# Petition for Writ of Certiorari — Housing Authority of the Sac & Fox Nation v. Lewis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2231%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 516 U.S. 975 ## Text 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. ii 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 2. Nature of the Controversy ..............++++. 2. The Proceedings BOWW b.cccccdcccncoscssncss REASONS FOR GRANTING THE WRIT ........... i 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..... 11 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 IRAN SA SU) Ci Sbe set basevencycenee sean on 17 sg 00S v nig'v bode Wa ctbesdca suv dhvsbincess 19 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 iv 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 Vv 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 vi 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 2D, BOGB a. ois ca dies gSiewks s Chéiee 1 ee 11 BL. GR 0's 60040 cb neces snenasgbaccebocesbessaaet 12 12 UGA. © Boilie w 6 oon 00nueta sap acnensesceasasesens 6 16 UBL A. B WHMRe cic isscs ciisecccacgeetetivecvens 6 1 USCA. B TRGB is. isihieveds cose ead seeeenes 2, 15 13. USC i Be 6 cd oan sek ncinawiwas Fehe deena es 15 86 URI, We RU 6 h cae lanes backdccdessesteee 15 TS USC. © Giiaes cw tevensvcscesecsntcussecsunaee 12 yuk cee errr rrry Tie fir ss oe 2S USE Ai S Be Cotes ice Wakao VaSVisute 6 Be UBRK,, Bs 5 oan barndctencektschakensstsioeiee 6 25 UBS, & Bas otcanes cn iss aise 6 2S USC. © Fi oie scik cin ckd Skids ie 6 2S UGK. 6 Beas vids asin sinvntac race Fae eevee cass 6 20 UBL. © Ba ccc ssncadenssccceieeeeeee 2 Se Wai toe TB Bens 2 0.5.0 0.0. 0.0ches vet canseeensenas eens 3 29 UDR. B Fees bobs te'cese 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. IV THE DOCUMENT IN CONTEST - THE PARTIES’ MHO AGREEMENT - IS A CONTRACT TO CONVEY THE ENTIRE FEE UPON FULL PERFORMANCE OF ITS TERMS A. 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.” * » * (c) All revenues and proceeds derived from said 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 B. 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 t & ia ca a ‘Z E “y 2 is 3 ad & 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 V. 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.” © See also Moe v. Confederated Salish and Kootenai Tribes, 425 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. ee 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) V. THE SAC AND FOX TRIBE OF OKLAHOMA HOUSING AUTHORITY, A/K/A THE HOUSING AUTHORITY OF THE SAC AND FOX TRIBE OF INDIANS OF OKLAHOMA, A/K/A HOUSING AUTHORITY OF THE SAC & FOX NATION, A/K/A SAC AND FOX INDIAN HOUSING AUTHORITY OF OKLAHOMA, Defendant. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2231%3A1. Public record. Not legal advice.