in the united states district court for the western … · 2010-10-01 · muhammad . september 28,...

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

Case 5:09-cv-00968-D Document 9 Filed 09/28/09 of 22

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

2


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

3


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

4


State Question No. 712, Legis. Referendum No. 335 (Nov. 2, 2004).................................6

5


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.

6


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

7


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

8


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).

9


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).

10


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.

11


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).

12


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.

13


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).

14


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,

15


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.

16


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

17


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

18


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

19


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

20


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

21


22

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


mailto:[email protected]

mailto:[email protected]

in the united states district court for the western … · 2010-10-01 · muhammad . september 28,...

Documents