IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Veronica Muhammad, ) ) Plaintiff, ) ) v. ) Case No. 09-0968-D ) Comanche Nation Casino, ) ) Defendant. )
Veronica Muhammad’s Response to
Comanche Nation's Motion to Dismiss and Brief in Support
__/s Jeremy D. Looper________ Jeremy D. Looper, OBA #21272 Billy D. Griffin, OBA # Jason B. Reynolds, OBA # GRIFFIN, REYNOLDS & ASSOCIATES 210 SE 89TH Street Oklahoma City, OK 73149 Telephone: (405) 721-9500 Facsimile: (405) 721-9503 Attorneys for Plaintiff Veronica Muhammad September 28, 2009
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TABLE OF CONTENTS
Table of Authorities……………………………………………………………………. ...3 Background…………………………………………………………………………….. ...6 Arguments and Authorities…………………………………………………………......... 8
1. The State courts of Oklahoma have jurisdiction over the Casino and subject matter in this case…………………………………………………………………….........8
A. Federal law allows States to receive this type of limited jurisdiction under the Indian Gaming Regulatory Act (“IGRA) 25 U.S.C. §2710………….. ..8
B. The Casino waived, on a limited basis, both jurisdiction and sovereign immunity under the Compact……………………………………………... 9
C. The Oklahoma Supreme Court has already decided this issue so the proper
remedy is to take up its ruling to the United States Supreme Court not through Arbitration...........................................................................…….. 14
2. Muhammad has stated a claim upon which relief can be granted….…………… 16
A. Muhammad did exhaust her tribal remedies under the Compact………....16
B. The Tort Claim Form signed by Muhammad consenting to tribal
jurisdiction is an adhesion contract and also violates the Compact…….... 18 Conclusion………………………………………………………...……………….….....20
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TABLE OF AUTHORITIES
Cases Cossey v. Cherokee Nation Enterprises, 2009 OK 6, _____ P.3d ______ (January 20, 2009).........................................................................................2, 3, 10, 14, 15 C & L Enterprises, Inc. v. Citizens Band Potawatomi Indian Tribe of Okla., 532 U.S. 411 (2001).....................................................................................................5, 6, 7 Doe v. Santa Clare Pueblo, 154 P.3d 644 (N.M 2007).......................................................4 Dry v. United States, 235 F.3d 1249, 1253 (10th Cir. 2000)................................................5 Dye v. Choctaw Casino of Pocola, 2009 OK 52, _____ P.3d ______..............................10 Facio v. Jones, 929 F.2d 541, 543 (10th Cir.1991)...........................................................10 Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ___ P.3d ____.........................6, 9, 10 Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1991)..................10 Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998).............4 Max True Plastering Co. v. U.S. Fidelity and Guar. Co., 912 P.2d 861 (Okla. 1996).......................................................................................................................13 Montana v. United States, 450 U.S. 544 (1981)..............................................................5, 7 Muskogee Gaming Commission v. The Honorable Mary Fitzgerald, District Judge, No. 104,726 (an unpublished opinion).................................................................................2, 14 Nevada v. Hicks, 533 U.S. 353 (2001).................................................................................5 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)............................................................10 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)..........................................................5 Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Assoc. Inc., 86 F.3d 656 (7th Cir. 1996).................................................................................................7 Strate v. A-1 Contractors, 520 U.S. 438 (1997)..................................................................5
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Texas v. New Mexico, 482 U.S. 124 (1987).........................................................................4 Williams v. Lee, 358 U.S. 217 (1959)..................................................................................5 Statutes 18 U.S.C. § 1151..................................................................................................................2 25 U.S.C. § 1326..................................................................................................................4 25 U.S.C. § 2703..................................................................................................................2 25 U.S.C. § 2710........................................................................................................3, 4, 13 28 U.S.C. § 1257................................................................................................................10 3A Okla. Stat. § 281...................................................................................................5, 6, 11 3A Okla. Stat. § 262.............................................................................................................8 Public Law 280....................................................................................................................7 Constitutional Provisions Okla. Const. art. 2, section 6................................................................................................7 Okla. Const. art. 2, section 19..............................................................................................7 Okla. Const. art. 4, section 1................................................................................................9 Okla. Const. art. 6, section 8................................................................................................9 Other Authority Cohen’s Handbook of Federal Indian Law..........................................................................4 Comanche Nation Gaming Compact (2004)..........................................2, 3, 5, 8, 11, 12, 14 Comanche Nation Gaming Compact (1999)........................................................................8 Seneca-Cayuga Tribe Gaming Compact (2001)..................................................................6
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State Question No. 712, Legis. Referendum No. 335 (Nov. 2, 2004).................................6
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Veronica Muhammad, ) ) Plaintiff, ) ) v. ) Case No. 09-0968-D ) Comanche Nation Casino, ) ) Defendant. )
Veronica Muhammad’s Response to Comanche Nation’s Motion to Dismiss and Brief in Support
Veronica Muhammad (“Muhammad”) filed her case in the District Court of
Comanche County (“State Court”), State of Oklahoma bearing case number CJ-2009-751
(“State Court Action”) on July 29, 2009 against the Comanche Nation Casino (“Casino”).
The Casino then filed its Notice of Removal on September 1, 2009 wherein it requested
this Court assume jurisdiction alleging that a federal question has been raised. This Court
has now assumed jurisdiction in this matter making the Casino’s request to Dismiss based
on the State Court lacking jurisdiction moot. Further, Muhammad fully complied with
the requirements set forth in the Tribal Gaming Compact Between the Comanche Nation
and the State of Oklahoma (“Compact”) and did not acquiesce to tribal court jurisdiction.
Therefore, this Court should deny the Casino’s Motion to Dismiss.
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Background
On April 10, 2007, Muhammad was at the Casino with Umar Muhammad
(“Umar”). The Casino is run by the Comanche Nation and is located in Lawton,
Oklahoma upon land know as “Indian country” or “Indian lands” as defined under 18
U.S.C. § 1151 and 25 U.S.C. § 2703(4)(B). Muhammad originally filed her tort claim
notice with the Comanche Nation on February 5, 2008 and the same was received by the
Casino on February 7, 2008. (See Exhibit 1). The Casino responded with a letter dated
February 7, 2008 which, in essence, refused to accept the tort claim unless it was done on
the Casino’s form that included language forcing submission to Comanche Nation
jurisdiction. (See Exhibit 2). Muhammad signed the Casino’s form since the claim was
approaching the one (1) year limitation period and the Oklahoma Supreme Court had
previously stated that State courts did not have jurisdiction. (Muskogee Gaming
Commission v. The Honorable Mary Fitzgerald, District Judge, No. 104,726,
unpublished opinion). Muhammad proceeded through the tort claim process as outlined
in the Tribal Gaming Compact Between the Comanche Nation and the State of Oklahoma
(“Compact”) and complied with all its requirements. (See Exhibit 3, pg. 8). This process
went on for over a year and the Casino never once offered any type of acceptance or
denial on the claim but instead requested a “Determination Hearing” to resolve the
matter, a process which is not afforded under the Compact. (See Exhibit 3, pg.8).
During this time, the Oklahoma Supreme Court revisited the issue of tribal
immunity to tort suits initiated under the Compact and decided that State courts are
“courts of competent jurisdiction” as required in the Compact. See Cossey v. Cherokee
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Nation Enterprises, LLC., 212 P.3d 447 (Okla. 2009). At that time, Muhammad had an
avenue that was not previously available to her when the tort claim was set up and
refused to submit further to the jurisdiction of the Comanche Nation. (See Exhibit 4).
This action included Muhammad’s refusal to attend the hearing which, again, is not a
requirement under the Compact to bring a tort claim. (See Exhibit 5). Based on that
refusal, the Casino deemed the claim waived and refused to offer an acceptance or denial
of the claim. This constituted a denial as it would in a Governmental Tort Claim.
Muhammad then proceeded to file this action in State court pursuant to the Supreme
Court’s ruling in Cossey.
Arguments and Authorities
1. The State courts of Oklahoma have jurisdiction over the Casino and subject matter in this case. A. Federal law allows States to receive this type of limited jurisdiction under
the Indian Gaming Regulatory Act (“IGRA”) 25 U.S.C. §2710. Under the IRGA, States are mandated to enter into negotiations with Tribes
in an effort to form compacts that will allow Class III gaming. See 25 U.S.C. §
2710(d)(3). In that same statute, Congress allowed for the States to acquire
jurisdiction over the Tribes in limited situations as a part of the negotiations. See
25 U.S.C. § 2710(d)(3)(C). This is exactly what Oklahoma did with the Casino, as
with the other Tribes, in the Compact at issue in this case. The States jurisdiction
is limited to cases arising from prize claims or tort claims and by the amount that
can be sought in exchange for the Casino’s waiver of jurisdiction and immunity.
(See Exhibit 3, Part 6(A)(2). The Casino argues that the IRGA does not allow this
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type of jurisdiction, but the IGRA actually is silent on the issue and is really a
mandate to get the states to enter into a compact with the tribes which was done in
this case. 25 U.S.C. § 2710(d)(3)(A)1. In fact, the IGRA actually provides that
“…class III gaming activity on Indian lands of the Indian tribe shall be fully
subject to the terms and conditions of the Tribal-State compact entered into under
paragraph (3) by the Indian tribe that is in effect.” 25 U.S.C. § 2710(d)(2)(C).
The IGRA allows tribes and states to compact “any other subjects that are directly
or indirectly related to the operation of gaming activities.” See 25 U.S.C. §
2710(d)(3)(C)(vii). Surely the health and safety of Oklahoma citizens while at
these gaming facilities would at least be considered indirectly related to these
operations giving Oklahoma the right to compact for its citizens’ protection.
B. The Casino waived, on a limited basis, both jurisdiction and sovereign immunity under the Compact.
Typically, tribes are immune from suit in state court and such immunity is not
subject to diminution by states, and an Indian tribe is only subject to suit where Congress
has authorized the suit or where the tribe has waived immunity. Kiowa Tribe of Okla. v.
Manufacturing Technologies, Inc., 523 U.S. 751, 756 (1998); 25 U.S.C. § 1326; and
Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, 635 (Nell Jessup Newton et
al. eds., 2005). The main concern is infringing on the right of the Indians to govern
1 See also Doe v. Santa Clara Pueblo, 154 P.3d 644, 647, 648, 656 (N.M. 2007) wherein the New Mexico Supreme Court also supports Oklahoma’s reading of the IGRA. In fact, the court cites the United States Supreme Court who states a compact “is a contract...codified by the Legislature.” Texas v. New Mexico, 482 U.S. 124, 128 (1987).
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themselves. Williams v. Lee, 358 U.S. 217, 223 (1959); Nevada v. Hicks, 533 U.S. 353,
364 (2001); Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997); Montana v. United
States, 450 U.S. 544, 564 (1981). “But this inherent power does not reach beyond what
is necessary to protect tribal self-government or to control internal relations.” Strate v. A-
1 Contractors, 520 U.S. at 459. As for a waiver of immunity, the waiver must be
“unequivocally expressed,” but a waiver of immunity does not require any specific
wording. C & L Enterprises, Inc v. Citizens Band Potawatomi Indian Tribe of Okla., 532
U.S. 411, 422 (2001); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978); and
Dry v. United States, 235 F.3d 1249, 1253 (10th Cir. 2000). On November 6, 2004, the
Comanche Nation signed the Compact created by the Oklahoma State Legislature,
codified in Oklahoma law as 3A O.S. § 281, and approved by Oklahoma through a vote
of the people both Indian and non-Indian. Under Part 6(A)(2) of the Compact, the
Casino unequivocally expresses “[t]he tribe consents to suit on a limited basis with
respect to tort claims subject to the limitations set forth in this subsection and subsection
C of this Part.” (See Exhibit 3). Part 6(C) of the Compact states:
The tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim or prize claim if all requirements of paragraph 9 of subsection A or all requirements of paragraph 11 of subsection B of this Part have been met; provided that such consent shall be subject to the following additional conditions and limitations: 1. For tort claims, consent to suit is granted only to the extent such claim or any award or judgment rendered thereon does not exceed the limit of liability. Under no circumstances shall any consent to suit be effective as to any award which exceeds such applicable amounts. This consent shall only extend to the patron actually claiming to have been injured… (See Exhibit 3).
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In Griffith, the Oklahoma Supreme Court diligently read both the Compact and
Federal law before it finally determined:
In summary, the Tribe claims that "in a court of competent jurisdiction" means "in tribal court only." But the model compact does not say "in tribal court only." The compact says the "tribe consents to suit . . . with respect to tort claims" and the "tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim." The language in the compact could have easily restricted casino patrons' tort remedy to tribal courts, if the tribal government representatives and the state government representatives who proposed the state-tribal gaming legislation directed that those words be used in the measure. "In tribal court only2" could have been typed on the keyboard by whoever typed the proposed compact. It is that simple. The language in other tribal compacts have specified that tort actions against the tribe may be filed in tribal court only. We reject the Tribe's claim that the proponents of the state-tribal gaming legislation really intended to waive tribal immunity "in tribal court only" when the compact does not disclose that intent. We hold that Oklahoma district courts are "courts of competent jurisdiction" as that phrase is used in the Model Tribal Gaming Compact codified at 3A O.S. Supp.2004, § 281. Nothing in this opinion should be taken as a holding that a tribal court is not a "court of competent jurisdiction" or should be taken as eliminating the tribal court as a forum available to a tort claimant if the claimant chooses to file suit in tribal court. Griffith v. Choctaw Casino of Pocola, 2009 OK 51 ¶27-28, ___ P.3d ____.
The Oklahoma Supreme Court also notes that if the tribe wanted exclusive
jurisdiction then it could have put in the words “in tribal court only” in its compact
as other tribes have done. Id. at ¶19 (See also Exhibit 7). Similar logic has been
applied by federal courts in evaluating arbitration awards and enforcement thereof
from state courts. C & L Enterprises, Inc. v. Citizens Band Potawatomi Indian
2 See Exhibit 7 Compact between Oklahoma and the Seneca-Cayuga Tribe of Oklahoma which limits tort remedies to tribal court in Section 8(1) on page 6. Also see endnote 11 of Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ______ P.3d _______ (2009) which lists other tribes who have placed jurisdiction limitations in their compacts.
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Tribe of Okla., 532 U.S. 411 (2001) and Sokaogon Gaming Enterprise Corp. v.
Tushie-Montgomery Assoc. Inc., 86 F.3d 656 (7th Cir. 1996). In fact, the 7th
Circuit held that the phrase “in any court having jurisdiction thereof” was enough
to waive the tribe’s immunity and allow the State court to hear the action. Id. at
661. The language used in that contract is practically the same as the language in
the Compact, and the United States Supreme Court agreed with the 7th Circuit that
the language was enough to waive the tribe’s immunity. C & L Enterprises, Inc. v.
Citizens Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 422 (2001).
The Casino argues that Oklahoma cannot have jurisdiction over Indian country
against Indians because it has not acquired “Public Law 280” jurisdiction, and allowing
the State to obtain jurisdiction in this case would infringe on the Indians rights to self-
govern. However, Public Law 280 is inapplicable in this situation because Oklahoma is
not trying to gain full civil and/or criminal jurisdiction over Indians, but it is merely
acquiring limited jurisdiction as allowed in the IGRA and through the Compact agreed to
by the Casino. Further, acquisition of jurisdiction in this matter does not infringe on the
Comanche Nation’s right to self-govern3. In fact, the action has nothing to do with self
government but is merely a citizen, Muhammad, asserting her constitutional right to have
her civil tort claim heard by a jury of her peers4.
3 Actions that infringe on self government are that which “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana v. United States, 450 U.S. 544, 566 (1981). 4 See Oklahoma Constitution Article 2, Section 6 and Section 19 (right to seek redress for personal injury and right to have jury trial).
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The Casino also argues that even if the IGRA allowed the waiver of immunity,
which it does, then it still did not intend to waive based on Part 9 of the Compact which
states: “This Compact shall not alter tribal, federal or state civil adjudicatory or criminal
jurisdiction.” (See Exhibit 3, Part 9) The Casino suggests this shows their intent to keep
their status, but if that is the “intent” then why did the Casino feel compelled to try and
force claimants to submit to tribal court before it will consider a claim valid? (See Exhibit
2). Furthermore, the Casino has previously waived jurisdiction as to tort claims arising
on “gaming facilities” in its original compact with Oklahoma where it allowed concurrent
jurisdiction. (See Exhibit 6, Section 7(B)). The 1999 compact was then approved by the
Department of the Interior stating “it does not violate the Indian Gaming Regulatory Act
of 1988, Federal law, or our trust responsibility.” (See Exhibit 6, Cover Letter).
Furthermore, the Casino has made Oklahoma courts competent by conferring concurrent
jurisdiction to the State in the 1999 compact (See Exhibit 7, Section 7(B)). Therefore,
Part 9 is just stating that the Casino is not allowing complete jurisdiction to be given to
the State of Oklahoma, rather it is granting limited jurisdiction as laid out in Section 6 of
the Compact. The simple truth is that the Casino agreed on two occasions to the limited
jurisdiction of the State of Oklahoma for tort claims arising during the normal course of
business while operating its gaming facilities within the limitations set forth in the
Compact. This agreement waived the Casino’s immunity and sovereignty bringing it
under Oklahoma’s jurisdiction. Further, this type of transfer of jurisdiction is consistent
with the IGRA and does not infringe on the Casino’s ability to self govern; therefore,
jurisdiction is proper with the State of Oklahoma.
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C. The Oklahoma Supreme Court has already decided this issue so the proper remedy is to take up its ruling to the United States Supreme Court not through Arbitration.
As previously discussed, the Compact is an Oklahoma law based on the following
analysis laid forth by the Oklahoma Supreme Court in Griffith:
In 2004, Oklahoma voters approved casino-style gambling at horse race tracks and in Indian country. The Oklahoma Legislature passed the State-Tribal Gaming Act and sent it to a vote of the people.13 State Question No. 712, Legislative Referendum No. 335 (codified at 3A O.S.Supp.2004, §§ 261-281)(approved November 2, 2004). The Act sets out standards for the gaming machines and authorizes the Oklahoma Horse Racing Commission to implement and enforce the gaming statutes. 3A O.S.Supp.2004, § 262. It provides for the regulation and oversight of Indian gaming in accordance with the model compact. Id. §§ 262(F) and 281, Part 5. It also fully sets forth the "Model Tribal Gaming Compact," offering Indian tribes a nearly exclusive right to operate the covered gaming machines without substantial competition from nontribal entities. Id. § 281. Griffith v. Choctaw Casino of Pocoloa, 2009 OK 51 ¶13, ____ P.3d ______.
It naturally follows that interpretation of state laws are within the province of the state
courts. The Casino has produced affidavits from both Governor Brad Henry and State
Treasurer Scott Meacham stating that the Compact was not meant to alter tribal
jurisdiction, but those are completely irrelevant in this case5. The Compact was drafted
by the State Legislature and voted on by the people making it a law after signed by the
Governor. It seems that evidence of the intent of the Compact and its meaning should
come from those who drafted the document for it to be relevant and related to a decision
on the issue. Furthermore, interpretation of the laws drafted by the State Legislature is a
job historically left to the courts not the Governor. In this instance, the Oklahoma
5 Oklahoma Constitution Article 6, Section 8 (Governor’s powers) and Artilce 4, Section 1(Powers are to remain separate).
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Supreme Court has ruled on the interpretation of the Compact on three separate occasions
taking full consideration of Federal law in those rulings. In Cossey, the Oklahoma
Supreme Court held that district courts are “courts of competent jurisdiction” and that the
Tribe’s sovereign interests are not implicated to require tribal court jurisdiction. See
Cossey v. Cherokee Nation Enterprises, 2009 OK 6 ¶38, _____ P.3d ______. In Griffith,
the Court held again that district courts are “courts of competent jurisdiction” as that
phrase is commonly defined in both federal and state common law making jurisdiction
shared between State, Federal, and Tribal courts. See Griffith v. Choctaw Casino of
Pocola, 2009 OK 51 ¶24-25, 28, _____ P.3d ______. Finally in Dye, the Court backed
up its decision in Griffith and reaffirmed its position that state courts are “courts of
competent jurisdiction. See Dye v. Choctaw Casino of Pocola, 2009 OK 52 ¶9, _____
P.3d ______. Therefore, it is the state court’s job to interpret Oklahoma law and it has
done so in three different cases concerning the very issue raised in this case.
The problem is that the Indian tribes do not agree with these rulings, but “…a
federal district court cannot review matters actually decided by a state court, Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415 (1923), nor can it issue ‘any declaratory relief that
is “inextricably intertwined” with the state court judgment." Facio v. Jones, 929 F.2d
541, 543 (10th Cir.1991). Cited in Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d
1163, 1169 (10th Cir. 1991). The Oklahoma Supreme Court has already decided that the
Tribes have waived jurisdiction on a limited basis pursuant to the Compact as allowed by
the IGRA; therefore, the only redress available on the issue is through the United States
Supreme Court. See 28 U.S.C. § 1257. It seems logical then that the arbitration award,
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which was obtained after Cossey, Griffith, and Dye, cannot overrule the Oklahoma
Supreme Court’s decision. Muhammad agrees that the arbitration award would be
binding as to her case if the arbitration had been done before the Oklahoma Supreme
Court entered its ruling; however, the tribes waited and let the Oklahoma Supreme Court
hand down three different rulings on the interpretation issue before getting an arbitration
award on an issue that was already decided. Therefore, the arbitration award should be
considered as only an opinion by a third party rather than a binding judgment.
2. Muhammad has stated a claim on which relief can be granted.
A. Muhammad did exhaust her tribal remedies under the Compact.
The Casino argues that Muhammad failed to exhaust her tribal remedies because
she did not show up to the “Determination Hearing.” Further, the Casino argues that
Muhammad’s failure to show up at the hearing constituted a voluntary withdrawal of her
claim which means the claim was never denied. Without a denial, the Casino argues a
lawsuit violates the Compact. The procedures for filing a tort claim are set forth in the
Compact in Part 6. (See Exhibit 3). The process is started in Part 6(A)(4) by filing a
written tort claim notice to the enterprise which was done twice by Muhammad since the
original notice was not accepted. (See Exhibits 1 & 2). The original tort notice contained
all the requirements of Part 6(A)(6) to the Compact and was signed by Muhammad’s
representative. (Exhibit 1). The Casino then sent a letter with its tort claim form
informing Muhammad that the claim would not be considered unless it was submitted
through the enclosed form. (Exhibit 2). Muhammad reluctantly complied since the one
year limitation period, as laid out in Part 6(A)(4) of the Compact, was about to run.
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Then, the Casino, through its counsel, requested Muhammad and her witness, Umar,
submit to depositions to which they complied. Muhammad further provided all medical
bills, medical records, and evidence supporting her claims to the other side and even
provided them with a medical authorization. The Casino then proceeded to take almost a
year and a half evaluating the claim and asking for extensions of the resolution period but
never once made any type of determination.
It should be noted that during this time, the Casino was requesting a hearing to
decide this matter which it labeled a “Determination Hearing.” Muhammad refused to
attend the hearing by notifying the Casino’s counsel in a letter dated June 5, 2009. (See
Exhibit 5). In that letter, Muhammad laid out to the Casino that she was not accepting
tribal court jurisdiction; that the Casino already has all the relevant information needed to
make its determination; and that the Compact does not provide for this type of hearing.
In Part 6(A)(8) of the Compact, the Tribe is required to “…promptly review, investigate,
and make a determination regarding the tort claim.” (See Exhibit 3). That did not
happen in this case so it was actually the Casino who refused to follow the Compact.
Based on that refusal, Muhammad deemed her claim denied and proceeded with filing
this action.
As part of the Notice of Removal, the Casino provided this Court with its Exhibit
4 which purports to be Tort Regulations as promulgated by the Comanche Nation
Gaming Commission. In those regulations, Section 308 requires a Determination
Hearing where the claimants attendance is mandatory; however, that requirement is not
listed in the Compact and Part 6(A)(10) states “…that this procedure is the exclusive
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method of making a tort claim…” (See Exhibit 3). Under the IGRA, “…class III gaming
activity on Indian lands of the Indian tribe shall be fully subject to the terms and
conditions of the Tribal-State compact entered into under paragraph (3) by the Indian
tribe that is in effect.” 25 U.S.C. § 2710(d)(2)(C). So even the IGRA binds the Casino to
follow the Compact’s procedures rather than allowing them to go and promulgate its own
rules. Therefore, it is the Casino who is not following the Compact while Muhammad
has followed and complied with all the requirements set forth in the Compact. In
conclusion, Muhammad correctly filed for judicial action after her claim was deemed
denied since the Casino has refused to make a prompt determination in this matter.
B. The Tort Claim Form signed by Muhammad consenting to tribal jurisdiction is an adhesion contract and also violates the Compact.
Oklahoma law defines an adhesion contract as the following:
[A]n adhesion contract is a standardized contract prepared entirely by one party to the transaction for the acceptance of the other. These contracts, because of the disparity in bargaining power between the draftsman and the second party, must be accepted or rejected on a "take it or leave it" basis without opportunity for bargaining--the services contracted for cannot be obtained except by acquiescing to the form agreement.” Max True Plastering Co. v. U.S. Fidelity and Guar. Co., 912 P.2d 861, 864 (Okla. 1996).
The language at the end of the tort claim form is essentially an adhesion contract. It is a
standardized form that claimants are “required” to fill out. In fact, the Casino sent a letter
to Muhammad informing her that the claim is not valid unless she followed the
Comanche Nation’s procedures. (See Exhibit 2, Letter from the Casino). Further, a
separate document was provided entitled a “NOTICE” that states “CLAIMANTS THAT
DO NOT ADHERE TO THESE PROCEDURES SHALL HAVE THEIR CLAIMS
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FOREVER BARRED.” (See Exhibit 2, NOTICE). Also in the Notice, the Casino states
that a proper tort claim must contain “Consent to the civil jurisdiction of Comanche
Nation and its Tribal Court” and that “[A] claim of injury to your person or property must
be filed on an official ‘Tort Claim’ form…” (See Exhibit 2, NOTICE). This is very type
of action that Oklahoma law deems as an adhesion contract. One side, the Casino, is
forcing the other party, Muhammad, to sign away jurisdiction before her claim will be
considered valid and honored. Furthermore, the Compact already sets out in detail what a
tort notice must contain and that it is the “exclusive” method with no mention of forcing
claimants to acquiesce to tribal jurisdiction. (See Exhibit 3).
Also, Muhammad signed the form because at the time of signing the jurisdiction
clause did not alter or affect her rights. The Oklahoma Supreme Court had recently held
in Muskogee Gaming Commission v. The Honorable Mary Fitzgerald, District Judge,
No. 104,726 (an unpublished opinion) that tribal courts had exclusive jurisdiction to
decide tort claims filed against them. In fact, Muhammad’s attorneys represented the
Plaintiff in that action and argued, without prevail, a very similar argument as made in
Cossey. Then, the Oklahoma Supreme Court decided Cossey v. Cherokee Nation
Enterprises, LLC. approximately one year later which allowed tort claimants to bring
their actions in State court. At this time, the tort form the Casino essentially forced
Muhammad to sign was impairing her rights; therefore, a letter was sent to the Casino’s
counsel advising the Casino that Muhammad would not be acquiescing to tribal
jurisdiction pursuant to the Supreme Court’s ruling. (See Exhibit 4). In conclusion, the
tort form, which is in violation of the Compact, was signed by Muhammad because the
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Casino refused to acknowledge the claim without its signed form and Muhammad’s
rights were not affected at the time of signing since the Cossey v. Cherokee Nation
Enterprises, LLC. decision was not handed down until one year later; therefore, the
jurisdiction clause should be deemed null and void.
Conclusion
Muhammad filed her action to recover for an injury caused by the Casino in
negligently maintaining its premises. The Casino has filed its Motion to Dismiss
claiming essentially that state courts cannot and do not have jurisdiction over Indian
nations. Generally speaking, the Casino’s assertion is true; however, Congress can
authorize States to acquire and Tribes can waive their immunity and consent suit. Really,
both have happened in this case. As previously discussed, the Indian Gaming Regulatory
Act allows for jurisdiction shifting limited to the regulation of Class III gaming which has
happened in this case. Also, the Casino agreed to shift jurisdiction by and through the
Compact which says the Casino consents to suit in a court of competent jurisdiction. The
Comanche Nation has already made Oklahoma a court of competent in its 1999 compact
with the State. Furthermore, this action is a tort claim brought in an effort to recover for
personal injuries. Tort claims are historically regulated by the States not the Federal
Government. Therefore, Oklahoma courts have subject matter jurisdiction in this action.
The Casino makes a last ditch effort to claim that even if Oklahoma courts have subject
matter jurisdiction that the claim should still be made in tribal court. The Casino argues
that Muhammad failed to comply with its tort regulations and acquiesced to tribal court
jurisdiction. However, Muhammad did comply with the Compact’s requirements, which
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Case 5:09-cv-00968-D Document 9 Filed 09/28/09 Page 20 of 22
is the exclusive procedure to follow, and she informed the Casino that she would not
submit to tribal court jurisdiction once Muhammad learned there was another avenue in
which to pursue her claim. Therefore, the Casino’s Motion to Dismiss should be
overruled and Muhammad’s case should be allowed to continue.
WHEREFORE, the Plaintiff prays this Court overrule the Defendant’s Motion to
Dismiss together with costs, attorney fees, and any such relief this Court deems just and
reasonable.
Respectfully submitted,
/s Jeremy D. Looper__________ Jason B. Reynolds, OBA No. 18132 Jeremy D. Looper OBA No. 21272 210 SE 89th Street Oklahoma City, OK 73149 (405) 721-9500 Telephone (405) 721-9503 Facsimile ATTORNEYS FOR PLAINTIFF
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CERTIFICATE OF SERVICE
I hereby certify that on September 28, 2009, I electronically transmitted the attached document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Klint A. Cowan William R. Norman, Jr. James M. Burson Hobbs, Straus, Dean & Walker, LLP 117 Park Avenue, Second Floor Oklahoma City, OK 73102 Telephone: (405) 602-9425 Facsimile: (405) 602-9426 Email: [email protected] James G. Wilcoxsen Wilcoxsen & Wilcoxsen P.O. Box 357 Muskogee, OK 74402 Telephone: (918) 683-6696 Facsimile: (918) 682-8605 Email: [email protected] Attorneys for Defendant
s/Jeremy D. Looper________ Jeremy D. Looper
Case 5:09-cv-00968-D Document 9 Filed 09/28/09 Page 22 of 22