LEWIS,

Husband and Wife, C-90-666

MARJORIE L. WOLF, (Filed

Plaintiffs, Nov. 4, 1991)

VS.

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.

JOURNAL ENTRY

NOW on this 29th day of October, 1991, this matter

comes on for trial pursuant to regular setting; plaintiffs

appear in person and by their attorney, Douglas L.

Combs; the defendant appears by Jack Thorpe and by its

attorney, Susan Work. Upon examination of witnesses,

arguments of counsel, the Court does therefore find:

As to the jurisdictional issue the Court finds that the

definition of a dependent Indian community is not an

operative fact to the proceedings at hand. The Court

App. 55

specifically finds that the objections to the jurisdiction of

the District Court of the Twenty-third Judicial District

Setting in and for Pottawatomie County, are overruled

and the Court assumes subject matter and personal juris-

diction over the plaintiffs and defendant.

The Court does further find that the operative issue

in the present case is the definition of the term “grounds”

as used in the Mutual Help and Occupancy Agreement.

The Court further requests briefs of the parties to be filed

within fifteen (15) days of October 29, 1991, specifically

addressing the following issues:

First, does the definition of “grounds” include min-

eral interest and is it a legal synonym for the term real

estate or real property or does the term “grounds” have a

restricted meaning, restricted to surface only?

Secondly, if the Court finds adverse to the position of

the defendant as to the first issue above, at what point do the

plaintiffs commence enjoyment of the royalty proceeds?

WITNESS my hand the date and year first above

stated.

/s/ Glenn Dale Carter

JUDGE OF THE

DISTRICT COURT

APPROVED:

/s/ Douglas L. Combs

u . Combs

Attorney for Plaintiffs

/s/ T. Susan Work

Susan Work

Attorney for Defendant

4 taeda decncpl

App. 56

IN THE DISTRICT COURT OF THE TWENTY-THIRD

JUDICIAL DISTRICT SITTING WITHIN AND FOR

POTTAWATOMIE COUNTY

STATE OF OKLAHOMA

JOANN LEWIS AND JAMES F.

LEWIS,

Husband and Wife,

MARJORIE L. WOLF,

Plaintiffs,

C-90-666

(Filed

Nov. 27, 1991)

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.

ee, ee, ee ee, ee ee ee, ee ee

ORDER

The above styled and numbered cause came on for

non-jury trial pursuant to regular assignment on the 29th

day of October, 1991. The Plaintiffs appeared by and

through their attorney, Douglas L. Combs and the Defen-

dant appeared by and through their attorney, L. Susan

Work. At the conclusion of the trial the Court entered

certain findings and adjudications which have heretofore

App. 57

been memorialized and reserved further judgment pend-

ing receipt of additional citations of authority on the

following issues:

First, does the definition of “grounds” as included in

the mutual-help and occupancy agreement entered into

by and between the parties include mineral interests, and

is it a legal synonym for the term “real estate” or “real

property”? or does the term “grounds” have a meaning

restricted to surface only? Second, if the Court finds in

favor of the Plaintiff and against the Defendant, at what

point would the Plaintiffs commence enjoyment of the

royalty proceeds?

With respect to the second issue, the parties subse-

quently stipulated that should the Plaintiffs prevail on

the primary issue of the transfer of surface and mineral

interests, that the Plaintiffs’ enjoyment of the royalty

proceeds would commence on the 23rd day of May, 1991,

the same being the date upon which the warranty deed

conveying surface ownership to the Plaintiffs from the

Defendant was executed.

The Court, having considered the further citations of

authority submitted by the parties hereto, finds that the

term “grounds” as used in the contract between the par-

ties dominated mutual-help and occupancy agreement

contemplates all interest in reality [sic], real estate and

real property. The Court notes that the contract provides

for conveyance of all of its interest and further notes that

there is no other language of limitation or reservation.

Accordingly, the Court finds for the Plaintiffs and

against the Defendant and the Defendant is ordered to

specifically perform under the terms of their agreement

was S| ae eT es ota See ee

Nee te, eS ae

App. 58

and to convey to the Plaintiffs the proportional share or

mineral interest effective as of May 23, 1991. Pursuant to

the stipulation of the parties, the Plaintiffs’ enjoyment of

the royalty proceeds are ordered to commence as of the

23rd day of May, 1991, the said date being the date that

the warranty deed conveying the surface to the Plaintiffs

from the Defendant was executed.

The Plaintiffs are ordered to prepare the appropriate

Journal Entry memorializing the proceedings of the 29th

day of October, 1991, circulate and submit the same to the

Court for signature as is provided by Rule 2.1 of the

Rules of the North Central Administrative District.

Done on the 27th day of November, 1991.

/s/ Glenn Dale Carter

GLENN DALE CARTER

DISTRICT JUDGE

App. 59

IN THE DISTRICT COURT OF THE TWENTY-THIRD

JUDICIAL DISTRICT SITTING WITHIN AND FOR

POTTAWATOMIE COUNTY

STATE OF OKLAHOMA

JOANN LEWIS and JAMES F.

LEWIS,

Husband and Wife,

MARJORIE L. WOLF,

Plaintiffs,

C-90-666

(Filed

Dec. 23, 1991)

VS.

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.

Ne me eee ee eee ee ee ee ee ee ee ee ee ee ee”

JOURNAL ENTRY

NOW on this 29th day of October, 1991, this matter

comes on for trial pursuant to regular setting; plaintiff

JoAnn Lewis appears in person and by her attorney,

Douglas L. Combs; Douglas L. Combs appears on behalf

of plaintiff James F. Lewis; the defendant appears by Jack

Thorpe and by its attorney, Susan Work. Upon examina-

tion of witnesses and arguments of counsel, the Court

does therefore find:

App. 60

The Court having considered further citations of

authority submitted by the parties hereto, does therefore

find for the plaintiffs, JoAnn Lewis and James F. Lewis,

and against the defendant, the Sac and Fox Tribe of

Oklahoma Housing Authority, a/k/a the Housing

Authority of the Sac and Fox Tribe of Indians of Okla-

homa, a/k/a Housing Authority of the Sac and Fox

Nation, a/k/a Sac and Fox Indian Housing Authority of

Oklahoma, and the defendant herein named is ordered to

specifically perform under the terms of the agreement

and to convey to the plaintiffs their proportional share of

mineral interest effective as of May 23, 1991.

The Court further finds, by reason of the stipulation

of parties, that the plaintiffs’ enjoyment of the royalty

proceeds are ordered to commence as of the 23rd day of

May, 1991, the said date being the date the Warranty

Deed conveying the surface to the plaintiffs from the

defendant was executed.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that plaintiffs, JoAnn Lewis and James F.

Lewis, are granted judgment on the second cause of

action for an accounting against the defendant, 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 and Fox

Nation, a/k/a Sac and Fox Indian Housing Authority of

Oklahoma, in the amount of $151.46 for oil and gas

revenues attributable to the plaintiffs’ property from May,

1991, through September, 1991; and all accruing royalty

sums thereafter earned attributable to the plaintiffs’ prop-

erty.

App. 61

WITNESS my hand this 27th day of November, 1991.

/s/ Glendale Carter

JUDGE OF THE

DISTRICT COURT

APPROVED:

/s/ Douglas L. Combs

Douglas L. Combs

Attorney for Plaintiffs

/s/ L. Susan Work

Susan Work

Attorney for Defendant

App. 62

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Wednesday, June 14, 1995

(Filed June 15, 1995)

THE CLERK IS DIRECTED TO ISSUE THE FOLLOW-

ING ORDERS:

77,639

78,825

81,699

82,210

82,403

Floyd Smith and Anna J. Smith v. Dennis

Krawetzke and Carolyn Krawetzke.

Certiorari denied.

All Justices concur.

JoAnn Lewis and James F. Lewis et al. v. The Sac

and Fox Tribe of Oklahoma Housing Authority

et al.

Rehearing denied.

CONCUR: Wilson, C.J., Hodges, Lavender,

Simms, Hargrave, Opala, Watt, JJ.

DISSENT: Kauger, V.C.J., Summers, J.

Gary Leon Torres, Personal Representative of the

Estate of Christopher Wade Torres, Deceased,

Gary Leon Torres and Patty S. Torres v. Superior

Supply Company, Inc.

Certiorari denied.

CONCUR: Wilson, C.J., Kauger, V.C.]J.,

Hodges, Lavender, Simms, Harg-

rave, Summers, Watt, JJ.

DISSENT: Opala, J.

Gena E. Elmore, a minor by and through her

next friend James F. Cotton v. Amy Horn Pool.

Certiorari denied.

All Justices concur.

Roger M. Kilby v. State of Oklahoma, Board of

Regents of the University of Oklahoma.

Certiorari denied.

All Justices concur.

82,548

82,952

83,092

83,278

App. 63

Mid-America Fuel Company, a limited partner-

ship v. Cherokee Acquisitions, Inc. a/k/a Wil-

Gro Fertilizer, Inc. a/k/a Willard Grain & Feed,

Inc.

Certiorari denied.

CONCUR: Wilson, C.J., Kauger, V.C.J.,

Hodges, Opala, Summers, Watt,

JJ.

DISSENT: Lavender, Simms, Hargrave, JJ.

Karen Carris d/b/a Sunbelt Construction v. John

R. Thomas, P.C. et al.

Rehearing denied.

CONCUR: Kauger, V.C.J., Lavender, Har-

grave, Opala, Summers, Watt, JJ.

DISSENT: Wilson, C.J., Hodges, Simms, JJ.

Dennis Moseby, Dave Witt and Richard Polishuk

v. Michael P. Kier, City Clerk, City of Tulsa and

Susan Savage, Mayor of the City of Tulsa.

Certiorari denied.

CONCUR: Wilson, C.J., Kauger, V.C.J.,

Simms, Hargrave, Watt, JJ.

DISSENT: Hodges, Lavender, Opala, Sum-

mers, JJ.

Stephen R. Melton and Theresa A. Melton v.

Paula R. Gulledge.

Certiorari denied.

CONCUR: Wilson, C.J., Kauger, V.C.J.,

Hodges, Lavender, Simms, Harg-

rave, Summers, Watt, JJ.

DISSENT: Opala, J.

/s/ Alvin Wilson

CHIEF JUSTICE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.