Griffith v. Choctaw Casino of Pocola

2009 OK 51, 230 P.3d 488, 2009 Okla. LEXIS 56, 2009 WL 1877899

• Court: Supreme Court of Oklahoma
• Decided: June 30, 2009
• Docket: 104,887
• Status: Published

Opinions

PER CURIAM.

¶ 1 One question is presented in this appeal: Is the state district court a court of competent jurisdiction as used in the gaming compact between the Choctaw Nation of Oklahoma and the State of Oklahoma such that the district court may exercise jurisdiction over this Indian-country arising negligence action filed by a casino patron against the Choctaw tribe and its casino? We answer in the affirmative.

I. Facts and Proceedings

¶2 The Choctaw Nation of Oklahoma, a federally recognized Indian tribe¹ (Tribe), owns a casino which it operates through its tribal enterprise, the Choctaw Casino of Po-cola, Oklahoma (casino). The Tribe offers class III gaming² to its casino’s patrons pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2722 (1988), and the State-Tribal Gaming Act, 3A O.S.Supp.2004, §§ 261-281, which includes the statutory “Model Tribal Gaming Compact” (compact), id. § 281, signed by the Tribe and effective February 9, 2005.³

¶ 3 Dorothy Griffith ⁴ (Griffith) went to the casino on February 11, 2005. According to Griffith, as she and other patrons approached an entrance to the casino, she heard a casino guard directing patrons to the north entrance. As Griffith followed the others toward the north entrance, she stepped into a flowerbed and fell on her face and head. Griffith was treated in a hospital emergency room in Fort Smith, Arkansas. Griffith claimed her injuries were caused by the negligence of the casino employees and agents. Griffith submitted notice of tort claim to the casino and the Tribe pursuant to the compact.⁵ When the Tribe and the casino failed to act upon the tort claim, it was deemed denied.

¶4 Griffith filed a tort action in the state district court in LeFlore County against the casino and the Tribe. The Tribe moved to dismiss the tort action on the basis of tribal sovereign immunity from suit in state court, arguing that Oklahoma state courts may not exercise jurisdiction over a sovereign Indian tribe unless Congress or the Indian tribe has clearly consented to suit in state court or otherwise clearly waived tribal immunity. Griffith responded that the Tribe consented to suit in the compact which states the “tribe consents to suit on a limited basis with respect to tort claims” and the “tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to tort claims.” The Tribe argued that exclusive jurisdiction over tort claims arising in Indian country against the Tribe was vested in the tribal courts at the time the compact was executed; the compact preserved the tribal court’s exclusive jurisdiction by declaring that the compact does not alter tribal, federal or state adjudicatory jurisdiction; and therefore, the consent to suit in a court of competent jurisdiction in the compact is consent to suit in tribal court only. The Honorable Ted A. Knight, Judge of the District Court, concluded that tribal courts and federal courts have jurisdiction over Indian tribes but state courts do not and dismissed the action.

V 5 Griffith appealed the dismissal. The Tribe moved to make this appeal a companion to the appeal from the same district court in Dye v. Choctaw Casino of Pocola, Oklahoma, No. 104,737, 2009 OK 52, 230 P.3d 507. The meaning of the phrase “court of competent jurisdiction” as used in the compact is also a pivotal issue in the Dye case. This Court denied the motion, noting the related Dye case, and assigned the appeal to the Court of Civil Appeals. Thereafter, this Court received a certified question as to whether the district court in Rogers County, Oklahoma, is a “court of competent jurisdiction” as that phrase is used in the tribal gaming compact between the Cherokee Nation and the State of Oklahoma in Cossey v. Cherokee Nation Enterprises, LLC, No. 105,-300. We withdrew this case from assignment to the Court of Civil Appeals.

¶ 6 We recently handed down our opinion in Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, 212 P.3d 447, (mandate issued June 11, 2009), holding that the state district court is a court of competent jurisdiction as that phrase is used in the Cherokee Nation’s tribal gaming compact. Today, in separate opinions in this case and in the related case of Dye v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 52, 230 P.3d 507 we determine that Oklahoma district courts are courts of competent jurisdiction as that phrase is used in Oklahoma’s statutory model tribal gaming compact and therefore the state courts may exercise jurisdiction over the tort claims against the Choctaw Nation and its casino in Pocola, Oklahoma.

II. Standard of Review

¶ 7 A compact is defined as “an interstate [intergovernmental] agreement entered into to handle a particular problem or task.” Webster’s New International Dictionary 461 (3rd ed.1961). The Tribe urges that the compact is a purely private contractual matter. However, the Model Tribal Gaming Compact may not be viewed as an ordinary private contract because it is a voter-approved statute codified in the Oklahoma Statutes. The compact is public law and must be interpreted by use of canons of statutory construction. Statutory construction is a question of law which we review de novo, without deference to the lower court. Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶ 5, 123 P.3d 5, 6.

III. The Indian Gaming Regulatory Act (IGRA)

¶ 8 In 1987, the United States Supreme Court decided that an Indian tribe may operate bingo games on an Indian reservation located in a state that permits gaming for any purpose and that state law does not apply to bingo games played predominantly by non-Indians coming onto the Indian reservation. California v. Cabazon Band of Mission Indians, 480 U.S. 202,107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). The Cabazon ruling impelled Congress to legislate in the area. Senate Report No. 100-446, reprinted in 1988 U.S.C.C.A.N. 3071 (S.Rep. No. 100-446).

¶ 9 Congress had considered the problems and benefits of Indian gaming in committee hearings for at least three years before Ca-bazon. Congress enacted Public Law 100-446, finding that gaming was a means of economic development for the tribes that would promote tribal self-sufficiency and strengthened tribal governments. 102 Stat. 2467 (1988). In Public Law 100-446, Congress legalized gaming in Indian country⁶ and provided a statutory framework for regulating gaming in Indian country in IGRA.⁷

¶ 10 Congress attempted to balance the federal, tribal and state interests in Indian gaming through a system of joint regulation in IGRA.⁸ IGRA established three classes of Indian gaming. Id. § 2703(6), (7) and (8). As to class I gaming (social games with prizes of minimal value and tribal ceremonial or celebrating games), tribal regulation is exclusive. Id. § 2710(a). As to class II gaming (bingo games played with cards, pull-tabs, lotto, punch boards and other games similar to bingo games played with cards), tribal regulation is subject to approval and oversight of the National Indian Gaming Commission. Id. § 2710(b). As to class III gaming (all gambling not included in class I or class II gaming), tribal regulation is subject to the terms of an agreement between the tribe and the state, a tribal-state compact. Id. § 2710(d).

¶ 11 In creating the tribal-state compact system and authorizing state regulation of gambling in Indian country, IGRA does not specifically address the subjects of damages to members of the public that may be caused by wrongful activity of Indian tribes and the judicial relief against the tribes. Instead, IGRA specifically authorizes the tribes and states to compact as to “any other subjects that are directly or indirectly related to the operation of gaming activities.” Id. § 2710(d)(3)(C)(vii). Tribes and states may allocate the applicable law and forum for adjudication of patron tort claims. Id. § 2710(d)(3)(C)(i), (ii).

IV. The State-Tribal Gaming Act and The Model Tribal Gaming Compact

¶ 12 In 1988, the Oklahoma Legislature authorized the Governor to negotiate and enter into cooperative agreements with federally recognized Indian tribes in furtherance of federal policy and state-tribal relations, subject to approval by a legislative Joint Committee on State-Tribal Relations.⁹ At that time, Oklahoma permitted pari-mutu-el wagering on horse races. Our governors negotiated and entered into off-track wagering compacts with numerous Indian tribes.¹⁰ The compacts are filed with the Oklahoma Secretary of the State as required by law.¹¹ 74 O.S.2001, § 1221(E). Two compacts with the Tribe in this case, filed with the Oklahoma Secretary of State on December 5, 1996, and March 28, 2001, allow that a tort claim against the Tribe may be filed in a court of competent jurisdiction and also allow a tort claimant to file suit in state district court or Tribal court, at the claimant’s option.¹²

¶ 13 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.

¶ 14 The model compact is offered, all or none, to the Indian tribes of Oklahoma, which if accepted, constitutes the gaming compact between this state and the accepting tribe for purposes of IGRA without any further action on behalf of the State of Oklahoma. Id. § 280. The model compact consists of Part 1 through Part 16. The model compact sets the fee to be paid to the state by the Indian tribe for the “substantial exclusivity and, consistent with the goals of IGRA, special opportunities for tribal economic opportunity through gaming within the external boundaries of Oklahoma in respect to the covered games.”¹⁴ It defines the games that the tribes may offer to casino patrons as a means of generating revenue as authorized by IGRA,¹⁵ places responsibility for operation and regulation of the casino with the tribe,¹⁶ and places the oversight and monitoring of class III gaming with the Office of State Finance as the state compliance agency (SCA).¹⁷

¶ 15 The model compact recites the tribe’s limited consent to suit for patron tort claims, mandates liability insurance coverage for the benefit of the public, prohibits the liability insurer from asserting tribal immunity, prescribes the procedure for casino patrons to claim damages, and expresses the tribe’s consent to suit.¹⁸ As to tort claims in Part 6(A), the compact requires the tribal enterprise¹⁹ to maintain public liability insurance to cover tort claims in the minimum amounts set out in the compact or specified in the Governmental Tort Claims Act.²⁰ Part 6(A) prescribes a procedure for seeking damages for tort claims against the enterprise. That procedure begins with notice of the tort claim to the TCA or the tribal enterprise for investigation and approval or denial; and if the tribe or tribal agency denies the claim, the claimant is authorized to file a judicial proceeding to recover damages not to exceed the limits of the mandated public liability insurance coverage. Part 6(A) requires the enterprise to make pamphlets available to the casino patrons explaining the tort claim procedure and also explaining that the procedure is exclusive and that if it is not followed, the claim shall be forever barred.²¹

¶ 16 As to suits on tort claims, the tort claimant²² is permitted to maintain a judicial proceeding for any cause arising from a tort claim subject to the limitations in Part 6(C), and the tribe²³ consents to suit subject to the monetary limits and procedural conditions in Part 6(A) and Part 6(C). The tribe also consents to suit against the enterprise in a court of competent jurisdiction,²⁴ the language at issue here.²⁵ In other words, the tribe consents to suit two times. The first time the tribe consents to suit without any mention of a court in Part 6(A)(2), and the second time it consents to suit against its enterprise with mention of a court of competent jurisdiction in Part 6(C). Even if we were to find that our state courts are not competent to entertain a suit against the tribe’s enterprise in Part 6(C), the tribe has also consented to be sued in Part 6(A)(2). We find no part in the compact where the tribe consents to suit “in tribal court only.”

¶ 17 The model compact unmistakably gives the casino patron the right to recover damages on tort claims against the Indian tribe and against the tribe’s enterprise. The compact imposes specific conditions and limits on the right: 1) it limits the amount of damages for which the tribe and/or the enterprise will be liable up to the monetary limits of Oklahoma’s governmental tort claims law, 2) it restricts enforcement of a damages award to the liability insurance and prohibits the insurer from asserting tribal immunity, 3) it prescribes special notice-of-claim procedures for recovery of damages parallel to the state governmental tort claims statutory procedure, 4) it authorizes a judicial remedy to recover tort damages, and 5) it provides the tribe’s clear and express consent to suit for damages. The compact does not, however, restrict the casino patron to tort damages under tribal law nor does it limit the casino patron to suit against the tribe or its enterprise in tribal court.

¶ 18 Although there is no language in the model compact making tribal law or tribal courts the exclusive protection for a wrongfully injured casino patron, the Tribe takes the position that Part 9 limits its consent to suit to the tribal courts only. Part 9 reads: “This compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.” Part 9 expresses intent not to “alter” whatever court has adjudicatory jurisdiction, but it does nothing to define a court of competent jurisdiction.²⁶

¶ 19 The model compact governs Indian-country gaming activities by consent of the Indian tribe. It acknowledges that the “tribe is a federally recognized tribal government possessing sovereign powers and the rights of self-government,”²⁷ that the “state and the tribe maintain a government-to-government relationship, and that this Compact will help foster mutual respect and understanding among Indians and non-Indians.”²⁸ Nothing in the compact provides that patron tort claims are to be adjudicated only in tribal court. Had that been the intent of the tribes and the state, the simple words “in tribal court only” could have been included in the compact.

¶ 20 We have carefully perused the model compact and studied the provisions in Part 6 pertaining to a casino patron’s tort claim against the tribe. We conclude that the Tribe clearly and unequivocally consented to be sued for tort damages by a casino patron, whether suit be brought in state court, federal court, or tribal court.

Y. “Court of Competent Jurisdiction”

¶ 21 Griffith took a position that the state district court is the “court of competent jurisdiction” by default because this is not a federal-question claim, the Tribe is not a citizen for purposes of diversity of citizenship, and the Tribe had no tribal courts when the statutory compact was negotiated, passed by the Oklahoma Legislature, approved by a vote of the people, signed by the Tribe, and/or published by the United States Secretary of the Interior. The Tribe, on the other hand, took an unsettled position that exclusive jurisdiction over Indian-country arising torts was vested in the tribal courts at the time the compact was executed, the compact preserved the tribal court’s exclusive jurisdiction, and therefore, the consent to suit in a court of competent jurisdiction in the compact is consent to suit in tribal court only.

¶ 22 The Tribe argued that this Court has already recognized that a controversy such as the instant one lies exclusively in tribal court. The Tribe relies on an unpublished order of this Court in Muskogee (Creek) Nation Gaming Commission v. The Honorable Mary Fitzgerald, District Judge, No. 104,-726. In that original action, the Creek Nation asked this Court to prohibit the state district court judge from proceeding further in Mamvarring v. Muskogee (Creek) Nation Gaming Commission, No. CJ-207-745, Tulsa County District Court. This Court assumed original jurisdiction and issued the writ in an unpublished order. An unpublished order has no precedential value. Okla.Sup.Ct. R.1.200(b)(l) and (7), 12 O.S.2001, ch. 15, app. I (Disposition of a case without a formal published opinion means that the Court did not believe the case involved any new point of law making the decision of value as precedent.). The non-precedential order in. the Muskogee (Creek) Nation Gaming Commission case settled an issue for the involved parties only. An unpublished order is the law of the case but not the law of the State.

¶ 23 The Tribe also made a very tenuous argument that the meaning of the words “court of competent jurisdiction” “are not for this Court to decide ” because Part 12 of the compact expressly provides that interpretation issues shall be decided in arbitration with review in the federal courts. Part 12 of the compact deals with resolution of disputes between the parties-the tribe and the state. Part 12(2) is the “parties consent to the jurisdiction of such arbitration [American Arbitration Association] forum and court [federal district court] for such limited purposes and no other, and each waives immunity with respect thereto.” Without ruling, we express doubt that this is a dispute contemplated by Part 12 of the compact.

¶ 24 The phrase “court of competent jurisdiction” as used in federal statutes has long been construed to mean federal and state courts, Blackburn v. Portland Gold Mining Co., 175 U.S. 571, 20 S.Ct. 222, 44 L.Ed. 276 (1900), where the statute did not “in express language prescribe either a Federal court or a state court, and did not provide for exclusive or concurrent jurisdiction.” Shoshone Mining Co. v. Rutter, 177 U.S. 505, 506, 20 S.Ct. 726, 44 L.Ed. 864 (1900). State jurisprudence is in accord. Lewis v. Sac and Fox Tribe of Okla. Housing Authority, 1994 OK 20, ¶ 15, 896 P.2d 503, 509-510.

¶ 25 Federal, state, and even tribal laws utilize the phrase “court of competent jurisdiction.”²⁹ Under basic rules of federal statutory construction, where the statute does not define its terms, they must be given their ordinary and natural meaning, Smith v. U.S., 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993); and if the phrase is not commonly understood, the court will inquire into the contemporaneous understanding, Roadway Express, Inc. v. Piper, 447 U.S. 752, 759, 100 S.Ct. 2455, 2460, 65 L.Ed.2d 488 (1980), or the common law meaning of the phrase. Gilbert v. U.S., 370 U.S. 650, 655, 82 S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962).

¶ 26 We recognize that as a matter of federal law, tribal immunity from suit in state court is not subject to diminution by the states and that an Indian tribe is subject to suit where Congress has authorized the suit or the tribe has waived immunity. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 756, 118 S.Ct. 1700, 1703, 140 L.Ed.2d 981 (1998). We also recognize that a tribe’s waiver of immunity to suit in state court does not require specific or magic words-an arbitration provision together with a choice-of-law provision may constitute an unequivocal waiver of tribal immunity to suit in state court. C & L Enterprises, Inc. v. Citizens Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 422, 121 S.Ct. 1589, 1595-1596, 149 L.Ed.2d 623 (2001). Contrary to the no-magic-words ruling in C & L Enterprises, the Tribe insists that its consent to suit in the compact is not consent to suit in state court unless it literally uses the words “consents to suit in state court.” We conclude that the state district court is a court of competent jurisdiction as that term is used in the Model Tribal Gaming Compact codified at 3A O.S. Supp.2004, § 281. Our conclusion does not change, diminish, or expand the jurisdiction of tribal courts nor does it take away the right of a tort claimant to select the forum-state, federal, or tribal-to file a tort action.

VI. Summary

¶ 27 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 only” 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.

¶ 28 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.

DISMISSAL ORDER OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

TAYLOR, V.C.J. (by separate writing), and OPAL A (by separate writing), WATT, WINCHESTER, and COLBERT, JJ., concur. KAUGER, J., (by separate writing) concurs in part and dissents in part. EDMONDSON, C.J., and HARGRAVE and REIF (by separate writing), JJ., dissent.

1 . Notice of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs published in the Federal Register on April 4, 2008. 73 FR 18553-01. The Bureau of Indian Affairs lists 38 federally-recognized Indian tribes in Oklahoma in its notice published in the Federal Registry on July 12, 2002.

2 . Class III gaming is high-stakes casino-style gambling such as electronic games of chance, slot machines and banking card games. 25 U.S.C. § 2703(8); 3A O.S.Supp.2004, § 281, Part 3(5); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 48 n. 1, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

3 . The Tribe duly executed the compact and submitted it to the Secretary of the Interior for approval. The Secretary of the Interior did not approve the compact. The compact was considered approved forty-five days after its submission, 25 U.S.C. § 2710(d)(7)(C), and became effective February 9, 2005, the date notice was published in the Federal Register. 70 FR 6903.

4 . There are no allegations that Dorothy Griffith is a member of the Choctaw Nation or that she is subject to tribal regulation as a tribal member.

5 . In Part 6, the compact sets forth a pre-judicial procedure similar to that in the state's statutory regime for governmental tort claims. The prejudicial procedure requires a tort claimant to give notice of the claim to the Indian tribe and its enterprise as a prerequisite to filing a judicial proceeding. If the tribe or the enterprise does not act upon the notice, the tort claim is deemed denied. Upon denial of the claim, the claimant may seek a judicial remedy.

6 . 18 U.S.C. § 1166 legalizes Indian-country gaming conducted in compliance with IGRA; imposes state gambling law, including the licensing, regulation, or prohibition of gambling, upon any other Indian-country gambling in the same manner and to the same extent elsewhere in the state; and places jurisdiction with the United States to prosecute violations of the state gambling laws unless the Indian tribe consents to state jurisdiction. 18 U.S.C. §§ 1167 and 1168 criminalize thefts from Indian casinos.

7 . Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2722 (1988).

8 .IGRA provided a statutory basis for the operation and regulation of class III gaming by Indian tribes and for the adoption of federal standards for class II gaming on Indian lands, 25 U.S.C. § 2702; created the National Indian Gaming Commission within the U.S. Department of Interior, id. § 2704, to monitor class II gaming operations and to approve tribal ordinances and tribal management contracts for class II and class III gaming, id. § 2706; and established a tribal-state compact system to regulate class III gaming. Id. § 2710.

9 . 1988 Okla. Sess. Laws, ch. 160 (codified at 74 O.S.Supp.1988, §§ 1221-1222). In 1989, the Oklahoma Legislature amended § 1221 to also authorize political subdivisions to enter into agreements with the tribes on subjects of mutual interest such as law enforcement. 1989 Okla. Sess. Laws, ch. 296, § 1. In 1991, the Legislature required cooperative agreements, upon approval by the Joint Committee on State-Tribal Relations, to be filed with the Secretary of State. 1991 Okla. Sess. Laws, ch. 202, § 2 (codified at 74 O.S.1991, § 1221(E)). In 1993, the Legislature provided for the Oklahoma State Bureau of Investigation to monitor any Indian gaming compacts approved under §§ 1221-1222. 1993 Okla. Sess. Laws, ch. 305, § 1 (codified at 74 O.S.Supp.1993, § 1223). Further, in 1992, the Oklahoma Legislature authorized the Governor to enter into cigarette and tobacco products tax compacts with the tribes. 1992 Okla. Sess. Laws, ch. 339 (codified at 68 O.S.Supp.1992, § 34).

10 . The U.S. Supreme Court has not determined where the authority lies within a state’s governmental framework to compact with Indian tribes. It has ruled that where the involved federal statute is silent on the issue of state authority, that issue will be determined under state law. See Washington v. Confederated Bands and Tribes of the Yakima Indian Nations, 439 U.S. 463, 493 n. 39, 99 S.Ct. 740, 757 n. 39, 58 L.Ed.2d 740 (1979); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951). IGRA is silent as to where state authority lies to enter into gaming compacts with Indian tribes.

11 . We note that several of the off-track wagering compacts filed with the Oklahoma Secretary of State include a notice-of-tort-claim procedure and authorize a tort claimant to file suit against the tribe only in tribal court. The following compacts provide that "upon denial of a claim redress must be sought exclusively in Tribe's Courts”: 1) Peoria Tribe of Indians filed October 18, 2004, 2) Seneca-Cayuga Tribe filed October 18, 2001, and 3) Absentee Shawnee Tribe filed March 28, 2001. The following compacts, in similar language, provide that "upon denial of a claim redress must be sought exclusively in Nation's Courts”: 1) Chickasaw Nation filed August 2, 2004, 2) Ponca Tribe filed October 19, 2001, and 3) Kaw Nation filed March 28, 2001. Two compacts provide for suit in the Court of Indian Offenses created in the Code of Federal Regulations and referred to as CFR courts. The compact with the Quapaw Tribe filed January 29, 2002, provides: "Such notices shall explain that upon denial of a claim redress must be sought exclusively against the operator in C.F.R. Court. Such notices will also indicate that the Quapaw Tribe of Oklahoma does not in any way agree to be amenable to suit for any reason.” The compact with Seminole Nation filed March 28, 2001, provides: "No action for any cause arising from personal injury, property damage ... shall be maintained unless valid notice is given and the action is commenced in a Tribe’s CFR court.” The compact with the Comanche Tribe filed March 20, 2001, is different. It provides: "Comanche hereby transfers to the State of Oklahoma concurrent civil and criminal jurisdiction, except for taxing authority, to enforce the Act and Rules ... [and any] violation of the laws of the State of Oklahoma, which shall be enforceable in a court of competent jurisdiction.”

With the exception of the Comanche compact, these compacts also require public liability insurance which "shall include an endorsement that the insurer shall not invoke tribal sovereign immunity up to the limits of the policy ... [and that] the Tribe explicitly waives its immunity from suit.” They also provide that the "compact shall be governed and construed in accordance with the laws of the United States, the State, and the laws of the Nation [or Tribe], whichever are applicable.

Our research does not reveal that any of these compacts has been the subject of a suit in state court. We note these compacts only for the historical value.

12 . Both of the off-track wagering compacts of the Tribe include a notice-of-tort-claim procedure for the patrons as a prerequisite to filing suit: "No action for any cause arising from personal injury, property damage, or patron gaming dispute shall be maintained unless valid notice has been given and the action is commenced in a court of competent jurisdiction within 180 days after denial of the claim as set forth herein.” Both provide that "upon exhaustion of any claim against the Tribe properly filed as provided above, the claimant, may, at his or her option, file an action in either the state district court, or the Tribal Court on the claim.” We note these compacts only for the historical value.

13 . The voters were informed of the contents of the State-Tribal Gaming Act in the ballot title. The Ballot Title in the legislative referendum proposing enactment of State-Tribal Gaming Act reads:

This measure creates the State-Tribal Gaming Act. It would allow some types of gaming machines at some horse race tracks in this state. The Oklahoma Horse Racing Commission would oversee the new types of gaming machines. It would require that a portion of the money wagered on such gaming be paid to the state. Some of the money would go to purses for horse races. Some of the money would go to the horse race tracks. The measure also provides a model compact which Indian tribes may enter into and then operate such gaming machines on Indian lands. The model compact provides regulatory controls for the gaming authorized by the compact. The Office of State Finance would have the authority to oversee this gaming by the tribes. The state’s portion of the money from the gaming authorized by this act would go for treatment of compulsive gambling disorders, to the Education Reform Revolving Fund and for college scholarships.

2004 Okla.Sess.Laws, ch. 316.

14 . 3A O.S.Supp.2004, § 281, Part 11(A).

15 . Id. § 281, Part 3.

16 . ⅞§ 281, Parts 4 & 5.

17 . Id. § 281, Part 8 (entitled STATE MONITORING OF COMPACT, which authorizes state oversight of tribal regulation of class III gaming for compliance with state law as well as federal or tribal law). The term "monitoring” is used in the compact similar to IGRA's use of that term in describing the powers of the National Indian Gaming Commission that regulates and oversees the tribal regulation of class II gaming. 25 U.S.C. § 2706(b).

18 . Id. § 281, Part 6(A) (relating to tort claims), Part 6(B) (relating to prize claims), and Part 6(C) (relating to suits against the tribe or tribal agency).

19 . Id. § 281, Part 3(13)(defining the tribal enterprise as the tribe or tribal agency).

20 . The state statutory regime codified at 51 O.S. 2001, §§ 151-170 waives the state’s and its political subdivisions’ governmental immunity for tort claims and allows the state to be sued in a court of competent jurisdiction. Id. § 152(1).

21 . Section 281, Part 6(A) of the model compact reads:

A. Tort Claims. The enterprise shall ensure that patrons of a facility are afforded due process in seeking and receiving just and reasonable compensation for a tort claim for personal injury or property damage against the enterprise arising out of incidents occurring at a facility, hereinafter "tort claim”, as follows:

1. During the term of this Compact, the enterprise shall maintain public liability insurance for the express purpose 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 be the subject of any award, in excess of the limit of liability;

2. The 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. No consents to suit with respect to tort claims, or as to any other claims against the tribe shall be deemed to have been made under this Compact, except as provided in subsections B and C of this Part;

3. The enterprise's insurance policy shall include an endorsement providing that the insurer may not invoke tribal sovereign immunity in connection with any claim made within the limit of liability if the claim complies with the limited consent provisions of subsection C of this Part. Copies of all such insurance policies shall be forwarded to the SCA;

4. Any patron having a tort claim shall file a written tort claim notice by deliveiy to the enterprise or the TCA. The date the tort claim notice is filed with the enterprise or the TCA shall be deemed the official date of filing the tort claim notice. The tort claim notice shall be filed within one (1) year of the date of the event which allegedly caused the claimed loss. Failure to file the tort claim notice during such period of time shall forever bar such tort claim; provided that a tort claim notice filed with the enterprise or the TCA more than ninety (90) days, but within one (1) year, after the event shall be deemed to be timely filed, but any judgment thereon shall be reduced by ten percent (10%).

5. If the tort claim notice is filed with the TCA, the TCA shall forward a copy of the tort claim to the enterprise and the SCA within forty-eight (48) hours of filing, and if the tort claim notice is filed with the enterprise, the enterprise shall forward a copy of the tort claim to the TCA and the SCA within forty-eight (48) hours of filing;

6. The tort claim notice shall state the date, time, place and circumstances of the incident upon which the tort claim is based, the identity of any persons known to have information regarding the incident, including employees or others involved in or who witnessed the incident, the amount of compensation and the basis for said relief; the name, address and telephone number of the claimant, and the name, address and telephone number of any representative authorized to act or settle the claim on behalf of the claimant;

7. All tort claim notices shall be signed by the claimant. The rules and regulations may additionally require that the tort claim notices be signed under oath. The rules and regulations [TCA. rules and regulations as defined in Part 3(22) ] may also require that as a condition of prosecuting tort claims, the claimant shall appear to be interviewed or deposed at least once under reasonable circumstances, which shall include the attendance of the claimant’s legal counsel if requested; provided that the enterprise shall afford claimant at least thirty (30) days' written notice of the interview or deposition; and provided further that the claimant’s failure to appear without cause for any interview or deposition properly noticed pursuant to this paragraph shall be deemed a voluntary withdrawal of the tort claim;

8. The enterprise shall promptly review, investigate, and make a determination regarding the tort claim. Any portion of a tort claim which is unresolved shall be deemed denied if the enterprise fails to notify the claimant in writing of its approval within ninety (90) days of the filing date, unless the parties by written agreement extend the date by which a denial shall be deemed issued if no other action is taken. Each extension shall be for no more than ninety (90) days, but there shall be no limit on the number of written agreements for extensions, provided that no written agreement for extension shall be valid unless signed by the claimant and an authorized representative of the enterprise. The claimant and the enterprise may continue attempts to settle a claim beyond an extended date; provided, settlement negotiations shall not extend the date of denial in the absence of a written agreement for extension as required by this paragraph; ■

9. A judicial proceeding for any cause arising from a tort claim may be maintained in accordance with and subject to the limitations of subsection C of this Part only if the following requirements have been met:

a. the claimant has followed all procedures required by this Part, including, without limitation, the delivery of a valid and timely written tort claim notice to the enterprise,

b. the enterprise has denied the tort claim, and

c. the claimant has filed the judicial proceeding no later than the one-hundred-eightieth day after denial of the claim by the enterprise; provided, that neither the claimant nor the enterprise may agree to extend the time to commence a judicial proceeding; and

10. Notices explaining the procedure and time limitations with respect to making a tort claim shall be prominently posted in the facility. Such notices shall explain the method and places for making a tort claim, that this procedure is the exclusive method of making a tort claim, and that claims that do not follow these procedures shall be forever barred. The enterprise shall make pamphlets containing the requirements in this subsection readily available to all patrons of the facility and shall provide such pamphlets to a claimant within five (5) days of the filing of a claim.

(Bold Added.)

22 . Id. § 281, Part 6(A)(9).

23 . id. § 281, Part 6(A)(2).

24 . Id. § 281, Part 6(C).

25 . Section 281, Part 6(C) applicable to tort claims reads:

C. Limited Consent to Suit for Tort Claims and Prize Claims. 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. A tort claim shall not be assignable. In the event any assignment of the tort claim is made in violation of this Compact, or any person other than the patron claiming the injury becomes a party to any action hereunder, this consent shall be deemed revoked for all purposes. Notwithstanding the foregoing, consent to suit shall not be revoked if an action on a tort claim is filed by (i) a court appointed representative of a claimant's estate, (ii) an indispensable party, or (iii) a-health provider or other party subrogated to the claimant’s rights by virtue of any insurance policy; provided, that nothing herein is intended to, or shall constitute a consent to suit against the enterprise as to such party except to the extent such party’s claim is:

a. in lieu of and identical to the claim that would have been made by the claimant directly but for the appointment of said representative or indispensable party, and participation of such other party is in lieu of and not in addition to pursuit of the claim by the patron, and

b. the claim of such other party would have been subject to a consent to suit hereunder if it had been made by the claimant directly; and

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(Bold added.)

26 .The state court adjudicatory power is fixed by our state constitution, Okla. Const, art. VII, subject to our federal constitution, Okla. Const, art. I, § 1, and protected from legislative encroachment by our separation of powers rule, Okla. Const, art. IV, § 1. Generally a state statute such as the model compact cannot alter the adjudicatory jurisdiction constitutionally vested in our state courts nor can a state statute alter federal or tribal adjudicatory powers.

27 . 3A O.S.Supp.2004, § 281, Part 2(1).

28 . U§ 281, Part 2(3).

29 . The federal statute, 15 U.S.C. § 3007 (1978), provides for jurisdiction over a civil action involving interstate horse racing in the federal district court in the host state or the off-track state concurrent with that of any state court of competent jurisdiction located in the host state or the off-track state. The Okla. Const, art. VIII, § 1 requires that elected state officers shall automatically be suspended upon their being declared guilty of a felony by a court of competent jurisdiction. And, the Constitution of the Choctaw Nation (July 9, 1983), art. VI, § 5, provides that "[n]o person who has been convicted of a felony by a court of competent jurisdiction shall be eligible to hold any elective or appointive office in the Choctaw Nation.” (Bold added.)