Cossey v. Cherokee Nation Enterprises, LLC

2009 OK 6, 212 P.3d 447, 2009 Okla. LEXIS 6, 2009 WL 146685

• Court: Supreme Court of Oklahoma
• Decided: January 20, 2009
• Docket: 105,300
• Status: Published

Opinions

OPINION

WATT, J.;:

T 1 We are asked to determine whether the District Court of Rogers County, Oklahoma (state court), is a "court of competent jurisdiction" as that term is used in the "Tribal Gaming Compact Between the Cherokee Nation and the State of Oklahoma" (the Compact), executed on November 16, 2004. The Compact is based on the Model Tribal Gaming Compact, 3A 0.8. Supp.2004 $ 281, which is part of the State-Tribal Gaming Act, 3A 0.8. Supp.2004 §§ 261-282. The parties to the Compact are the Cherokee Nation (Tribe) and the State of Oklahoma. We hold that the state court is a "court of competent jurisdiction" as that term is used in the Compact executed by the parties.

I. FACTS AND PROCEDURAL HISTORY

1 2 Plaintiff/Respondent Loyman Cossey, a non-Indian,¹ sued Defendants/Petitioners Cherokee Nation Emterprises, LL.C., formerly known as Cherokee Nation Enterprises, Inc., and Cherokee Nation Enterprises, Inc., (collectively, CNE), in state court for personal injuries he received on October 19, 2005, while he was a customer at the Cherokee Casino in Roland, Oklahoma. CNE appeared specially and moved to dismiss for lack of subject matter and personal jurisdiction, pursuant to 12 O.S8. Supp.2004 § 2012(b)(1), (2), and (F)(3). The court denied the motion to dismiss. On January 7, 2008, this Court granted the petition for cer-tiorari filed by CNE for review of the court's order as a certified interlocutory order pursuant to 12 0.8.2001 § 952(b)(3).²

II. STANDARD OF REVIEW

T8 We review a question of law. When an assigned error is one of law, the standard of review is de novo, a non-deferential, plenary and independent review of the trial court's legal ruling. Tibbetts v. Sight 'n Sound Appliance Centers, Inc., 2003 OK 72, 77 P.3d 1042; Christian v. Gray, 2003 OK 10, 65 P.3d 591.

IH. IDENTIFICATION OF PARTIES AND THEIR CONTENTIONS

T4 CNE contends the Cherokee Nation tribal court is the only court of competent jurisdiction to hear a claim which arose in Indian Country against the Tribe. In addition to its argument that it is entitled to assert the immunity of the Cherokee Nation, CNE contends the Compact provides only a limited, conditional waiver of that immunity. CNE further argues that because the state has not complied with federal law, as discussed in Part IV., infra, the tribal court is the only court with "civil adjudicatory jurisdiction" in Indian Country and thus is the only "court of competent jurisdiction" to consider Cossey's tort claim. CNE does not dispute the fact that the Tribe consented to suit under the Compact with respect to tort claims but argues that there are limitations on that consent and on the extent of its liability.³

T5 Cossey, a non-Indian, contends the Tribe is not a party to this suit ⁴ and that CNE may not assert the Tribe's sovereign immunity. He also argues that the doctrine of sovereign immunity was never meant to protect entities conducting "non-tribal business" which is unrelated to the activity of furthering tribal self-government, citing Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). He also contends the state courts have at least concurrent jurisdiction with tribal courts over his tort claim because the Tribe consented to suit under the Compact which is derived from the Oklahoma Statutes.

T6 While we agree with Cossey, and we hold, that the Tribe, in conducting "non-tribal business," is not entitled to sovereign immunity from suit in state court in this case,⁵ we disagree that state court jurisdiction over his tort claim is derived totally from the Tribe's consent to suit under the Compact.

IV. STATE COURT JURISDICTION OF CLAIMS ARISING ON INDIAN LAND AND THE EFFECT OF "PUBLIC LAW 280"

17 To support its contention that state courts have no jurisdiction over tort claims under the Compact, CNE refers us to Part 9 of the Compact. It provides the following:

This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction. (emphasis added).

18 CNE contends the above section does not provide Oklahoma courts with jurisdiction over claims in Indian Country. It contends Oklahoma had not acquired civil adjudicatory jurisdiction over such claims before the Compact was executed because the State has failed to comply with federal law enacted in 1953 known as "Public Law 83-280" (PL-280).⁶ When Oklahoma entered the Union, our constitution provided that the State of Oklahoma relinquished any right to control Indian tribes or enter upon tribal lands.⁷ PL-280 allowed states such as Oklahoma to take affirmative action through constitutional amendment or enactment of a statute to assume criminal and/or civil jurisdiction over "Indian Country." In 1968, PL-280 was amended as part of the Indian Civil Rights Act (ICRA). See 25 U.S.C. §§ 1821-1826; PL. 90-284, Title IV, $ 401 (1968); 82 Stat. T7, codified, and as amended, 25 U.S.C. §§ 1301-1303, in 1982 and thereafter. It provided for the states' assumption of civil jurisdiction over claims arising in Indian Country but required the "consent of the tribe occupying the particular Indian country." See 25 U.S.C. § 1822(2)⁸

19 This Court acknowledged Oklahoma did not take steps to assume jurisdiction under the previous PL-280 in Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority.⁹ We held that "[b]ecause Oklahoma did not take the appropriate steps to take jurisdiction under PL-280, the proper inquiry to be made in this case must focus upon the congressional policy of fostering tribal autonomy in the light of pertinent U.S. Supreme Court jurisprudence." Lewis, 896 P.2d at 507, n. 21 (citation omitted). CNE contends the consent under the Compact is ineffective because there was no vote taken by the entire tribal membership, as required by Kennerly v. District Court of Ninth Judicial District of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507.¹⁰ We disagree.

1 10 Kenmerly and the cases upon which it relied are distinguishable. There was no federal statute, such as the IGRA, containing specific requirements for approval by the Tribe's governing body to engage in Class III gaming. Moreover, the IGRA also provides that such gaming is to be subject to state law, i.e., the Model Tribal Gaming Compact, 3A 0.8. Supp.2004 § 281, which is part of the State-Tribal Gaming Act, 3A O.S. Supp.2004 §§ 261-282. See § 2710(d)@)(C) of the IGRA which provides:

(C) Effective with the publication under subparagraph (B) of an ordinance or resolution adopted by the governing body of an Indian tribe that has been approved by the Chairman under subparagraph (B), class III gaming activity on the 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) ¹¹ by the Indian tribe that is in effect. (emphasis added).

¶ 11 See also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), which held PL-280 is not independently sufficient to confer jurisdiction on a State to extend the full range of regulatory authority over Indians and reservations. We hold that Public Law 280 is not an impediment to state court jurisdiction and is, in fact, inapplicable to this case.

V. TRIBAL COURT'S JURISDICTION UNDER THE INDIAN GAMING REGULATORY ACT

112 We next consider whether Congress, through the enactment of the IGRA, enlarged tribal-court jurisdiction. The IGRA provides at § 2710(d)B)(C) a list of provisions which any negotiated tribal-state compact "may" include. "May" is ordinarily construed as permissive, while "shall" is ordinarily construed as mandatory. See Osprey L.L.C. v. Kelly-Moore Paint Co., Inc., 1999 OK 50, 984 P.2d 194; Shea v. Shea, 1975 OK 90, 537 P2d 417. Section 2710(d)(8)(C) provides in part:

(C) Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to-

(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;

(i) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforeement of such laws and regulations;. ... (emphasis added).

113 The Compact here does not include any such allocation of jurisdiction. Instead, the Compact provides only: "This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction" and that tort claims may be heard in a "court of competent jurisdiction." The Tribe could have, but did not, include such jurisdictional allocation in this Compact. Neither the IGRA nor the Compact as approved enlarged the Tribe's jurisdiction.

VIL. COURT OF COMPETENT JURISDICTION AND DUAL SOVEREIGNTY

T14 In determining whether Oklahoma courts are "courts of competent jurisdiction" in this case, we address subject matter jurisdiction and the sovereign immunity of the Tribe as a defense to being sued in state court. We are concerned with tribal and state court jurisdiction over the activities of non-Indians on "Indian lands.¹²

115 A "court of competent jurisdiction" is one having jurisdiction of a person and the subject matter and the power and authority of law at the time to render the particular judgment. See Ex Parte Plaistridge, 1918 OK 352, 68 Okla. 256, 173 P. 646; Ex Parte Justus, 1909 OK CR 132, 104 P. 933, 3 Okla.Crim. 111. See also Choctaw County Excise Board v. St. Louis-San Francisco Railway Company, 1969 OK 110, 456 P.2d 545.

€16 While the ultimate issue on remand will be the tribe's liability for the injuries Cossey sustained at the casino, we first consider Cossey's status as a non-Indian citizen of Oklahoma and his right of access to Oklahoma courts to seek a remedy for his injuries. See Okla. Const., Art. 2, § 6.¹³ Our constitution recognizes that the state of Oklahoma is an inseparable part of the federal union and that the United States Constitution is the supreme law of the land. Okla. Const., Art. 1, § 1.¹⁴ When our constitution was revised in 1967, existing courts were abolished, and the district courts were designated to succeed all previous courts on the effective date, and with that designation, the "jurisdiction, functions, powers and duties [were] transferred to the respective District Courts." Okla. Const., Art. 7, § 7(b). District courts were vested with "unlimited original jurisdiction of all justiciable matters ... and such powers of review of administrative action as may be provided by statute." Okla. Const., Art. 7, § 7(a). Each district court succeeded to and assumed "jurisdiction of all causes, matters and proceedings then pending, with full power and authority to dispose of them and to earry into execution or otherwise to give effect to all orders, judgments and decrees theretofore entered by the predecessor courts." Okla. Const., Art. 7, § 7(c).

{17 The Compact is derived from the Oklahoma Statutes. It incorporates Oklahoma's Governmental Tort Claims Act (GTCA) into its provisions.¹⁵ The district courts of Oklahoma thus have subject matter jurisdiction of any claim arising under the GTCA, including one which originates under the Compact.

18 In Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001),¹⁶ the Supreme Court recognized the authority of state courts as courts of "general jurisdiction" and further acknowledged our system of "dual sovereignty" in which state courts have concurrent jurisdiction with federal courts, absent specific Congressional enactment to the contrary. Citing Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), the Court stated:

We turn next to the contention of respondent and the Government that the tribal court, as a court of general jurisdiction, has authority to entertain federal claims under § 1988. It is certainly true that state courts of 'general jurisdiction can adjudicate cases invoking federal statutes, such as § 1983, absent congressional specification to the contrary. 'Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.... That this would be the case was assumed by the Framers, see The Federalist No. 82, pp. 492-498 (C. Rossiter ed.1961). Indeed, that state courts could enforce federal law is presumed by Article III of the Constitution, which leaves to Congress the decision whether to create lower federal courts at all. This historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts.

Nevada v. Hicks, 533 U.S. at 366-367, 121 S.Ct. at 2313-2314 (citation omitted) (emphasis added).

{19 The argument was made by the Respondent tribal member and the Government as amicus curiae in Nevada v. Hicks that the tribal court, as a court of "general jurisdiction," had jurisdiction over his § 1988 civil rights claim against state officials. The Supreme Court disagreed, explaining that state court jurisdiction is general because it can hear all subjects of litigation between parties within its jurisdiction. In distinguishing state and tribal courts, the Court stated:

Tribal courts, it should be clear, cannot be courts of general jurisdiction in this sense, for a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction ....

Nevada v. Hicks, 533 U.S. at 367, 121 S.Ct. at 2314.

120 The Court concluded that tribal authority to regulate state officers in executing process related to state law violations outside the reservation is not essential to tribal self-government or internal relations, ie., "the right to make laws and be ruled by them." Nevada v. Hicks, 533 U.S. at 364, 121 S.Ct. at 2313; see also Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251. Conversely, the Court held the State had considerable interest in the execution of process, "and even when it relates to Indian-fee lands ¹⁷ it no more impairs the tribe's self-government than federal enforcement of federal law impairs state government." Id. Because the tribe lacked legislative authority to regulate the state officials' ability to investigate off-reservation state law violations, it also lacked civil adjudicative authority to hear Respondent's claim that the officials violated tribal law in performing their duties. Moreover, the Tribes could not identify any authority to adjudicate Respondent's § 1988 claim. Tribal court jurisdiction does not exceed tribal regulatory jurisdiction "[albsent congressional direction enlarging tribal-court jurisdiction...." Strate v. A-1 Contractors, 520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997); see also Nevada v. Hicks, 533 U.S. 353, 357-358, 121 S.Ct. 2304, 2309, 150 L.Ed.2d 398 (2001). Thus, a tribal court is not a court of general jurisdiction. Its jurisdiction could be asserted in matters involving non-Indians only when their activities on Indian lands are activities that may be regulated by the Tribe.

VIL SOVEREIGN INTERESTS AND SOVEREIGN IMMUNITY

In order to determine whether the state court may assert jurisdiction over the tribe in a case brought by a non-Indian, we must consider the nature of the activities of this particular non-Indian plaintiff under these facts and the manner in which these activities affect the tribe's "inherent tribal sovereignty," ie., its power to self-govern and control its internal tribal relations. Indian tribes retain their inherent power to punish tribal offenders, determine tribal membership, regulate domestic relations among members, and prescribe rules of inheritance for members. Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 1258-59, 67 L.Ed.2d 493 (1981). Such powers refer to a Tribe's "inherent sovereign powers," the powers a tribe enjoys apart from express provision by treaty or statute. Strate v. A-1 Contractors, 520 U.S. 438, 445-446, 117 S.Ct. 1404, 1416, 137 L.Ed.2d 661 (1997). But this inherent power does not reach beyond what is necessary to protect tribal self-government or to control internal relations. See Strate v. A-1 Contractors, 520 U.S. at 459, 117 S.Ct. at 1416;¹⁸ Montana, 450 U.S. at 564, 101 S.Ct. at 1257-58.¹⁹ A tribe's exercise of such power is inconsistent with its dependent status and cannot survive without an express congressional delegation of power to the tribes. Montana, 450 U.S. at 564, 101 S.Ct. 1245, citing Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973), Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); and McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).

122 In Montana, the United States Supreme Court announced a general rule in addressing the sovereign powers of a tribe. Generally, tribes have no authority over the activities or conduct of nonmembers of the tribe. This general rule contained two exceptions which will, if found to be present under the facts, give a tribe the power to regulate the activities in question under its inherent sovereign powers over non-Indians on their reservations, even on non-Indian fee lands:

A tribe may regulate through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.

A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on the lands within its reservation 'when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258.

123 If non-Indians' activities fall within the Montana exceptions, the tribe may regulate those activities under its sovereign powers. -If the tribe has power to regulate, or legislate, the activities of the Plaintiff non-members, the tribe may also have civil adjudicatory authority, or jurisdiction, over the non-members' activities in tribal court. However, without that power to regulate non-members' activities, the Tribe may not assert civil jurisdiction over them in tribal court. See Strate, 520 U.S. at 453, 117 S.Ct. at 1413; Nevada v. Hicks, 533 U.S. at 374, 121 S.Ct. at 2318; and Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., — U.S. —, 128 S.Ct. 2709, 2720, 171 L.Ed.2d 457 (2008), (see discussion, infra ). As pertinent to the instant case, a tribe would also have immunity from being sued in state court. As we noted recently in Bittle v. Bahe, "It is the sovereignty that gives rise to the immunity from private suit in order to protect the dignity of the sovereign.²⁰

124 We must determine whether Cossey's activities come within those which may be regulated by the tribe as a sovereign entity. We must, therefore, consider whether his activities come within the definition of the tribe's sovereign interests, the Montana exceptions, or a federal statute or treaty enlarging the Tribe's powers.

125 Under Montana, the tribes' retained inherent powers of self-government involve only the relations among members of a tribe. It is consistent with the "dependent status" of tribes; it is necessarily inconsistent with their freedom to determine their "external relations.²¹

T26 Under the Supreme Court's newest pronouncement, Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., — U.S. —, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008), tribal members (the Longs) brought a discrimination claim in tribal court against the bank (Plains). They alleged Plains did not give them an equal opportunity to buy certain fee land which the Longs leased from Plains. The Longs attempted to enforce a tribal tort law which set limits on the sale of fee lands by nonmembers, even to the extent of regulating the substantive terms on which the Bank could offer it for sale. Acknowledging this was a form of regulation, the Longs argued that it was nevertheless authorized by the first Montana exception.

127 The Court held that Montana does not permit tribes to regulate the sale of non-Indian fee land. The particular land had ceased being part of the tribe's land many years earlier. Instead, it explained that Montana and its progeny "permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe's sovereign interests." Plains, 128 S.Ct. at 2721 (emphasis in original). The Court further stated:

Montana expressly limits its first exception to the 'activities of nonmembers, ... allowing these to be regulated to the extent necessary 'to protect tribal self-government [and] to control internal relations,'.... (Montana does not grant a tribe unlimited regulatory or adjudicative authority over a nonmember. Rather, Montana limits tribal jurisdiction under the first exception to the regulation of the activities of nonmembers' (internal quotations omitted; emphasis added)).

Plains, 128 S.Ct. at 2721.

28 The Court held that the sale of such land did not affect the Tribe's sovereign interests. The Court stated the logic of Montana :

[CJertain activities on non-Indian fee land (say, a business enterprise employing tribal members) or certain uses (say, commercial development) may intrude on the internal relations of the tribe or threaten tribal self-rule. To the extent they do, such activities or land uses may be regulated. See Hicks, supra, at 361, 121 S.Ct. 2304 ("Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them"). Put another way, certain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect the tribe as to justify tribal oversight. While tribes generally have no interest in regulating the conduct of nonmembers, then, they may regulate nonmember behavior that implicates tribal governance and internal relations.

Plains, 128 S.Ct. at 2723 (emphasis added).

1 29 The Plains Court stated that the regulations it had approved under Montana "all flow directly from these limited sovereign interests." 128 S.Ct. at 2723.²² However, the Court held that the "regulation of the sale of non-Indian fee land, unlike the above, cannot be justified by reference to the tribe's sovereign interests." 128 S.Ct. at 2728. The land had already been alienated from the tribal trust; it had ceased being tribal land. Id. The Court stated, at 128 S.Ct. at 2724:

Not only is regulation of fee land sale beyond the tribe's sovereign powers, it runs the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent. Tribal sovereignty, it should be remembered, is 'a sovereignty outside the basic structure of the Constitution.' United States v. Lara, 541 U.S. 193, 212, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (KENNEDY, J., concurring in judgment). The Bill of Rights does not apply to Indian tribes. See Talton v. Mayes, 163 U.S. 376, 382-885, 16 S.Ct. 986, 41 L.Ed. 196 (1896). Indian courts 'differ from traditional American courts in a number of significant respects" Hicks, 533 U.S., at 383, 121 S.Ct. 2304 (SOUTER, J., concurring).

T30 The regulation imposed on nonmembers "must stem from the tribe's inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations." Plains, 128 S.Ct. at 2724, citing Montana, 450 U.S. at 564, 101 S.Ct. 1245. Without the logic of Plains, which incorporates the general rule of Montana and its exceptions, Cossey and all other non-Indians would unknowingly subject themselves to tribal regulation and, thus, to tribal court jurisdiction without their consent merely by entering a casino in Indian Country. Moreover, without Plains and Mon-tama, non-Indians could unwittingly waive their rights to seek relief in the state courts of Oklahoma.

181 Citing Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), the Plains Court referred to the general proposition under Mon-tama that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. "[Elfforts by a tribe to regulate nonmembers, especially on non-Indian fee land, are (presumptively invalid," Atkinson, supra, at 659, 121 S.Ct. 1825. The burden rests on the tribe to establish one of the exceptions to Montana's general rule that would allow an extension of tribal authority to regulate nonmembers on non-Indian fee land. Atkinson, 532 U.S., at 654, 121 S.Ct. 1825." Plains, 128 S.Ct. at 2720. In the present case, we find the Tribe has not met its burden of establishing that it falls within one of Montana's exceptions.

I 32 The Court also discussed the status of the land at issue as it related to the regulation of nonmember activity on the land. In Plains, this was fee land, i.e., land which had been previously alienated from tribal lands within the reservation. The Court approvingly quoted from Justice Souter's concurring opinion in Nevada v. Hicks, stating, "The status of the land is relevant 'insofar as it bears on the application of ... Montana's exceptions to [this] case."" Nevada v. Hicks, 533 U.S. at 376, 121 S.Ct. 2304 (SOUTER, J., concurring). Although Plains did not specifically quote further from Justice Souter's concurring opinion, we find it to be instrue-tive in the instant ease, in which a non-Indian defendant was injured on trust land. It provides, in part:

Montana applied this presumption against tribal jurisdiction to nonmember conduct on fee land within a reservation; I would also apply it where, as here, a nonmember acts on tribal or trust land, and I would thus make it explicit that land status within a reservation is not a primary jurisdictional fact, but is relevant only insofar as it bears on the application of one of Mon-tama's exceptions to a particular case....

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After Strate, it is undeniable that a tribe's remaining inherent civil jurisdiction to ad-judieate civil claims arising out of acts committed on a reservation depends in the first instance on the character of the individual over whom jurisdiction is claimed, not on the title to the soil on which he acted. The principle on which Montana and Strate were decided (like Oliphant[ v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) ] before them) looks first to human relationships, not land records, and it should make no difference per se whether acts committed on a reservation occurred on tribal land or on land owned by a nonmember individual in fee. It is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact.

Nevada v. Hicks, 533 U.S. 353, 375-376, 381-82, 121 S.Ct. 2304, 2318-19, 2322 (SOUTER, J., concurring). In a footnote following the above excerpt Justice Souter explained that land status is not irrelevant to a proper application of Montana, only that it is not determinative.

T 33 Thus, it is the regulation of the activities of non-members on the land, rather than the resale of the land, which the Plains Court found to be the key point with regard to the tribe's sovereign interests. 128 S.Ct. at 2724. In fact, the Court stated that in none of its previous cases has it found that Montana authorized a tribe to regulate the sale of non-Indian fee land. "Rather, our Montana cases have always concerned nonmember conduct on the land." Plains, 128 S.Ct. at 2722, citing Hicks, 533 U.S., at 359, 121 S.Ct. at 2309-10 (citations omitted).

VIII. COSSEY'S ACTIVITIES IN INDIAN COUNTRY

[ 34 In the present case, the land on which the casino is located is not "fee lands," but "land held in trust" for the Tribe.²³ As stated above, such land qualifies as "Indian land" for purposes of the IGRA. However, the difference in the status of the land does not take this case out of the Montana rule.

135 Cossey was on the casino premises as an invitee of the Tribe. As such, the Tribe had the duty to exercise reasonable care to keep the premises in a reasonably safe condition and to warn Cossey of conditions which were in the nature of hidden dangers, traps, snares or pitfalls. See Martin v. Aramark Services, Inc., 2004 OK 38, 92 P.3d 96. However, the Tribe's obligation to compensate Cossey for his injuries, upon proper proof, has not been in dispute by these parties.²⁴ The dispute centers around whether the state court has jurisdiction over his claim.

136 We examine whether Cossey's activity, ie., visiting the casino as an invitee on Indian lands, is an activity which the Tribe can regulate under its "inherent sovereign interests." If such activity is one which comes within the Montana exceptions, the Tribe can regulate it and assume civil adjudicatory jurisdiction over him in tribal court.

T37 Cossey entered into no consensual relationship with the Tribe "through commercial dealing, contracts, leases, or other arrangements" by entering the casino as a customer. The Compact represents a consensual relationship between the Tribe and the State, but Cossey was not a party to it. Moreover, his presence at the casino on reservation lands was not conduct which "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." See Montana, 450 U.S. at 566, 101 S.Ct. at 1258. Neither Montana exception helps the Tribe in this case.

IX. CONCLUSION

138 The Oklahoma district court is a "court of competent jurisdiction" to hear Cossey's tort claim. The Tribe's sovereign interests are not implicated so as to require tribal court jurisdiction under the exceptions in Montana, supra. Cossey's right to seek redress in the Oklahoma district court is guaranteed by our Constitution. Moreover, the United States Supreme Court has upheld Montana and the cases following it, indicating the Court's continued recognition of the need to protect the sovereign interests of Indian tribes, while acknowledging the plenary powers of the states to adjudicate the rights of their citizens within their borders.

139 The order of the trial court denying the Tribe's motion to dismiss is affirmed. This case is remanded to the trial court for further proceedings in accordance with the views expressed in this opinion.

€40 The remaining arguments raised by the parties are non-persuasive and will not be considered.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TAYLOR, V.C.J., OPALA, WATT, WINCHESTER, JJ., concur. COLBERT, J., concurring specially. EDMONDSON, C.J., KAUGER, J., concur in part, dissent in part. HARGRAVE, REIF, JJ., dissent.

1 . The terms "non-Indian" and "nonmember" designate a person who is not a member of the Cherokee Nation for purposes of this opinion.

2 . The state court ruled, inter alia, that Cherokee Nation Enterprises, L.L.C. is subject to the jurisdiction of the state court and that the state court is a "court of competent jurisdiction" as used in the Compact. The court also found that Cherokee Nation Enterprises, LL.C. is owner and operator of the casino which is open to tribal members and non-tribal customers. Further, the state court ruled that CNE is not entitled to assert the sovereign immunity of the Tribe, "as it is a separate corporate entity from the Cherokee Nation Indian Tribe."

3 . Liability for tort claims under the Compact is limited to $250,000.00 per person and $2,000,000.00 per occurrence. This is reflected in the liability insurance policy which CNE was required to obtain. CNE additionally argues that the right to sue is conditioned on following the Compact's tort claim procedure by filing notice of the injury and receiving a denial of the claim. In the present case it is undisputed that Cossey followed the claim procedure and that the claim was deemed denied.

4 . As a threshold issue, we address Cossey's contention that the Tribe is not a party to this suit. The Compact provides for the operation of "covered games", or "Class III gaming activities", on the Tribe's "Indian lands" as a means of generating revenues for purposes authorized by the federal Indian Gaming Regulatory Act (IGRA), 25 «U.S.C. §§ 2710 et seq. Section 2710(d) of the IGRA provides for "Class III gaming activities" on Indian lands only under certain conditions. These activities must be authorized by an ordinance or resolution adopted by the Tribe's governing body. Class III gaming must be conducted within the structure of a Tribal-State compact executed by the Tribe and the State. See 25 U.S.C. § (B) and (C) which provide:

(d)(1) Class III gaming activities shall be lawful on Indian lands only if such activities are-

(A) authorized by ordinance or resolution that-

(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands,

(i) meets the requirements of subsection (b) of this section, and

(iti) is approved by the Chairman,

(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and

(C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.

The Tribe's ordinance or resolution must be approved by the Chairman who will then publish it and the order of approval in the Federal Register. See § 2710(d)(2)(B). "Chairman" is defined as the Chairman of the National Indian Gaming Commission. 25 U.S.C. § 2703(2).

On November 15, 2004, the Council of the Tribe executed "A Resolution Authorizing a Gaming Compact with the State of Oklahoma." It provides in part:

WHEREAS, the Nation will significantly benefit by operating under the terms of a State-Tribal Gaming Compact proposed by the State-Tribal Gaming Act, Oklahoma Senate Bill 1252, enacted November 2, 2004 by vote of the people in Oklahoma as State Question 712, Title 3A, Section 261 et seq.;

WHEREAS, the State-Tribal Gaming Act requires that to become effective it must be executed by a duly authorized tribal official, and intergovernmental compacts are required to be ratified by the Council of the Cherokee Nation, under Legislative Act 15-01.

BE IT RESOLVED BY THE CHEROKEE NATION, that the Principal Chief is hereby authorized to execute the State-Tribal Gaming Compact on behalf of the Cherokee Nation, and to submit the compact as required by federal law for approval.

The Resolution acknowledges the state law requirement, under 3A 0.S. Supp.2004 § 280, for execution of the compact by a duly authorized tribal official and the tribal law requirement that '"intergovernmental compacts are required to be ratified by the Council" of the Tribe. Thus, in accordance with both provisions, the Resolution authorizes the Principal Chief to execute the Compact on behalf of the Tribe and to submit it for approval to the Secretary of the Interior (Secretary) who must publish the Compact in the Federal Register. The Compact is signed by the Principal Chief on behalf of the Tribe. The approval of the Office of the Secretary is dated December 28, 2004.

Throughout the Compact, the Tribe is referred to as the "Enterprise" which is defined as:

[TJhe tribe or the tribal agency or section of tribal management with direct responsibility for the conduct of covered games, the tribal business enterprise that conducts covered games, or a person, corporation or other entity that has entered into a management contract with the tribe to conduct covered games, in accordance with IGRA. The names, addresses and identifying information of any covered game employees shall be forwarded to the SCA [State Compliance Agency] at least annually. In any event, the tribe shall have the ultimate responsibility for ensuring that the tribe or enterprise fulfills the responsibilities under this Compact. For purposes of enforcement, the tribe is deemed to have made all promises for the enterprise;...

The Compact requires the Tribe, or Enterprise which manages the casino's operations, to maintain "public liability insurance" for the purpose of covering and satisfying tort claims. The "Articles of Organization of a Cherokee Nation Limited Liability Company" was executed on April 19, 2006, denoting the name of the limited liability company as "Cherokee Nation Enterprises, LLC." It is signed by the resident agent in Indian Country, Robert A. Huffman, Jr., for the stated purpose of forming a Cherokee Nation limited liability company and provides the following as to "Membership" of the Company:

Ownership of the company shall be vested in its membership. The sole and exclusive member of the company shall be the Cherokee Nation, a federally recognized Indian tribe, or its successors or assigns. (Emphasis added.)

The Operating Agreement of Cherokee Nation Enterprises, LL.C. was executed July 14, 2006. It provides that the "Member"" of the Agreement, Cherokee Nation Businesses, LL.C., (CNB), enters into the Agreement to adopt an operating agreement for CNE as the "Company" under the Cherokee Nation Limited Liability Act, Cherokee Nation Legislative Act 32-04. It provides that the Company's sole Member is CNB, a single-member Cherokee Nation LL.C. which is wholly-owned by the Tribe. It also explains the Tribe structured CNB and CNE so that each of them shares in the Tribe's federal tax immunity. Operating Agreement, Art. 1.6.3. It refers to the Cherokee Nation Limited Liability Company Act, Cherokee Nation Legislative Act 32-04, and the Articles of Organization. It states the purpose of the Company is to engage in any lawful activity for which limited liability companies may be organized under the Act. Operating Agreement, Art. 1.4. It also provides that the Company, Le., Cherokee Nation Enterprises, LL.C., is the successor by merger with Cherokee Nation Enterprises, Inc.

It is evident that the Compact's provisions and the Tribe's authorizing documents indicate the "Tribe" and the "Enterprise", which includes the LLC known as "CNE", all refer to the Tribe for purposes of the duties, management and responsibility of the casino in Roland, Oklahoma. The Tribe was authorized to enter into the Compact. The Compact and other documents comply with the State-Tribal Gaming Act which is authorized by the federal act, IGRA. Therefore, we reject Cossey's argument that the Cherokee Nation is not a party to this suit.

5 . It becomes unnecessary to consider Cossey's contention, and the trial court's finding, that CNE may not assert the Tribe's sovereign immunity.

6 . The 1953 statute allowed the states to assume civil and criminal jurisdiction without the consent of the tribes.

7 . Okla. Const., Art. I, § 3. Unappropriated public lands-Indian lands-Jurisdiction of United States

The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Land belonging to citizens of the United States residing without the limits of the State shall never be taxed at a higher rate than the land belonging to residents thereof. No taxes shall be imposed by the State on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use.

8 . 25 U.S.C. § 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 determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.

9 . 1994 OK 20, 896 P.2d 503. Lewis considered, inter alia, whether Congress ousted state courts of concurrent jurisdiction to consider contract actions involving land transactions between Indian buyers and statutorily created Indian housing authorities of the state.

10 . However, we noted in Lewis that Kennerly, which relied on Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), does not stand as authority defeating concurrent state jurisdiction in all civil cases, but "is concerned solely with the procedural mechanisms by which,tribal consent must be registered." Lewis, 1994 OK 20, ¶ 9, 896 P.2d at 508, quoting Kennerly, 400 U.S. at 430, 91 S.Ct. at 483. Citing Kennerly and Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106, this Court also stated:

The Court reasoned that tribal courts provide the appropriate forum for settlement of those disputes over personal and property interests of Indians which arise out of tribal relationships. The teachings of Kemnerly and Fisher do not divest state courts of cognizance over all disputes among Indians. Where, as here, state law is implicated, governs the transaction and is invoked, and there is no infringement upon tribal self-government, there can be no barrier to state cognizance. (Footnote omitted) (Emphasis in original).

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In sum, whenever Indian interests are tendered in a controversy, a state court must make a preliminary inquiry into the nature of the rights sought to be settled. Only that litigation which is explicitly withdrawn by Congress or that which infringes upon tribal self-government stands outside the boundaries of permissible state-court cognizance.... (Footnote omitted.)

Lewis v. Sac and Fox Housing Authority, 1994 OK 20, ¶¶ 10, 12, 896 P.2d at 508.

11 . Paragraph 3 of subsection (d) provides for negotiation between the Tribe and State in good faith to enter into a compact, the approval by the Secretary published in the Federal Register, and the provisions which "may be included in the Compact.

12 . "Indian lands" is defined by the IGRA, 25 U.S.C. § 2703(4) (1992), as:

(4) The term "Indian lands" means-

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.

13 . Art. I, § 6. Courts of justice open-Remedies for wrongs-Sale, denial or delay

The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.

14 . Art. I, § 1. Supreme Law of land

The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.

15 . The Compact, Part 6(A)(1) provides:

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1. During the term of this Compact, the enterprise shall maintain public liability insurance for the express purposes of covering and satisfying tort claims. The insurance shall have liability limits of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) for any one person and Two Million Dollars ($2,000,000.00) for any one occurrence for personal injury, and One Million Dollars ($1,000,000.00) for any one occurrence for property damage, hereinafter the "limit of liability", or the corresponding limits under the Governmental Tort Claims Act, whichever is greater. No tort claim shall be paid, or the subject of any award, in excess of the limit of liability.

16 . The Court was deciding whether a tribal court had jurisdiction to adjudicate the alleged tortious conduct of state wardens in executing a search warrant on reservation land for evidence of an off-reservation crime by a tribal member, and whether the tribal court had jurisdiction over claims against the state officials for the tribal member's claims brought under 42 U.S.C. § 1983.

17 . "Fee lands" are lands which have been alienated to non-Indians. See Strate v. A-1 Contractors, 520 U.S. 438, 456, 117 S.Ct. 1404, 1414, 137 L.Ed.2d 661 (1997).

18 . It was held that neither regulatory nor adjudicatory authority over the state highway accident at issue was needed to preserve "the right of reservation Indians to make their own laws and be ruled by them," citing Williams, 358 U.S., at 220, 79 S.Ct., at 271.

19 . It was held in Montana that the regulation of hunting and fishing by nonmembers of a tribe on lands no longer owned by the tribe bears no clear relationship to tribal self-government or internal relations.

20 . 2008 OK 10, ¶ 22, 192 P.3d 810, 819. We held the tribe's immunity from suit in state court was waived when it agreed to be bound by the laws of this state, including a common law negligence action for dram shop liability.

21 . In San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306, 1315 (D.C.Cir.2007), the D.C. Circuit Court of Appeals held the operation of a casino is not a traditional attribute of self-government, but was virtually identical to purely commercial casinos across the United States. It also held that most of the casino's employees and customers were not tribal members and lived off the reservation. For those reasons, it held its sovereignty was not called into question because the tribe was not simply engaged in internal governance of its territory and members.

22 . The Court enumerated previous cases in which it held the Montana exceptions applied and regulation was approved by the Court. These include the power to set conditions on entry to tribal land via licensing requirements, 128 S.Ct. at hunting regulations, and taxation. 2723 (Citations omitted).

23 . Cossey has alleged that the casino is located on land outside the reservation, making the Compact invalid. The Tribe alleged the land is held "in trust" by the federal government for the Tribe, which comes within the definition of "Indian lands" under the IGRA. At this point in the proceedings, we consider only whether the state court is a court of competent jurisdiction, a question of law. Upon remand, the trial court can rule appropriately as the facts are further developed.

24 . We offer no opinion as to the validity of Cossey's claim for injuries in this opinion. Upon remand, the adjudication of the claim will proceed in the trial court.