STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-1001
KATHRYN C. ORTEGO
VERSUS
TUNICA BILOXI INDIANS OF LA d/b/a PARAGON CASINO
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 2 PARISH OF RAPIDES, NO. 01-07642 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Michael G. Sullivan, Judges.
AFFIRMED.
Knight E. Doggett Flournoy & Doggett Post Office Box 1270 Alexandria, LA 71309 (318) 487-9858 COUNSEL FOR PLAINTIFF/APPELLANT: Kathryn C. Ortego
Joseph B. Guilbeau Juge, Napolitano, Guilbeau, Ruli & Frieman 3838 N. Causeway Boulevard, Suite 2500 Metairie, LA 70002 (504) 831-7270 COUNSEL FOR DEFENDANT/APPELLEE: Tunica Biloxi Indians of LA, d/b/a Paragon Casino Brent P. Frederick Breazeale, Sachse & Wilson, L.L.P. Post Office Box 3197 Baton Rouge, LA 70821 (225) 387-4000 COUNSEL FOR DEFENDANT/APPELLEE: Tunica Biloxi Indians of LA, d/b/a Paragon Casino AMY, Judge.
In this workers’ compensation matter, the claimant, who allegedly suffered a
work-related accident in March 2001 at the employer-tribe’s casino, filed a disputed-
claim form contesting the employer’s termination of her benefits. More than a year
after the disputed claim was filed, and after the employer had answered, prepared pre-
trial statements, and had twice fixed the case for trial, it filed an exception of lack of
subject matter jurisdiction, citing a new tribal ordinance providing for the resolution
of workers’ compensation disputes exclusively within tribal courts. The workers’
compensation judge granted the exception and dismissed the claimant’s cause of
action. From this judgment, the claimant appeals. We affirm.
Factual and Procedural Background
The record indicates that the claimant, Kathryn Ortego, was employed as a
barback/laborer by the Tunica-Biloxi Indians of Louisiana, d/b/a Paragon Casino (“the
Tribe”), in Marksville, Louisiana. While at work on the morning of March 11, 2001,
Ms. Ortego sustained chemical burns. She reported the injury to her supervisors that
same morning and sought medical assistance. As a result of her injury, Ms. Ortego
received workers’ compensation benefits until May 2001, when they were terminated.
Ms. Ortego filed a disputed claim with the Office of Workers’ Compensation on
October 26, 2001. The record reflects that over approximately the next year and a
half, the Tribe answered Ms. Ortego’s disputed-claim petition, prepared pre-trial
statements, and agreed to have the case fixed for hearing on two separate occasions.
On March 7, 2003, the Tribe filed a declinatory exception of lack of subject
matter jurisdiction, arguing that it was immune from suit due to its sovereign status;
that it had not waived this immunity; and that the 1992 Class III gaming compact between it and the State of Louisiana specifically reserved jurisdiction to the Tribe
over civil matters relevant to gaming. The Tribe further pointed out that a recent tribal
ordinance dictated that workers’ compensation claims were to be heard by tribal
courts and that these tribunals were to apply Louisiana workers’ compensation law,
as outlined in La.R.S. 23:10, et seq. In his written reasons for judgment, the workers’
compensation judge noted that sovereign status had been conferred upon the Tribe and
that it had not waived its immunity to suit. Moreover, he noted, the recent tribal
constitutional ordinance reaffirmed the Tribe’s immunity and provided that Tunica-
Biloxi court was the sole forum for resolution of workers’ compensation suits arising
from activities conducted on tribal land. Accordingly, the workers’ compensation
judge granted the Tribe’s exception and dismissed Ms. Ortego’s claims. In her sole
assignment of error on appeal, Ms. Ortego contends that the workers’ compensation
judge erred as a matter of law in granting the Tribe’s exception of lack of subject
matter jurisdiction and in dismissing her claims against the Tribe and its workers’
compensation insurer. For the following reasons, we affirm.
Discussion
On appeal, Ms. Ortego insists that the Class III gaming compact between the
Tribe and the State clearly indicates that the State retained jurisdiction over workers’
compensation claims arising from tribal gaming enterprises. Ms. Ortego cites several
provisions of the compact in support of her position. First, she argues, §1(A) states
that where the compact is silent, the laws of Louisiana apply. Ms. Ortego observes
that the compact does not address workers’ compensation claims; as such, she posits,
Louisiana workers’ compensation law is in effect with respect to tribal business
2 enterprises. Ms. Ortego’s second contention is that a reading of §3(B)1 and §3(C)2
evinces the drafters’ intent that the State retain jurisdiction over constitutionally
mandated matters such as workers’ compensation. Third, Ms. Ortego points out that
§§10(A)(4)(a), (c), and (d) of the compact3 require the Tribe to maintain workers’
1 Section 3(B) of the compact states as follows: The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall retain all sovereignty and immunity to suit while discussing, negotiating, or confecting this Tribal-State Compact. The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana intend and agree that all issues purely of Tribal law are to be determined in accordance with the legal mechanisms of the Tunica-Biloxi Indian Tribe of Louisiana, and that all other issues are to be determined in accordance with federal law, where applicable, the provisions of this Tribal-State Compact, where applicable, and the laws of the State of Louisiana, where applicable. 2 Section 3(C) of the compact provides as follows: In the interest of clarity of authority, and to preserve and to protect the health, safety, and welfare of all, the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall: (1) Apply all federal laws applicable to Indian gaming, lands, or subject matter as being fully operative and applicable within all Tribal lands and areas of gaming activity. (2) Preserve the full territorial and subject matter jurisdiction of the Tunica-Biloxi Indian Tribe of Louisiana. (3) Preserve the full territorial and subject matter jurisdiction of the State of Louisiana. (4) Accord the State of Louisiana concurrent criminal jurisdiction and concurrent law enforcement authority within the lands of the Tunica- Biloxi Indian Tribe of Louisiana and the State of Louisiana, when exercising any subject matter jurisdiction accorded the State of Louisiana pursuant to this Tribal-State Compact. (5) Accord the Tunica-Biloxi Indian Tribe of Louisiana, including its duly constituted Tribal law enforcement authorities, full territorial jurisdiction, as well as concurrent law enforcement authority within the lands of the Tunica-Biloxi Indian Tribe of Louisiana and within any Parishes where they have been duly commissioned by a local law enforcement agency, when exercising any subject matter jurisdiction accorded the Tunica-Biloxi Indian Tribe of Louisiana pursuant to this Tribal-State Compact, or when exercising the authority accorded to the Tunica-Biloxi Indian Tribe of Louisiana pursuant to any agreements made with a local law enforcement agency. 3 Section §10(A)(4), subsections (a), (c), and (d) of the compact state as follows: (A) All Class III gaming shall be conducting [sic] in such a manner that ensures, to the maximum extent practicable, that it is secure, honest, and that the interests of the Tunica-Biloxi Indian Tribe of Louisiana, the State of Louisiana, and the public are protected at all times. The State of Louisiana shall fully cooperate with and assist the Tunica-Biloxi Indian Tribe of Louisiana in meeting its obligations in this regard. ....
(4) (a) The Tunica-Biloxi Indian Tribe of Louisiana shall maintain comprehensive general liability and workers’ compensation
3 compensation insurance and mandate that the terms of each policy preclude the Tribe
from claiming sovereign immunity in defense of liability. Ms. Ortego argues that
these provisions of the compact suggest that the Tribe does not have sovereign
immunity with respect to workers’ compensation claims such as hers. Fourth, Ms.
Ortego points out that §2(H)4 plainly indicates that the State did not cede its
jurisdiction over workers’ compensation claims to the Tribe. In her fifth argument,
Ms. Ortego points out that §10(A)(6)5 of the compact gives the Tribe jurisdiction over
tort claims initiated by casino patrons. She notes that this jurisdiction is expressly
given and contends that a similar grant of workers’ compensation jurisdiction to the
insurance coverage from any admitted or authorized insurer subject to direct action under Louisiana law. Such policies shall maintain ample liability and property loss coverage to protect against any foreseeable loss or risk. Such insurance policies shall not be on an claims-made basis. The coverage for such loss or risk shall be the greater of $4,000,000 or twice the insurable risk of the insured. ....
(c) The gaming management company and all other entities contracting with the Tunica-Biloxi Indian Tribe of Louisiana shall maintain such policies of comprehensive general liability and workers’ compensation insurance as required by State law, and shall maintain proof of such continuous coverage. (d) Each such policy of insurance, shall contain, or be deemed to contain, an exclusion that the insurer or the insured shall not be entitled to make any claim of sovereign immunity in defense of liability, but shall be liable, including court costs and attorneys’ fees incurred by the State of Louisiana, for its insured, as though the insured were a Louisiana domiciliary, as well as a provision requiring immediate notice to the State of Louisiana and the Tunica-Biloxi Indian Tribe of Louisiana of any change in coverage or default or delay in payment of premium or other occurrence which threatens the continuity or amount of coverage. 4 Section 2(H) of the compact states as follows: The jurisdiction and waiver of sovereign immunity provided by this Tribal-State Compact shall be strictly limited to matters and issues arising directly from this Tribal-State Compact. 5 Section 10(A)(6) of the compact states as follows: The Tunica-Biloxi Indian Tribe of Louisiana shall maintain reasonable procedures for the disposition of tort claims arising from alleged injuries to patrons of its gaming facilities and operation. The Tunica-Biloxi Indian Tribe of Louisiana shall not be deemed to have waived its sovereign immunity from suit with respect to such claims by virtue of any provision of this Tribal-State Compact, but may adopt a remedial system analogous to that available for similar claims arising against the State of Louisiana.
4 Tribe would have likewise been expressly conferred by the compact. Ms. Ortego
observes that the compact is silent with respect to workers’ compensation jurisdiction;
as such, one could infer that it was not given to the Tribe. Finally, Ms. Ortego
emphasizes that according to its terms6, the compact could only be amended by a
written instrument signed by the tribal chairman and by the governor of Louisiana,
with the Secretary of the Interior’s approval. Ms. Ortego notes that the compact
comprises the entire agreement between the Tribe and the State of Louisiana, and the
newly enacted ordinance purporting to give the Tribe exclusive jurisdiction over
workers’ compensation matters cannot supercede the compact because the ordinance
was not signed by the governor of Louisiana and was not approved by the Secretary
of the Interior. Ms. Ortego cites each of the above portions of the compact in support
of her position that her claim should have been allowed to proceed in a Louisiana
workers’ compensation court.
In reviewing the propriety of a workers’ compensation judge’s ruling as to
factual issues, an appellate court employs the manifest error—clearly wrong standard,
as set forth by the Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840
(La.1989). Whitlow v. The Shreveport Times, 02-1215 (La.App. 3 Cir. 4/23/03), 843
So.2d 665, writ denied, 03-1406 (La. 9/19/03), 853 So.2d 647. However, where a
party contends that a ruling is incorrect due to errors of law, the appellate court must
ascertain whether the ruling in question was legally correct. Belaire v. Don Shetler
6 Section 2 of the compact states, in pertinent part, as follows: (I)Relative to the conduct of Class III gaming, this Tribal-State Compact constitutes the entire agreement between the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana, and supersedes all prior written and oral agreements. This Tribal- State Compact may be amended only through a written instrument that is signed by the Tribal Chairman of the Tunica-Biloxi Indian Tribe of Louisiana and by the Governor of the State of Louisiana, and that is approved by the Secretary of the Interior of the United States of America.
5 Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723.
The Tribe based its exception of lack of subject matter jurisdiction on the
doctrines of tribal sovereign immunity and exhaustion of tribal remedies. These
doctrines were born of and developed by the federal jurisprudence. Our determination
as to the legal correctness of the workers’ compensation judge’s ruling requires that
we examine the relevant federal case law and the scant relevant jurisprudence of
Louisiana courts.
In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670 (1978), the
United States Supreme Court outlined the history of the grant of sovereign immunity,
usually conferred upon the States and foreign nations, to recognized Native American
tribes. The Supreme Court observed that “[a]s separate sovereigns pre-existing the
Constitution, tribes have historically been regarded as unconstrained by those
constitutional provisions framed specifically as limitations on federal or state
authority.” Id. at 56, 98 S.Ct. at 1675-76. The Court further noted that:
Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self- government. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832); see United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975); F. Cohen, Handbook of Federal Indian Law 122- 123 (1945). Although no longer “possessed of the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social relations.” United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886). See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).
Id. at 55, 98 S.Ct. at 1675. Moreover, the Court provided the following description
of tribal sovereign immunity and the means by which a tribe might become
susceptible to suit:
Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110,
6 63 L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165, 172- 173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But “without congressional authorization,” the “Indian Nations are exempt from suit.” United States v. United States Fidelity & Guaranty Co., supra, 309 U.S., at 512, 60 S.Ct. at 656. It is settled that a waiver of sovereign immunity “‘cannot be implied but must be unequivocally expressed.’” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting, United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).
Id. at 58-59, 98 S.Ct. at 1677.
In Santa Clara Pueblo, the Supreme Court determined the susceptibility of a
Native American tribe to suit by one of its own members. Three years after its
decision in Santa Clara Pueblo, the Supreme Court was called upon to delimit tribal
jurisdiction over non-members. In Montana v. United States, 450 U.S. 544, 565-566,
101 S.Ct. 1245, 1258 (1981), the Court issued the following criteria for exercise of
such jurisdiction:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction 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. Williams v. Lee, [358 U.S. 217,] 223 [, 79 S.Ct. 269, 272 (1959)]; Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030; Buster v. Wright, 135 F. 947, 950 (CA8); see Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-154, 100 S.Ct. 2069, 2080-2082, 65 L.Ed.2d 10. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee 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. See Fisher v. District Court, 424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106; Williams v. Lee, supra, at 220, 79 S.Ct., at 270; Montana Catholic Missions v. Missoula County, 200 U.S. 118, 128-129, 26 S.Ct. 197, 200-201, 50 L.Ed. 398; Thomas v. Gay, 169 U.S. 264, 273, 18 S.Ct. 340, 343, 42 L.Ed. 740.
The Supreme Court elaborated upon the Montana decision in Strate v. A-1
7 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 1409-1410 (1997). Justice Ginsburg,
writing for the Court, explained that:
Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare.
Justice Ginsburg added that the scope of “consensual relationships” that would subject
a non-member to tribal jurisdiction included “‘commercial dealing, contracts, leases,
or other arrangements.’ [Montana,] 450 U.S. at 565. . . .” Strate, 520 U.S. at 456-457,
117 S.Ct. at 1415.
The doctrine of tribal sovereign immunity has not been without its detractors.
The essence of the opposition to the doctrine was distilled by the Supreme Court in
Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 757-60, 118
S.Ct. 1700, 1704-1705 (1998), as follows:
The doctrine of tribal immunity came under attack a few years ago in [Oklahoma Tax Comm’n v. Citizen Band] Potawatomi [Indian Tribe of Okla., 498 U.S. 505, 111 S.Ct. 905 (1991)]. The petitioner there asked us to abandon or at least narrow the doctrine because tribal businesses had become far removed from tribal self-governance and internal affairs. We retained the doctrine, however, on the theory that Congress had failed to abrogate it in order to promote economic development and self-sufficiency. Id., at 510, 111 S.Ct., at 909-910. The rationale, it must be said, can be challenged as inapposite to modern, wide-ranging tribal enterprises extending well beyond traditional tribal customs and activities. . . . There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 14 (1973); Potawatomi, supra; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116
8 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims. These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule. Respondent does not ask us to repudiate the principle outright, but suggests instead that we confine it to reservations or to noncommercial activities. We decline to draw this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment. .... . . . The capacity of the Legislative Branch to address the issue by comprehensive legislation counsels some caution by us in this area. Congress “has occasionally authorized limited classes of suits against Indian tribes” and “has always been at liberty to dispense with such tribal immunity or to limit it.” Potawatomi, [498 U.S.] at 510, 111 S.Ct., at 910. It has not yet done so. In light of these concerns, we decline to revisit our case law and choose to defer to Congress.
Our research reveals no federal legislation negating the above-explained doctrine of
tribal sovereign immunity.
Until its holding in National Farmers Union Insurance Cos. v. Crow Tribe of
Indians, 471 U.S.845, 105 S.Ct. 2447 (1985), the Supreme Court had advanced only
one way in which a suit brought against a Native American tribe in district court might
be dismissed—sovereign immunity. However, in National Farmers Union, the Court
announced a second means by which a suit against a tribe might be dismissed: the
notion of exhaustion of tribal remedies. In National Farmers Union, a member of the
Crow Indian Tribe brought suit against the Lodge Grass School District No. 27, a
subdivision of the State of Montana, in tribal court and was awarded a judgment. The
school district and its insurer, National Farmers Union, brought a suit to enjoin the
enforcement of the tribal court’s judgment against it in federal district court under 28
U.S.C. § 1331, claiming that tribal court had no jurisdiction over the school district
and its insurer, both of whom were non-Indians. Justice Stevens, writing for the
Court, commented that: “Until petitioners [i.e., the school district and its insurer] have
9 exhausted the remedies available to them in the Tribal Court system . . . it would be
premature for the federal court to consider any relief.” National Farmers Union, 471
U.S. at 857, 105 S.Ct. at 2454.
In Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971 (1987),
the Supreme Court took under advisement a matter in which the Ninth Circuit
affirmed a district court’s decision to dismiss a suit against a tribe for lack of subject
matter jurisdiction. In its opinion, the Court indicated that the notion of exhaustion
of tribal remedies was not a function of jurisdiction but rather was a function of
comity, similar to the abstention doctrine of Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 96 S.Ct. 1236 (1976):
As the Court’s directions on remand in National Farmers Union indicate, the exhaustion rule enunciated in National Farmers Union did not deprive the federal courts of subject-matter jurisdiction. Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite. In this respect, the rule is analogous to principles of abstention articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976): even where there is concurrent jurisdiction in both the state and federal courts, deference to state proceedings renders it appropriate for the federal courts to decline jurisdiction in certain circumstances. In Colorado River, as here, strong federal policy concerns favored resolution in the nonfederal forum. See id., at 819, 96 S.Ct. at 1247.
Iowa Mutual Ins. Co., 480 U.S. at 16 n.8, 107 S.Ct. at 976. In accordance with the
newly clarified doctrine of the exhaustion of remedies, the Court determined that the
district court and the Ninth Circuit erred in dismissing the suit for lack of subject
matter jurisdiction. The Court further held that the district court was required to
determine whether a stay of its proceedings was necessary while tribal-court
proceedings were pending or whether the suit should be dismissed pursuant to the
notion of comity—viz., the prudential rule enunciated in National Farmers Union.
However, the Court instructed, “If state-court jurisdiction over Indians or activities on
10 Indian lands would interfere with tribal sovereignty and self-government, the state
courts are generally divested of jurisdiction as a matter of federal law.” Iowa Mutual,
460 U.S. at 15, 107 S.Ct. at 976. In sum, recalling principles set forth in Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894 (1982), and Santa Clara Pueblo,
the Iowa Mutual Court stated that: “Civil jurisdiction over [the activities of non-
Indians on reservation lands] presumptively lies in the tribal courts unless
affirmatively limited by a specific treaty provision or federal statute.” Id. at 18, 107
S.Ct. at 977.
The confusion that resulted from attempts to correctly apply the exhaustion
doctrine was addressed nearly ten years after Iowa Mutual, in Strate, 520 U.S. 438,
117 S.Ct. 1404. Again, Justice Ginsburg, writing for the Court, explained the
doctrine’s application vis-à-vis the Court’s prior decision in Montana:
The Court’s recognition in National Farmers that tribal courts have more extensive jurisdiction in civil cases than in criminal proceedings, and of the need to inspect relevant statutes, treaties, and other materials, does not limit Montana’s instruction. As the Court made plain in Montana, the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute. . . . In sum, we do not extract from National Farmers anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts “to explain to the parties the precise basis for accepting [or rejecting] jurisdiction.” 471 U.S., 105 S.Ct., at 2454, 857.
Strate, 520 U.S. at 449-450, 117 S.Ct. at 1411. Justice Ginsburg further clarified the
interaction of National Farmers Union, Iowa Mutual, and Montana, stating that:
11 National Farmers and Iowa Mutual, we conclude, are not at odds with, and do not displace, Montana. Both decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases. Accord, Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 427, n. 10, 109 S.Ct. 2994, 3006, n. 10, 106 L.Ed.2d 343 (1989) (opinion of White, J.).
Strate, 520 U.S. at 448, 117 S.Ct. at 1410.
Our review of the jurisprudence of the United States Fifth Circuit reveals that
it has not considered a case in which the relevance of the exhaustion doctrine was
questionable, such as in the present case, owing to the fact that no proceedings were
ongoing in tribal court when suit was filed in district court. However, in Garcia v.
Akwesasne Housing Authority, 268 F.3d 76, 81-82 (2d Cir. 2001), the Second Circuit,
faced with a situation comparable to the instant matter, offered the following analysis:
The Supreme Court recently explained: “Exhaustion was appropriate in [both National Farmers and LaPlante] [sic] because ‘Congress is committed to a policy of supporting tribal self-government . . . [which] favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.’” El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484, 143 L. Ed. 2d 635, 119 S.Ct. 1430 (1999) (quoting National Farmers, 471 U.S. at 856, 105 S.Ct. 2447) (emphasis added). We have expressed the “general principle” as follows: “Parties who challenge, under federal law, the jurisdiction of a tribal court to entertain a cause of action must first present their claim to the tribal court before seeking to defeat tribal jurisdiction in any collateral or parallel federal court proceeding.” Basil Cook Enters. [v. St. Regis Mohawk Tribe], 117 F.3d [61] at 65 [(2d Cir. 1997)]. These cases bar interference by federal courts to defeat or circumvent the ongoing exercise of jurisdiction by tribal courts; [the plaintiff’s] claims, however, are pending nowhere but in the Northern District of New York. Other circuits have required abstention even where no proceeding was pending in tribal court. See Ninigret Dev. Corp. v. Narrangansett Indian Wetoumuck Hous. Auth., 207 F.3d 21, 31 (1st Cir. 2000) (“Where applicable, this prudential doctrine has force whether or not an action actually is pending in a tribal court.”); United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996) (“The exhaustion rule does not require an action to be pending in a tribal court.”); Crawford v. Genuine Parts Co., 947 F.2d 1405, 1407 (9th Cir. 1991) (same); see generally Blake A. Watson, The Curious Case of
12 Disappearing Federal Jurisdiction over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion Abstention Doctrine, 80 Marq. L. Rev. 531, 579-80 (1997). These courts impose the exhaustion rule in any action over which a tribal court might have had “concurrent jurisdiction” if the plaintiff had chosen the tribal forum. Tsosie, 92 F.3d at 1042; see also Crawford, 947 F.2d at 1407; Ninigret Dev. Corp., 207 F.3d at 31.
In Garcia, the Second Circuit found that because the plaintiff’s claims were based on
federal law—the Age Discrimination in Employment Act—instead of tribal law,
abstention was not warranted due to the federal courts’ “virtually unflagging
obligation . . . to exercise [their] jurisdiction.” Garcia, 268 F.3d at 82 (citing Colorado
River Water Conservation Dist., 424 U.S. 800, 817, 96 S.Ct. 1236). At the district-
court level, the Tribe’s motion to dismiss for lack of subject matter jurisdiction had
been granted. The Second Circuit upheld the trial court’s determination, not on
exhaustion principles, but based on a finding that the Tribe had not waived its
sovereign immunity.
We turn now to the interpretations that Louisiana courts have given to the
federally developed concepts of sovereign immunity and exhaustion of tribal
remedies. The courts of this State have not had many occasions on which to examine
the intersection of state and tribal jurisdiction. In Barbry v. Dauzat, 576 So.2d 1013
(La.App. 3 Cir.), writ denied, 578 So.2d 136 (La.1991), the appeal focused on the
propriety of the trial court’s determination that the State had jurisdiction over a certain
child custody case pursuant to the terms of the Indian Child Welfare Act (“ICWA”).
The trial court recognized that the tribal courts had jurisdiction in some instances;
however, the applicable federal statute clearly excluded from tribal jurisdiction those
matters in which child custody had been granted in a divorce proceeding, as was the
situation on appeal. A panel of this court upheld the district court’s determination,
citing the language of the ICWA, 25 U.S.C. § 1903(1), which expressly withholds
13 jurisdiction from the tribal courts for purposes of child custody where placement was
made in a divorce proceeding in state court pursuant to 25 U.S.C. § 1911(a).
The circumstances surrounding the appeal in the matter of Bonnette v. Tunica-
Biloxi Indians, 02-919, c/w 02-920, 02-921 (La.App. 3 Cir. 5/28/03), ___So.2d ___,
were very similar to those of the instant appeal before this court. In Bonnette,
employees of the Tunica-Biloxi Tribe brought suit against their employer, asserting
that the Tribal-State compact regarding Class III gaming activities included a waiver
of sovereign immunity. The Tribe filed an exception of lack of subject matter
jurisdiction, which the trial court granted. On appeal, a panel of this court reviewed
the United States Supreme Court’s decisions regarding sovereign immunity, pointing
out that, according to C&L Enterprises Inc. v. Citizen Band Potawatomi Indian Tribe
of Okla., 532 U.S. 411, 121 S.Ct. 1589 (2001), sovereign immunity must be expressly
waived; moreover, pursuant to Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304 (2001),
a tribe “may still exercise civil jurisdiction over nonmembers who maintain
consensual relationships with the tribe or its members or when it is necessary to
protect tribal self-government or to control internal relations.” Bonnette, ___ So.2d
at ___. After examining the compact at issue, the reviewing panel of this court
determined that the trial court did not err in granting the Tribe’s exception of lack of
subject matter jurisdiction because the Tribe had not waived its sovereign immunity
via the compact. The companion cases to Bonnette, Dunn v. Tunica-Biloxi Indians,
02-920 (La.App. 3 Cir. 5/28/03), ___So.2d ___, and Jeansonne v. New Horizon Kids
Quest, Inc., 02-921 (La.App. 5/28/03), ___So.2d ___, were procedurally identical to
Bonnette and were decided by the same panel of this court. The trial court’s decision
in Dunn and in Jeansonne to grant an exception of lack of subject matter jurisdiction
was affirmed “[f]or the reasons expressed in Bonnette . . . .” Dunn, ___So.2d___;
14 Jeansonne, ___So.2d___. But see Wyble v. Tunica Biloxi Gaming Econ. Dev., 00-534
(La.App. 3 Cir. 11/2/00), 776 So.2d 501 (employee sued employer-Tribe in Louisiana
workers’ compensation court; Tribe raised no objections as to the court’s subject
matter jurisdiction).
In the present appeal, Ms. Ortego has cited several provisions of the compact
between the State of Louisiana and the Tunica-Biloxi Tribe in support of her
contention that the workers’ compensation judge erred as a matter of law in granting
the Tribe’s exception of lack of subject matter jurisdiction because the State of
Louisiana retained jurisdiction over workers’ compensation proceedings involving
tribal employees.
Our examination of the compact reveals that the Tribe did not waive its
sovereign immunity with respect to its employees’ workers’ compensation claims.
Contrary to Ms. Ortego’s first argument on appeal, the compact’s silence on this issue
does not mean that Louisiana law applies. As the Supreme Court noted in Santa
Clara Pueblo, 436 U.S. 49, 98 S.Ct. 1670, tribal sovereign immunity cannot be
inferred—instead, it must be expressly waived. The compact’s silence with respect
to tribal employees’ workers’ compensation claims does not constitute an express
waiver. The Tribe retains jurisdiction in this area through operation of the doctrine
of tribal sovereign immunity.
Ms. Ortego’s second argument is that §§3(B) and (C) of the compact evince the
intent that the State retain jurisdiction over workers’ compensation claims. Our
reading of these sections is at odds with Ms. Ortego’s proposal. Section 3(C) merely
indicates that the State retains jurisdiction in those matters in which it previously
exercised jurisdiction. Section 3(C) also states that the Tribe retains its jurisdiction,
15 which, applying the principles outlined in Montana and Strate, above, includes
jurisdiction over workers’ compensation claims.
In her third argument, Ms. Ortego points to those sections of the compact
requiring the Tribe to carry workers’ compensation insurance that, by its terms,
precludes the Tribe from asserting the defense of sovereign immunity in defense of
liability. Ms. Ortego argues in an extrapolation of these sections, that the Tribe does
not have sovereign immunity over workers’ compensation claims. Based upon our
reading of the compact, these provisions do not imply that the defense of sovereign
immunity is not available to the Tribe in case of litigation; instead, it indicates that the
Tribe may not assert sovereign liability in an attempt to avoid paying on the policy.
Moreover, the newly approved tribal ordinance at issue herein mandates that tribal
courts apply Louisiana workers’ compensation law in deciding workers’ compensation
disputes; as such, the Tribe, just as any other employer, would rely upon its workers’
compensation insurance in payment of claims in appropriate cases.
Ms. Ortego further contends that §2(H) of the compact, reproduced in footnote
4, clearly indicates that the State did not transfer its workers’ compensation
jursidiction to the Tribe. We note that this section pertains to enforcement of the
provisions of the compact itself—i.e., in the event that the State sued the Tribe to
enforce the compact, the Tribe could not assert the defense of sovereign immunity,
and vice versa. Nothing in §2(H) indicates that the State or the Tribe waived their
respective immunity as to matters other than enforcement of the compact terms.
In her fifth argument on appeal, Ms. Ortego contends that the Tribe was given
jurisdiction over tort claims in §10(A)(6) of the compact and that a similar grant of
workers’ compensation jurisdiction to the Tribe would have been express, as well.
Jurisdiction over workers’ compensation was not the State’s to give away. According
16 to the above-cited Supreme Court decisions, the Tribe, not the State, has civil
jurisdiction over disputes arising from its consensual relationships with others, even
non-members, by virtue of its sovereign status. The Court has also stated that the
Tribe would be subject to suit in federal and state courts via an express waiver of the
immunity that stems from its sovereign status. No such waiver was given in the
instant matter on appeal; as such, the Tribe retained its workers’ compensation
jurisdiction.
Finally, Ms. Ortego contends that the ordinance declaring the Tribe’s intention
to exercise sole jurisdiction over workers’ compensation claims could not have
amended the compact between the Tribe and the State because it was neither signed
by the proper dignitaries nor approved by the Secretary of the Interior7. We agree
with Ms. Ortego’s assertion that the ordinance at issue did not change the terms of the
compact. However, in this situation, it was not necessary for the ordinance to do so.
The Tribe already has jurisdiction over workers’ compensation claims owing to its
status as a sovereign recognized by the United States, not as a result of this compact.
The ordinance merely reaffirms the Tribe’s jurisdiction over such matters and
mandates that the tribal courts will apply Louisiana workers’ compensation law in
deciding disputes in this area. Ms. Ortego will therefore receive the benefit of
Louisiana workers’ compensation law whether her case proceeds in Louisiana courts
or in the tribal courts of the Tunica-Biloxi Nation.
7 The text of the Tribal Ordinance, entitled “An Ordinance to Adopt Title 23, Chapter 10 of the Louisiana Revised Statutes Concerning Workers’ Compensation,” is as follows: All of Title 23, Chapter 10 of the Louisiana Revised Statutes, shall be adopted as the law applicable to any workers’ compensation claims that arise in the jurisdiction of the Tunica-Biloxi Tribal Court. All of Part IV, “Administration of Claims”, including, but not limited to Subpart A, “Office of Workers’ Compensation Administration” and Subpart B, “Claim Resolution” and all of their subsections, shall be amended so that any reference to administration by a Hearing Officer and/or the Workers’ Compensation Administration, shall be deleted. The Administration of Workers’ Compensation Act shall be by the Tunica-Biloxi Tribal Court.
17 Based upon the above considerations, we do not find that the workers’
compensation judge erred as a matter of law in granting the Tribe’s exception of lack
of subject matter jurisdiction. However, because the Tribe did not assert only one
principle in support of its claim that the workers’ compensation court lacked subject
matter jurisdiction over Ms. Ortego’s claim, it is necessary to emphasize the precise
reasoning employed in reaching this conclusion, for the sake of clarity.
The Tribe asserted in its exception of lack of subject matter jurisdiction, and it
now asserts on appeal, that Louisiana does not have jurisdiction over Ms. Ortego’s
workers’ compensation claim for two reasons: first, due to the doctrine of exhaustion
of tribal remedies, and second, due to tribal sovereign immunity.
We note that Ms. Ortego’s claim is grounded in Louisiana workers’
compensation law and not in tribal law. We further note that Ms. Ortego initially filed
suit with the Louisiana Office of Workers’ Compensation, not in a Tunica-Biloxi
tribal court. As such, we find that the circumstances of Ms. Ortego’s case do not lend
themselves to an unbending application of the doctrine of exhaustion of tribal
remedies as propounded by the Supreme Court in National Farmers Union and Iowa
Mutual, where claims were pending in tribal court before suit was filed in federal
court. Instead, the reasoning of the Second Circuit in Garcia, reproduced above, is
appropriate in the matter before us on appeal. We determine that this case should not
have been dismissed as a matter of comity, but rather due to the asserted defense of
In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145, 102 S.Ct. 894, 905
(1982), Justice Marshall, writing for the Court, observed that “[a] nonmember who
enters the jurisdiction of the tribe remains subject to the risk that the tribe will later
exercise its sovereign power.” In the instant matter on appeal, Ms. Ortego entered the
18 jurisdiction of the Tribe, and the Tribe was free to exert its sovereign immunity with
respect to claims sustained by Ms. Ortego, a non-member, while on tribal land.
The record indicates that Ms. Ortego entered into a consensual relationship of
employment with the Tunica-Biloxi Tribe, a relationship that was governed, in part,
by the compact between the State of Louisiana and the Tribe concerning Class III
gaming. Through this consensual relationship, Ms. Ortego submitted herself to the
civil jurisdiction of the Tribe, despite her status as a non-member. See Montana, 450
U.S. 544, 101 S.Ct. 1245; Strate, 520 U.S. 438, 117 S.Ct. 1404. In light of our
determination that the Tribe has not waived its sovereign immunity to suit and that the
Tribe retained its civil jurisdiction over workers’ compensation claims brought as a
result of tribal activities, we find that Ms. Ortego’s assignment of error on appeal is
without merit.
DECREE
For the foregoing reasons, the ruling granting the defendant’s exception of lack
of subject matter jurisdiction and dismissing the plaintiff’s claims is affirmed. All
costs of this proceeding are assigned to the plaintiff-appellant, Kathryn Ortego.